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

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

Postby jmicheals1984 » Tue, 30 Aug 2011 04:39:35

Is Virginia a "Duty to retreat" or a "Castle Doctrine" state? Other words, would I be justified in using deadly force if I felt threatened in a place I have lawful right to be or would I be required to retreat or escape from the threat at all costs? I know Michigan is a Castle Doctrine state where I am from.


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

Postby wpoppert » Tue, 30 Aug 2011 06:59:45

jmicheals1984 wrote:Is Virginia a "Duty to retreat" or a "Castle Doctrine" state? Other words, would I be justified in using deadly force if I felt threatened in a place I have lawful right to be or would I be required to retreat or escape from the threat at all costs? I know Michigan is a Castle Doctrine state where I am from.


Virginia is neither, sort of... Virginia rejected a Castle Doctrine bill as superfluous, because it is already legal to defend yourself anywhere (with a weapon where it can legally be carried, which is most places now), not just in your "castle".


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

Postby 9mm4me » Tue, 30 Aug 2011 09:43:10

I was hoping to see more responses to this question, because to me it is confusing. As best I can determine there is NO Castle Doctrine in VA, and there is NO duty to retreat, and that the use of deadly force is goverened by case law, which makes it clear as mud to me. My take on it is you only use deadly force if you fear for your life or the life of your family or others after exhausting all other options if available such as avoidence, communication (stop, don't come any closer, etc.), or retreat.

Hopefully someone can clarify better than I.

I recently ordered the book advertised on this site, "Virginia Gun Owners Guide", in hopes it will clarify, but I have not received it yet and cannot attest to its content at this point.


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

Postby ChrisG19 » Tue, 30 Aug 2011 14:40:50

From what I understand, there is case law in Virginia that supports Castle Doctrine. Maybe someone has the cite? I'm not an attorney but, in my opinion if you can retreat easily, do so. If not, do what you have to do to protect yourself and/or your family.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby ProShooter » Tue, 30 Aug 2011 15:04:47

I teach a course on this, but to answer your question you do not have to retreat. Case law rules this, not statuatory law.

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

Postby jdonovan » Wed, 31 Aug 2011 12:45:40

In your home, the case law has for most purposes created a castle doctrine.

Also the case law that was once shown to me, praphased....
'An intruder to the home may be presumed to be hostile to resident, and deadly force may be used against the intruder inside the home or upon its curtilage.

Outside your home Virginia can more properly be defined as a stand your ground state.

In any place you may legally be, if threatened you may defend yourself. However, The threat to you must be real, immediate, and capable of being acted upon. You may respond with like force that is reasonable to prevent your harm. You must not be an aggressor, or be involved in escalations of the conflict.


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

Postby strick9 » Wed, 31 Aug 2011 14:10:01

Interesting info for a new(er) VA resident. I had training in my previous state (CO) that let me know the rules, but again, this is helpful. Thanks for the OP and the respondents.


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

Postby mamabearCali » Thu, 01 Sep 2011 09:00:04

our instructor put it to us like this--the reasonable man defense. Lets say you are standing beside your back doors alone in your home and an intruder breaks in your front door a reasonable man would say--"you did not have to shoot the person right off you could have gotten out your back door and only shot him if he followed" Now put it where your kids are upstairs sleeping and it no longer become reasonable to retreat. This may not be 100% correct, but I bet it would keep your out of trouble most of the time (which is prob why our instructor gave us that example).
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby jdonovan » Thu, 01 Sep 2011 09:06:51

mamabearCali wrote:our instructor put it to us like this--the reasonable man defense. Lets say you are standing beside your back doors alone in your home and an intruder breaks in your front door a reasonable man would say--"you did not have to shoot the person right off you could have gotten out your back door and only shot him if he followed"


Clearly that was an unreasonable man. Or a California/Maryland resident. :hysterical:

In Virginia there is ___NO___ requirement to runaway from your home.

Be very careful about getting legal advice from firearms instructors. They are not lawyers, and are not going to stand by their advice if they got it wrong.

To the OP if you want good advice on this topic speak to an attorney, and preferably one that is willing to defend the advice they have given to you in front of a judge and jury.


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

Postby mamabearCali » Thu, 01 Sep 2011 10:00:02

Like I said--the instructor could easily be incorrect. I do think however that the advice he gave would keep most people out of legal trouble. On the other hand I am NEVER like NEVER in my house by myself I always have at minimum one child with me (and this will likely continue for at least another 6-7 years) so that just does not apply here. So if a person breaks down my door I am not going anywhere but will have to whether I am 10 months pregnant (I gestate a LONG time) or not stand and defend.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby albertshank » Mon, 05 Sep 2011 22:32:58

Good Evening Fellow Patriots and Gun Owners!

