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

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

Postby Palladin » Sat, 21 Jul 2012 08:54:25

FiremanBob wrote:
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.


Does this mean that you are for it or against it?


It's been quite clear to me... :dunno:
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby Kreutz » Sat, 21 Jul 2012 13:43:15

FiremanBob wrote:
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.


Does this mean that you are for it or against it?


For or against what per se?


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

Postby gearup » Sat, 21 Jul 2012 22:58:14

Very new here, but I hope this sheds SOME light............


VIRGINIA LAW ON SELF-DEFENSE
Self-defense in Virginia is an affirmative defense, the absence
of which is not an element of murder. In making this plea a
defendant implicitly admits the killing was intentional and
assumes the burden of introducing evidence of justification or
excuse that raises a reasonable doubt in the minds of the
jurors.
The law of self-defense is the law of necessity, and the
necessity relied upon must not arise out of defendant's own
misconduct. Accordingly, a defendant must reasonably fear
death or serious bodily harm to himself at the hands of his
victim. It is not essential to the right of self-defense that
the danger should in fact exist
.
If it reasonably appears to
a defendant that the danger exists, he has the right to defend
against it to the same extent, and under the same rules, as
would obtain in case the danger is real. A defendant may
always act upon reasonable appearance of danger, and whether
the danger is reasonably apparent is always to be determined
from the viewpoint of the defendant at the time he acted
.

McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, ___ (1978).


The “bare fear” of serious bodily injury, or even death,
however well-grounded, will not justify the taking of human
life. . . . [b]“There must [also] be some overt act indicative of
imminent danger at the time.”[/
b]
(citations omitted). In other
words, a defendant “must wait till some overt act is done[,] .
. . till the danger becomes imminent.” (citation omitted).
In the context of a self-defense plea, “imminent danger” is
defined as “[a]n immediate, real threat to one's safety . . .
.” (citation omitted). “There must be . . . some act menacing
present peril . . . [and][b] [t]he act . . . must be of such a
character as to afford a reasonable ground for believing there
is a design . . . to do some serious bodily harm, and imminent
danger of carrying such design into immediate execution.”[/
b]

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, ___ (2001).



Seems we have a major contradiction.




USE OF FORCE AGAINST TRESPASSER
The common law in this state has long recognized the right of a
landowner to order a trespasser to leave, and if the trespasser refuses
to go, to employ proper force to expel him, provided no breach of the
peace is committed in the outset. . . . Absent extreme circumstances,
however, such force may not endanger human life or cause great bodily
harm.
Pike v. Commonwealth, 24 Va. App. 373, 375-376, 482 S.E.2d 839, ___

JUSTIFIABLE AND EXCUSABLE HOMICIDE
Justifiable homicide in self-defense occurs where a person,
without any fault on his part in provoking or bringing on the
difficulty, kills another under reasonable apprehension of
death or great bodily harm to himself. . . .
Excusable homicide in self-defense occurs where the accused,
although in some fault in the first instance in provoking or
bringing on the difficulty, when attacked retreats as far as
possible, announces his desire for peace, and kills his
adversary from a reasonably apparent necessity to preserve his
own life or save himself from great bodily harm.
Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, ___ (1958).


VIRGINIA LAW ON DEADLY FORCE TO PROTECT PROPERTY
The threat to use deadly force by brandishing a deadly weapon
has long been considered an assault.
* * *
[T]he owner of land has no right to assault a mere trespasser
with a deadly weapon. (citation omitted). . . . [A] deadly
weapon may not be brandished solely in defense of personal
property.
Commonwealth v. Alexander, 260 Va. 238, 241, 242, 531 S.E.2d 567, ___
(2000).


