Virginia, "Duty to retreat" or "Castle Doctrine"?

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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Mindflayer » Thu, 22 Sep 2011 15:01:49

A friend of my fiancée was the victim of an attempted curb stomping by a gang of thugs (who then fled to Amerindian territory but that's another story). He was lucky not be be killed or otherwise permanently injured. I have another friend that was jumped (another mugging event) who was punched so hard in the eye he suffered permanent damage. My point? If someone larger than me - hell, someone hellbent on attacking me despite my every attempt to disengage of any size - comes at me, I will use force.

When it comes to multiple attackers, read this: http://www.shastadefense.com/ArmedCitiz ... 2010-9.pdf


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby tursiops » Thu, 22 Sep 2011 15:45:08

jdonovan wrote:
albertshank wrote:As I have previously stated, I am not comfortable with "precedents" in case law.


Well then you are completely uncomfortable with the ENTIRE US legal system.

We need an excellent "castle" and "stand" law here in the Commonwealth and we need it NOW!


What we NEED even more is civil immunity when you have lawfully utilized self defense.

I would like to have something to the effect of: If there are no successful charges, and conviction on a criminal complaint, then there is no civil liability.

+1


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby albertshank » Sat, 24 Sep 2011 05:54:15

Good Morning Patriots!

I have to confess, I am somewhat uncomfortable with the criminal justice system in the United States. Not just talking about "precedents", but the issue as a whole. All too often, it seems the "system" is not a system and the "system" is not really "just". I know somewhat from whence I speak since I was a police investigator, a corrections warden and a regional jail superintendent for around twenty years of my working life. This is not an indictment or an accusation of the system since I am also a retired soldier and I learned how to take orders and keep my mouth shut. But, as in many things, there are inequities.

These inequities form a basis for experience and to some considerable degree, a "mistrust" of an assurance as to whether or not I would receive justice in using my weapon, everything else being equal. My "arguments" reside in my supposition that I would be better protected if there was a good, well-written "castle" and "stand" law in the Commonwealth. And, of course, you would be better served as well.

In my draft legislative proposal that I wrote last year, there was a solid proviso for immunity from civil liability if self-defense was judicially well-founded. Furthermore, there was an additional proviso for the Commonwealth to bear the costs of adjudication and trial in the event of justified self-defense. We were covered completely as I also included car-jacking to be an extension of one's "castle", legally linked with the ability to "stand your ground". In other words, if a criminal attempted to carjack you, the presumption is for violence and harm, thus deadly force is a lawful recourse.

Many of you may not want to believe this, but I feel there is a strong mistrust and dislike from many law enforcement officers that we are allowed to "keep and bear" here in Virginia. I firmly believe that many officers/deputies don't like this at all. There are also a multitude of unsympathetic judges who hate the fact that citizens can keep and bear arms under the Constitution. Thus, perhaps my "castle" and "stand" positions derive not so much from a fear of criminals, but from a fear of these so-called "keepers" of an often arbitrary and capricious criminal "justice" system, which, on more than one occasion has treated a law-abiding citizen in a most "criminal-like" manner. Just go to California, Chicago, New York City or Northern Virginia if you don't believe this.

Respectfully,

Albert


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby wpoppert » Sat, 24 Sep 2011 08:22:24

albertshank wrote:Many of you may not want to believe this, but I feel there is a strong mistrust and dislike from many law enforcement officers that we are allowed to "keep and bear" here in Virginia. I firmly believe that many officers/deputies don't like this at all.


I'd have to agree with you in general. I used to be a reserve NCIS agent, and most of the reservists in my unit were law enforcement officers (city, state, federal) in their civilian jobs. They were a mixed bag as far as their political views went. I have to credit a police officer, though, with educating me about the 2A. Years ago, I mentioned to a friend of mine, who was a Norfolk police officer, that I had seen someone openly carrying a pistol in the grocery store, and he didn't have a badge on his belt. I thought this was strange -- I had no idea that this was legal in Virginia. My friend informed me that this person was exercising his constitutional right, and that more people should do so. Made sense to me!


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mikalthekrout » Sun, 25 Sep 2011 10:04:23

Ohio once was like Virginia. We had the 'no trespass laws' If someone was on your property you could chase them off, with force. Then they said, well that is un fair and discriminatory. So they made it confined to your home premiss.
After a while, they said that was un fair and discriminable, so you could only use force if your life was threatened, in your own home.
Then the decided it was discriminatory and gave invaders the right to sue for bodily injury on your premisses, so now we have the 'Right to Flee' Law or your as chicken as you are White. Get the fck out yours is mine.