The "castle" doctrine and "duty to retreat" issues are interesting subjects. A few months back, before I went on several trips, I constructed what I felt could have been an adequate and appropriate suggestion for a "castle" and "stand your ground" law here in Virginia. As matters now stand, Virginia is one of only six states in the Union that does not have an official 'castle" doctrine or a "stand" law incorporated in the statutes.

As some of you have observed, we depend on "case law precedents" in the matter of our "castles" and our self-defense. Simply stated, "case law" is based on what judges and juries have said in the past regarding use of our weapons in matters of self-defense and defense of our "castles" (homes). As you might suspect, these judicial pronouncements are on a "case by case" basis. There are no guarantees whatsoever that you will be found blameless (not guilty) even in the most solid, evidence-laden and circumstance supported case of using your weapons in self-defense or defense of your loved ones. And, even if you are found "blameless", you are still subject to civil suit from the perp's family or friends, which could easily result in your financial ruination. And, unless you have considerable means, you will go broke paying a lawyer to defend you.

There are some excellent folks in positions of leadership here in the Commonwealth who are comfortable with the fact that we rely on "case law precedents" to "take care of us" if we have to use our weapons in self defense or the defense of loved ones. I am not comfortable with that situation at all and that was the reason why I presented this proposed "castle" and "stand" legislation to take forward on sponsorship to the General Assembly.

A few fellow patriots commented on this proposal in this forum; many seemed supportive. Realizing what is at stake, I forwarded this proposal to a very prominent, knowledgeable and worthy individual whom many of you know and asked whether or not we might go forward to the General Assembly on sponsorship with this bill. The gentlemen who I shared this proposal with indicated to me that he felt we could be comfortable, once again, with depending on case law precedents. No disrespect intended, but again, I must strongly disagree with this position. I firmly and unquestionably feel that we lawful gun owners need supportive statutes in the form of clearly written legislation incorprorating a solid "castle doctrine" law and a very solid "stand your ground law" in the Virginia Code.

Anyone interested in pursuing this further is welcome to join me here on this forum. Additionally, I would be happy to repost my proposal in its entirety if anyone is interested in reading it.

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

Postby Rumson » Mon, 05 Sep 2011 23:14:02

I'm not a lawyer.. Do not say "Rumson said" if you find yourself in court. I offer this information as a means for you to pursue it and find out if it's correct..

VA is between "Duty to retreat" and "Castle Doctrine" In VA you can fire if you have a reasonable fear for your life, family member's life or a total strangers life. Just make damn sure on the total stranger.. You do not have to hide in the bathroom while somebody is kicking down your bedroom door. Take up a defensive position. When that position is threatened you can fire in your home. I'll give a few scenarios..

1. You and your family are upstairs. You hear somebody break in downstairs. You shout out for the person to leave . Person heads towards the stairs to get at you. You shoot them.

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.

3. You and a portion of your family are upstairs. Your daughter is down in the basement. Somebody breaks in on the middle level. You pursue and investigate the issue out of reasonable fear for your daughter who is in the basement. Shoot the perp on site.

All situations are different. Think out the possible scenarios for your home and family..

I have a defensive position plotted out upstairs.. Anybody that does not leave when commanded ( I will not announce I am armed) will be shot when they come into view from that position. Hopefully it never happens but it's best to plan.

There is more to it than just the simple explanation I offer.. This is serious stuff and as others have said you are going to get sued. You may very well go to jail temporarily until the police investigate. You are going to get cuffed at a minimum. Think it through all the way and decide whats best for your home or situation.


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

Postby Rumson » Mon, 05 Sep 2011 23:26:03

And get on the VCDL email list. They just had an article on a West Virginia man who is sitting jail because it appears he shot a perp in public after a robbery. The perp was running away at the time of the shooting.

You can't shoot in public after they are running away because the threat is gone. Same situation applies to Virginia. Very fine lines apply to every situation in VA.


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

Postby ThereIsNoSpoon » Tue, 06 Sep 2011 15:52:18

I don't think that the ideas presented in the title of the thread are opposing. I don't think that a state is either "Duty to retreat" or "Castle Doctrine".