BRANDISHING
Morris was charged with pointing, holding, or brandishing a
firearm in such a manner as to reasonably induce fear in the
mind of another, pursuant to Code § 18.2-282. . . .
Morris says that although Peter Molina saw the flare gun in
Morris's waistband, he never testified that he was in fear of
the gun. Morris asserts that Molina, solely out of concern for
his wife, insisted that they should leave the area where Morris
was sitting. Indeed, Morris states, Molina indicated in his
testimony that he “may have stayed where he was had his wife
not been there.”
Morris says further that he “never touched the gun in the
presence” of Molina or his wife and there is no evidence that
“he pointed the flare gun.” . . .
“Brandish” means “to exhibit or expose in an ostentatious,
shameless, or aggressive manner.” Webster's Third New
International Dictionary, 268 (1993). When Morris looked at
Ms. Molina, said “[he'd] like that,” and then pulled up his
shirt to uncover the flare gun, he exhibited or exposed the
weapon in a shameless or aggressive manner. And Morris
brandished the weapon in such a manner as to reasonably induce
fear in the mind of Peter Molina. Although Molina may not have
said he was in fear for his own safety, he stated unequivocally
that he feared for the safety of his wife, and that is
sufficient to prove the “induced fear” element of a conviction
for brandishing a firearm under Code § 18.2-282.
Morris v. Commonwealth, 269 Va. 127, 134-135, 607 S.E.2d 110, ___ (2005)
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby WRW » Sat, 21 Jul 2012 23:17:53

Major contradiction? The overt act could include threatening with a rubber knife or replica gun and still afford one a claim of justifiable homicide.

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

Postby gearup » Sat, 21 Jul 2012 23:36:33

WRW wrote:Major contradiction? The overt act could include threatening with a rubber knife or replica gun and still afford one a claim of justifiable homicide.

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Yes there really is a very grave contradiction as far as I am concerned. An "overt act" is a much higher standard than "reasonably bearing fear". Case law is a very shakey when used to discern guilt. It is essentially guilt by opinion.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby WRW » Sun, 22 Jul 2012 00:04:17

Did you mean "bare fear"? Fear alone could not be a valid justification as all murderers could claim fear.

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

Postby TenchCoxe » Sun, 22 Jul 2012 08:10:46

gearup wrote:Yes there really is a very grave contradiction as far as I am concerned. An "overt act" is a much higher standard than "reasonably bearing fear".


Actually, no - it is not a separate standard. You're not looking at two different standards there - you're looking at one standard - the standard is whether it was reasonable, under the circumstances, for the person to have believed he faced an imminent threat of serious physical injury or death. That is the standard. In answering that question, one of the circumstances that must exist is that there must have been an overt act that caused the person to have that belief. It goes to the question of whether the person's belief that his life or safety was in danger was, in fact, "reasonable." If there was no over act indicating an actual and imminent threat, then you are not reasonable in believing such a threat exists.

It's actually pretty simple - it's just that judges like to write in that kind of language. It basically goes like this:

Q: "Why did you shoot him?"

A: "I believed my life was in danger."

Q: "What did he do that made you believe your life was in danger?"

That's the issue - there must have been something that the person did to justify your belief that you truly were in imminent danger. Remember, the defense is based on a claim of "justifiable" homicide - that you were justified in your actions. In order to be justified, you have to show that you reasonably believed you faced an imminent threat to life or safety. In order to show your belief was, in fact, reasonable, and not just an unfounded fear, you have to show that there was some kind of overt act that would have caused a reasonable person to believe such a threat existed.


gearup wrote:Case law is a very shakey when used to discern guilt. It is essentially guilt by opinion.


Case law is not used to discern guilt. Case law provides the legal standard - the facts and circumstances of the individual case are used to discern guilt. And yes, when you're dealing with a jury, it's always guilt by opinion - the jury's opinion as to whether they believe your account of the events more or less than anyone else's, and whether they believe the facts and circumstances as they have determined them constitute a crime or not.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby FiremanBob » Sun, 22 Jul 2012 10:02:19

In the two previous posts the defense principle seems to apply only to the shooter's fear of his own life. What laws do we have covering imminent danger to someone else, for example the shooter's child or a fellow customer in the store being threatened by the aggressor?

Suppose, for example, that someone in the Aurora cinema had killed that perp with a shot to the back of the head. Would he be prosecuted under VA law?

Seems to me that we need legislation to clarify and strengthen the position of someone who justifiably uses his weapon to defend his rights and the lives of people around him.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby gearup » Sun, 22 Jul 2012 12:32:21

TenchCoxe wrote:Case law is not used to discern guilt. Case law provides the legal standard - the facts and circumstances of the individual case are used to discern guilt. And yes, when you're dealing with a jury, it's always guilt by opinion - the jury's opinion as to whether they believe your account of the events more or less than anyone else's, and whether they believe the facts and circumstances as they have determined them constitute a crime or not.