People that vote these laws in need to be hung, shot, Acid dipped, hot tarred and feathered, bull whipped, castrated and run over with a steam roller. Not in any particular order either.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Tweaker » Sun, 25 Sep 2011 10:22:10

"or be involved in escalations of the conflict." - JDonovan's point is critical, often missed, and difficult to avoid violating. If you were to so much as RETURN a one fingered salute that resulted in a road rage shooting, you have run afoul of this. BE AWARE and DO NOTHING to escalate or continue a conflict!

"2. You and your family are upstairs. You hear somebody break in downstairs. You head downstairs to pursue/hunt them. You're screwed. Go to jail for a long time."
Disagree. "They're coming right for us!" South Park defense works here.

"So, for example, a big-ass dude is intent on kicking your ass in a parking lot with his bare hands, you cannot pull the firearm to warn him off and avoid the ass-kicking."
That sounds like the very definition of "assault" and would easily fit the description of a threat both communicated and eminently available to be carried out. The response would not be "brandishing" IMHO, as that is a crime, but rather presenting your weapon and defending yourself from an assault (battery is the actual beating of the arse, while assault is merely the threat).
http://legal-dictionary.thefreedictionary.com/assault
"An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. "
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby jmicheals1984 » Sun, 02 Oct 2011 21:09:39

albertshank wrote:Good Morning Patriots!

I have to confess, I am somewhat uncomfortable with the criminal justice system in the United States. Not just talking about "precedents", but the issue as a whole. All too often, it seems the "system" is not a system and the "system" is not really "just". I know somewhat from whence I speak since I was a police investigator, a corrections warden and a regional jail superintendent for around twenty years of my working life. This is not an indictment or an accusation of the system since I am also a retired soldier and I learned how to take orders and keep my mouth shut. But, as in many things, there are inequities.

These inequities form a basis for experience and to some considerable degree, a "mistrust" of an assurance as to whether or not I would receive justice in using my weapon, everything else being equal. My "arguments" reside in my supposition that I would be better protected if there was a good, well-written "castle" and "stand" law in the Commonwealth. And, of course, you would be better served as well.

In my draft legislative proposal that I wrote last year, there was a solid proviso for immunity from civil liability if self-defense was judicially well-founded. Furthermore, there was an additional proviso for the Commonwealth to bear the costs of adjudication and trial in the event of justified self-defense. We were covered completely as I also included car-jacking to be an extension of one's "castle", legally linked with the ability to "stand your ground". In other words, if a criminal attempted to carjack you, the presumption is for violence and harm, thus deadly force is a lawful recourse.

Many of you may not want to believe this, but I feel there is a strong mistrust and dislike from many law enforcement officers that we are allowed to "keep and bear" here in Virginia. I firmly believe that many officers/deputies don't like this at all. There are also a multitude of unsympathetic judges who hate the fact that citizens can keep and bear arms under the Constitution. Thus, perhaps my "castle" and "stand" positions derive not so much from a fear of criminals, but from a fear of these so-called "keepers" of an often arbitrary and capricious criminal "justice" system, which, on more than one occasion has treated a law-abiding citizen in a most "criminal-like" manner. Just go to California, Chicago, New York City or Northern Virginia if you don't believe this.

Respectfully,

Albert



All of the Cops I have talked to in the City of Fredericksburg don't seem to have a problem with OCing and Conceal Carry with a permit. I talked to a Capt and he said they only follow state law and I should not be harassed by the Cops here. He only advised me that carrying a Gun into a Govt Building, School, Courthouse, Post Office or Church is illegal and that if a property owner requests that I disarm myself I would be legally bound to do so. Meaning all I have to do is put my Gun in my car.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 02 Oct 2011 21:47:24

jmicheals1984 wrote:He only advised me that carrying a Gun into a Govt Building, School, Courthouse, Post Office or Church is illegal and that if a property owner requests that I disarm myself I would be legally bound to do so. Meaning all I have to do is put my Gun in my car.