I disagree. Case Law, in this case is ALL there is to determine guilt. Judicial OPINIONS from decades of cases from individuals. Since there is no "statute" to govern these cases judges must discern guilt based off precedent. Problem with this is that one individual can set into motion a bad precedent based on their own personal convictions. This is the basic flaw in case law.

Virginia needs to have all self defense law written as statute. it is much harder to misinterpret statute.

As Americans we have the right (as far as I am concerned) to have our actions weighed against a "THOU SHALT NOT" instead of "the last time this KIND of thing happened we did this".

I would welcome Florida's "Stand Your Ground" law as statute here in Virginia.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 22 Jul 2012 13:57:24

gearup wrote:I disagree. Case Law, in this case is ALL there is to determine guilt. Judicial OPINIONS from decades of cases from individuals. Since there is no "statute" to govern these cases judges must discern guilt based off precedent.


Maybe the issue here is just semantics, but to be clear, case law establishes the legal standard against which you are judged; i.e., what the law is. The case law does not determine whether you are guilty of violating the law. The jury determines what the facts of the case are - i.e., who did what; the judge instructs the jury as to what the legal standard is, and the jury then determines whether the facts of the case have been proven to show that what you did violated that legal standard.

I understand what you're saying about statutory law versus case law, but don't make the mistake of thinking that having a statute would clearly settle every case and make it a simple yes/no question. The question would still remain as to what is the proper interpretation and understanding of the statute and whether the facts and circumstances of the particular case demonstrate that the law (in this hypothetical case, the statute) was violated.

And the current understanding/interpretation of the statute would continue to evolve via - wait for it - case law.

gearup wrote:Problem with this is that one individual can set into motion a bad precedent based on their own personal convictions. This is the basic flaw in case law.


Has this happened here in Virginia? Where is the terrible caw law precedent that has ruined the law of self-defense?

gearup wrote:Virginia needs to have all self defense law written as statute. it is much harder to misinterpret statute.


Let's see - Kelo v. City of New London and the recent Obamacare decision wouldn't seem to support that proposition. Courts screw up and misinterpret statutes all the time. American common law, particularly the criminal law, including the defense of justifiable self-defense, has evolved over literally centuries of English common law - which specifically is judge-made case law.

gearup wrote:As Americans we have the right (as far as I am concerned) to have our actions weighed against a "THOU SHALT NOT" instead of "the last time this KIND of thing happened we did this".


Which is not how case law works. It is not simply a matter of the court looking at what it said "the last time" and then rubber-stamping or carbon-copying the same thing. The history of cases going back over 100 years combined provide a pretty good definition of the what the law is.

Don't get me wrong - I'm not arguing that a "stand your ground" or "castle doctrine" statute would be a bad thing or is undesirable. I'm just saying that I don't think the current common law is as horribly flawed as you seem to be making it out to be.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby WRW » Sun, 22 Jul 2012 14:17:21

Florida has statute "stand your ground" law and obviously it isn't helping to clarify anything.

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

Postby mk4 » Sun, 22 Jul 2012 15:04:07

gearup wrote:I disagree. Case Law, in this case is ALL there is to determine guilt. Judicial OPINIONS from decades of cases from individuals. Since there is no "statute" to govern these cases judges must discern guilt based off precedent. Problem with this is that one individual can set into motion a bad precedent based on their own personal convictions. This is the basic flaw in case law.


side note... i thought juries discern guilt or innocence, ie juries are the "triers of fact", at least in major cases. judges do affirm a guilty pleas by arrested/accused people and impose sentence, but are they ever the triers of fact in major felony cases? help me out here, please.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 22 Jul 2012 15:54:00

mk4 wrote:side note... i thought juries discern guilt or innocence, ie juries are the "triers of fact", at least in major cases. judges do affirm a guilty pleas by arrested/accused people and impose sentence, but are they ever the triers of fact in major felony cases? help me out here, please.


You've pretty much got it - the job of the jury is to determine the facts - i.e., what happened? Who did what to whom and how? Once the jury has tried the facts and determined "this is what happened" (whether that is truly what really did happen or not), the question then is whether the facts that the jury has found constitute the crime alleged.

And yes, judges can be triers of fact in major felony cases - where the accused waives his constitutional right to a jury. There may be legitimate strategic reasons why the defense lawyer might choose to advise his or her client to go with a bench trial, rather than a jury trial - for example, where the defendant is not a very sympathetic figure, or the important question of the case hinges on a technical legal distinction.