Can't carry in schools or courthouses, yes, that is correct. And carry in a church (or, more specifically, any "place of workship") is illegal "while a meeting for religious purposes is being held", unless for "good and sufficient reason" (I don't want to be the test case to find out just exactly what reason is "good" and "sufficient" enough).

But he's being overly broad by saying "government building." There is no general prohibition on carrying in a government-owned or government-operated building. Just because it's a "government building" does not automatically mean you can't carry there.

And as far as localities following state law, they pretty much have very little choice in the matter, because of how Virginia state law works. Various types of local ordinances are pre-empted by state law, unless the locality expressly is authorized by the General Assembly to implement a particular type of restriction.

So localities in general do not have legal authority to forbid either open or concealed carry. It's a state-wide law, protected by preemption of local laws to the contrary.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Yarddawg » Sun, 02 Oct 2011 21:53:59

TenchCoxe wrote:And carry in a church (or, more specifically, any "place of workship") is illegal "while a meeting for religious purposes is being held", unless for "good and sufficient reason" (I don't want to be the test case to find out just exactly what reason is "good" and "sufficient" enough).


According to Ken Cuccinelli, self defense is a "good and sufficient reason" to carry in Church.
http://www.washingtonpost.com/blogs/virginia-politics/post/cuccinelli-says-guns-in-churches-are-okay-if-theyre-for-self-defense/2011/04/11/AFvTYPLD_blog.html

As pointed out in the post, the Church itself may require you to disarm however.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 12 Oct 2011 13:40:32

Thanks for reminding us about that Yarddawg! I actually had forgotten about that.

Just be aware that an A.G.'s opinion is good and nice, but it does not carry the force of law. A court remains free to disagree with the A.G., although the court typically will give some consideration to the A.G.'s opinion. It definitely is good to have this opinion on our side, no doubt; but just keep in mind that it doesn't mean some liberal, gun-hatin' judge (yeah, I'm sure there are some of those somewhere in VA) might find a reason for disagreeing with Cuccinelli's opinion.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Yarddawg » Wed, 12 Oct 2011 18:15:14

TenchCoxe wrote:Just be aware that an A.G.'s opinion is good and nice, but it does not carry the force of law. A court remains free to disagree with the A.G., although the court typically will give some consideration to the A.G.'s opinion. It definitely is good to have this opinion on our side, no doubt; but just keep in mind that it doesn't mean some liberal, gun-hatin' judge (yeah, I'm sure there are some of those somewhere in VA) might find a reason for disagreeing with Cuccinelli's opinion.


I completely agree with you. The problem, as I see it, is how is a "good and sufficient reason" defined? What may seem to be a good and sufficient reason for me, may not be to you or someone else.

I guess that is why the lawyers get the big bucks!
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby vooduchkn » Tue, 18 Oct 2011 22:07:15

VGOF Noob here, diclaimer off... :wave:


Here in Hawaii, we cannot OC or CCW (counting the days till we leave), but we have a castle doctrine. We used to have duty to retreat. This pretty much meant if someone broke in your home, you were helpless, you have to leave.

Last year the outgoing Gov signed the castle doctrine into law. Interesting in the words it says you can use deadly force to stop a person that is or you believe is going to commit a felony in your home. Well, housebreaking or breaking and entering is a felony in Hawaii, so there you go.

Same in Utah. Someone breaks in, they have already committed a felony and a reason for the resident (notice I did not say homeowner) to use deadly force under the castle doctrine.

All above is paraphrased.

Interesting that VA doesn't have it, but makes me want to do more research in case I ever need to defend myself or family when I am there. Since I will likely be moving to VA early next year, Where is a good place to look at case law and the "rules" as they be as far as determining escalation and disparity of force?

Great site by the way.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mk4 » Tue, 18 Oct 2011 23:49:43

^^^
have a look here: http://www.handgunlaw.us/states/virginia.pdf
justifiable deadly force is based on case law precedent in va. there are a number of case references in the pdf i linked. it generally boils down to the "reasonable man / belief" test, if what i've been taught holds true.

hth.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby zerodown1 » Sat, 07 Jul 2012 10:04:27

I know this is an old post but,Virginia has no formal or legislatively enacted castle doctrine. Self defense matters are decided on based on case law. There is no formal duty to retreat but according to the courts and case law if you have opportunity to retreat without furthering the danger to yourself or others you are expected to do so. There is a formal castle doctrin pending in the VA legislature now.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby WRW » Sat, 07 Jul 2012 11:16:48

zerodown1, are you sure about that and can you reference those cases? I have read only that Va. Is a "Stand Your Ground" State.