I watched a trial several years ago in which that was the exact issue. The guy was a Mexican immigrant (I believe he was here legally) who was accused of first-degree murder in stabbing his girlfriend something like 40 times. He broke the knife off in her. There wasn't a whole lot of question that he did it, but his lawyer was trying to argue for second-degree murder rather than first-degree (the difference is first-degree is premeditated, intentional killing, while second-degree is wanton, reckless, indifferent killing). The question was a legal technicality as to whether he intended to actually kill her, or whether he was so enraged and under the influence of alcohol that he was just stabbing her without actually intending to kill her. You could have a jury answer that question, since it goes to the facts of the case, rather than the legal standard, but it is a subtle legal distinction, and the guy was not a very sympathetic defendant. The lawyer advised him to waive his right to a jury, and the judge tried the case himself - and found the guy guilty of first-degree murder (rightly so, I believe, based on watching all the testimony).
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mk4 » Sun, 22 Jul 2012 16:06:03

@TenchCoxe...

thanks for your reply.
in the case you described, though, the defendant through counsel was asking for a "guilty of lesser offense" decision, right, not an acquittal from the bench? i'm wondering if there have been any cases where the defendant enters an innocent (of all charges) plea and waives right to jury. to my naive knowledge base, that scenario would certainly make the judge the absolute trier of fact.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby gearup » Sun, 22 Jul 2012 16:17:47

WRW wrote:Florida has statute "stand your ground" law and obviously it isn't helping to clarify anything.

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Actually, It explaines it VERY well. Right now we are all looking to the Zimmerman case. As far as I am concerned he is GUILTY of 2nd degree murder because:

1. He was in no danger when he first saw Martin
2. He was told by 911 operators NOT to persue the "suspicious" person. (If he was able to call 911 then how much IMMEDIATE danger could there have been?)
3. While still in no danger he disobeyed the operators instructions and followed Martin. (If he felt Martin represented "danger" then why would he want to meet up with it?)
4. When he caught up to Martin he confronted him and the esclation started. ( again this was a consious choice in Zimmerman's behalf)

Zimmerman was THE key instrument in the esclation of this situation and he created his own danger and there never was a crime being committed. Zimmerman was not "standing his ground" he persued and attacked Martin's ground. There is a big legal difference there IMHO.

This is the first case that has really grabbed national attention that resulted from the Florida law. It is a poor example of its proper application for sure. Gun owners need to look at this case without our gun rights blinders on. Zimmerman made a series of VERY bad decisions and now is having to answer for his thinly veiled attempt to claim self defense. As unpopular as it seems I see Zimmerman as the agressor in this case.

Now the anti's want to use this incident to further their gun control agenda and actually have some momentum. People like Zimmerman screw it up for the rest of us gun owners. His stupid decisions are what lead to the knee jerk gun control legislation that gun owners oppose. Actions like this are what is making our fight harder. It does not matter if it SHOULD make the fight harder, the fact is IT DOES.



Now a better application of the Stand Your Ground law in Florida would be the 71 year old man in the internet cafe' and his actions when two bad guys busted in. Now there was an instance when someone was standing their ground.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby gearup » Sun, 22 Jul 2012 16:23:26

mk4 wrote:
gearup wrote:I disagree. Case Law, in this case is ALL there is to determine guilt. Judicial OPINIONS from decades of cases from individuals. Since there is no "statute" to govern these cases judges must discern guilt based off precedent. Problem with this is that one individual can set into motion a bad precedent based on their own personal convictions. This is the basic flaw in case law.


side note... i thought juries discern guilt or innocence, ie juries are the "triers of fact", at least in major cases. judges do affirm a guilty pleas by arrested/accused people and impose sentence, but are they ever the triers of fact in major felony cases? help me out here, please.