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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby lizjimbo » Wed, 18 Jul 2012 19:17:06

Just curious about Big Bubba giving me an ass whipping. Do I need to feel my soul departing my body and begin to see that bright white light before I can save myself. What is the threshold for ass beating? Is it a near death experience or an almost near death experience? What if I shoot the Big Bubba and he dies and then I die as well from said ass beating. Can Big Bertha Bubba sue my wife for alienation of affection? Can one of you legal eagles review the VA Supreme Court decisions and let us know what they think.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 18 Jul 2012 19:28:27

lizjimbo wrote:Just curious about Big Bubba giving me an ass whipping. Do I need to feel my soul departing my body and begin to see that bright white light before I can save myself. What is the threshold for ass beating? Is it a near death experience or an almost near death experience? What if I shoot the Big Bubba and he dies and then I die as well from said ass beating. Can Big Bertha Bubba sue my wife for alienation of affection? Can one of you legal eagles review the VA Supreme Court decisions and let us know what they think.


I don't think it's possible to identify a "this is the right answer" answer for specific hypotheticals such as this. There are general rules of law - e.g., you are justified in using deadly force in defense of self if you reasonably feared that you faced an threat of imminent serious physical injury or death. Whether it was "reasonable" under the circumstances for your to fear that you were about to be seriously injured or killed is something the jury would determine. Whether the potential injury you faced would have been "serious" enough to justify use of deadly force also is something the jury would have to consider and determine. It's all about what my first-year torts professor like to call "the totality of the circumstances."

If you die as a result of the ass beating, it's a moot point. The question is whether you would face criminal prosecution for use of deadly force in shooting and killing Bubba. If you're dead too, it doesn't matter.

As far as whether Mrs. Bubba can sue your wife, that's a totally different question - now you're talking civil litigation rather than criminal prosecution. Short answer is that pretty much anybody can sue for just about anything. The question is how far will the attempted suit get. I would submit that Mrs. Bubba's suit could get shot down (pun intended) pretty quickly, because your wife didn't do anything - you killed Bubba, not your wife. Mrs. Bubba would be suing the wrong person. Now, she could try to make a claim against your estate or something. And that's why we have all these lawyers these days - to help you figure all this out.

But back to your original question - the threshold question for justifiable use of deadly force in self-defense is whether it was reasonable under the circumstances for you to have believed that you faced a threat of imminent serious physical injury or death. A slapping around - general fisticuffs - most likely won't get you there. But by the same token, you don't have to be in a situation where you believe he's going to beat you to death. Seriously physical injury is enough to justify the use of force, including deadly force, to defend yourself. I would submit that things like broken bones, avulsions, amputations, stabbing, gouging out of eyes, etc., should qualify as sufficiently "serious" physical injuries as to justify shooting your attacker.

I wish I did have more time to research and analyze the VA Sup. Ct. cases or Court of Appeals cases on the subject.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby lizjimbo » Wed, 18 Jul 2012 20:35:24

A lawyer once told me that we have a court system so we don't shoot each other!

I suspect that after someone uses deadly force because of a fear great bodily injury being visited upon their body, that it may be very difficult to articulate a sense of fear just prior to the use of force after the event is over. Once the threat is gone the fear will usually be replaced by a great sense of relief. Then you have to convince not only the LEO but also yourself that your were actually in fear of harm and/or death. I can envision a situation where one might say "Good God, I don't remember if I was in fear or not." Adrenaline does funny stuff to the mind.

Best to keep shut up until you have your lawyer with you...if it is possible to keep shut up after a trauma like that.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Kreutz » Thu, 19 Jul 2012 16:05:35

The fact this simple question even needs to be asked, let alone then result in pages of discussion with still no real answers does confirm indeed the justice system is flawed.

There shouldn't be any second guessing in a sane society about protetcing oneself from bodily harm. I'd extend that to property too.


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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby FiremanBob » Thu, 19 Jul 2012 16:23:29

Kreutz wrote:The fact this simple question even needs to be asked, let alone then result in pages of discussion with still no real answers does confirm indeed the justice system is flawed.

There shouldn't be any second guessing in a sane society about protetcing oneself from bodily harm. I'd extend that to property too.


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