Of course that is correct. Maybe I am not being clear. I am talking about the difference between Case Law and Statute and how it is used to determine guilt. For a jury to determine guilt they need a clear understanding of what you are supposed to be guilty of. Without that how can they make a determination. JMHO.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 22 Jul 2012 16:33:06

gearup wrote:Right now we are all looking to the Zimmerman case. As far as I am concerned he is GUILTY of 2nd degree murder because:

1. He was in no danger when he first saw Martin
2. He was told by 911 operators NOT to persue the "suspicious" person. (If he was able to call 911 then how much IMMEDIATE danger could there have been?)
3. While still in no danger he disobeyed the operators instructions and followed Martin. (If he felt Martin represented "danger" then why would he want to meet up with it?)
4. When he caught up to Martin he confronted him and the esclation started. ( again this was a consious choice in Zimmerman's behalf)



The police evidently disagreed with you - the officers charged with enforcing the law determined they did not have probable cause to arrest him because of the stand your ground law.

So now he's going to trial so a jury can decide what happened and whether his actions constitute murder or instead legally justifiable actions of self-defense, as defined in Florida law. The statute doesn't really clear anything up as compared to case law - it simply sets forth a legal standard against which he still must be judged.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 22 Jul 2012 16:37:20

gearup wrote:I am talking about the difference between Case Law and Statute and how it is used to determine guilt. For a jury to determine guilt they need a clear understanding of what you are supposed to be guilty of. Without that how can they make a determination. JMHO.


The case law in Virginia sets forth the clear definition of justifiable self-defense, as you posted above. The legal standard has been established through a couple centuries of common law. It's not as if it's some undefined, ambiguous, confusing mish-mash. The cases are actually quite consistent. The judge will instruct the jury as to what the legal standard is, based on the established precedents, so the jury will have a clear understanding of what the legal test is.

Again, do you have something that indicates that this system somehow isn't working? Have there been people who acted in legitimate self-defense but who nevertheless were convicted of manslaughter or murder because the jury didn't understand the legal standard?
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby mk4 » Sun, 22 Jul 2012 16:50:21

@gearup...

there is actually more than case law in va pertaining to the castle defense doctrine. it's spelled out in va common law, which as understand it, is incorporated into the statutes of the commonwealth. now, cases have been decided on that common law and are the legal precedent for cases that follow on, obviously.

this last session of the general assembly saw a good number of very bad attempts at codifying *pieces* of the common law castle doctrine. none of them were comprehensive and all of them would have caused great harm, or at best done nothing of value. thankfully, a very vocal group of activists across the commonwealth succeeded in getting every one of them killed, passed by indefinitely or continued to the next session for further research.

a much better, imho, attempt at codifying and strengthening va's common law castle doctrine is underway for the next session. at it's heart is the proposed bill authored by Dan Hawes (forum id: user), a well-known and respected va attorney. if you'd like to read the draft bill, please see: http://virginialegaldefense.com/Stuff/D ... ctrine.pdf. the first 6.5 pages are the bill language with the balance of the 59-page document being a comprehensive discussion of the case law.

hth.

eta: va is considered to have one of the best and strongest common law castle doctrines, which is why it is so important to get a modern statute correct, the first time.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Sun, 22 Jul 2012 17:11:04

mk4 wrote:there is actually more than case law in va pertaining to the castle defense doctrine. it's spelled out in va common law, which as understand it, is incorporated into the statutes of the commonwealth. now, cases have been decided on that common law and are the legal precedent for cases that follow on, obviously.


Case law is common law. "Common law" is the body of law derived from judicial decisions, rather than from statutes. Basically, you take a look at the authoritative cases on the particular legal question you're trying to answer (e.g., what is the legal standard for justifiable self-defense in Virginia) and see what the courts have said about it. By synthesizing the authoritative cases, you can develop what the legal standard is. Legal scholars do this and publish "restatements" of the law. For example, there are "restatements" of tort law, contract law, criminal law, etc. Courts often refer to and cite the restatements in opinions. The authors of the restatements spend a lot of time reviewing and analyzing case law in order to set forth what is basically a summary of what the legal standards are, as established by the various authoritative court cases on point.

The Code of Virginia, which is the codified statutory law in Virginia, expressly says that the common law of England continues in full force within Virginia, except to the extent that the English common law conflicts with the Virginia Bill of Rights and Constitution, and except as altered by the General Assembly (i.e., by legislation). So basically, the historical court cases of olde England provide the foundation for Virginia's entire legal system - but then of course we have gone off and made lots of changes to that common law foundation by establishing our own state Constitution and statutes. But where there is no express constitutional or statutory provision that changes the historical common law, that common law tradition continues to be the legal standard.
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