I think that Castle Doctrine is term used to legally quantify what rights or duties a citizen does or does not have when violently pursued. If a state does have a "Castle Doctrine" law on the books that law tends to subscribed to one of two Castle Doctrine philosophies... "Duty to Retreat" or "Stand your Ground".

So the question should be "Does Virginia have a Castle Doctrine on the books?'

The answer to that is no. (I personally think that is a good thing)

If the answer were yes then the next question should be "Is Virginia's Castle Doctrine Duty to Retreat or Stand your Ground?"


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

Postby Batty67 » Wed, 07 Sep 2011 08:12:53

A few months ago I took a 3-4 hour seminar on this very topic (and related topics like CCW restrictions, the truly byzantine knife laws, etc.), in Virginia, taguht by a lawyer and gun rights supporter. Very interesting. His take was that Virginia does not NEED a castle doctrine per se because we have a right to defned ourselves and not retreat. That stated, the reasonable person approach is a good one to follow, as in: would a reasonable person (or a set of them on a jury) feel that you discharged your deadlly weapon because you felt yourself or someone else in a very real and imminent threat of death or serious harm? And that requires a true weapon and.or multiple persons without weapons.

Of course, that only gets you so far. Totally paraphrasing what I learned, so this is NOT legal advice nor should it be construed to be: basically, you never, ever brandish unless *needed* and if you brandish, you'd damn well be ready to use the weapon to end the threat. 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. Of course, you CAN, but you run the risk of legal and civil action of brandishing. If he has a baseball bat, or if there are several of them, you are on better ground. Always be the first person to call the police to report, briefly, what happened. If at all possible, delay making a formal statement until you have legal representation or at least time to collect your thoughts and get your story straight. You do not want to have brandished and not used the firearm and have the person looking down the barrel call police in first and get his/her side of the story in before you get yours in, then you'd be on the defensive. Despite the lack of castle doctrine, you are likely on better ground regarding brandishing and using your weapon. But if someone breaks into your home to steal stuff, and are unarmed or do not appear to be unnarmed, you cannot blast him/her if they do not obviously pose a grave risk to you or someone else's health. If they attacek you bare-handed, using your gun is still a risk proposition, but less risky in your home, or so i would think/hope. So if two guys have your TV, they can walk off with it and you cannot just shoot them. Though you would likely (not necessarily) be fine if you brandished the gun, point aimed at the floor but ready to move up to firing position, to encourage them to leave (hopefully without the TV). And while all this is happening, ideally you've already called 911 and have the phone on and with you so it is being recorded. We all sleep upstairs, what I'd do is get my P229, get my wife to call 911 and stay on the line, and announce from a safe position that the police have been called, I'm armed, and any attempts to come upstairs will be considered an attack and I will shoot. Outside of a intent murderer, this should very likely get the person who broke in to leave immediately.

This also means that if you come upon someone being robbed or q ccar is being broken into, you cannot pull the gun and try to play LEO, and heaven frorbid you try some sort of citizen's arrest. Call it in and get safe, if they are shooting others, than you can porobably get involved but ask yourself if you'd want/need to.
And all of the above is criminal-law related, civil law is a much lower bar to get yourself in financial trouble.


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

Postby mamabearCali » Wed, 07 Sep 2011 09:44:00

Batty67 wrote: 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. Of course, you CAN, but you run the risk of legal and civil action of brandishing. If he has a baseball bat, or if there are several of them, you are on better ground.


I agree with just about everything you said and while I think it really stinks that we have such a shady situation on when you can use lethal force that is how it is right now in VA. What I disagree with is your above statement. "An ass kicking" can and is often lethal and unless I am a big ass dude myself (which I am not I am 5'4 inch pregnant woman) that would be considered a disparity of force and would allow for lethal force. We have seen time and time again where even one hit can kill a person or do very serious bodily damage. Even my 5 foot 6 italian husband would face a serious disparity of force if a big ass dude wanted to kick his ass. I really don't have to wait until he is literally killing me to at minimum threaten lethal force. So unless another 5'4 extremely pregnant mama taking care of 3 or more children (I have my children with me about 98% of the time) is threatening me then we have a serious disparity of force going on here--and when was the last time we saw that.

The only caution I would give is that you cannot have provoked the attack. If you go up and push the 6 foot 5 inch 225 lb dude or insult him or threaten him in any way you cannot use lethal force because you started it. :bangin: However let us hope that those of us who carry do not do such foolish things.
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby WRW » Wed, 07 Sep 2011 12:06:56

Maybe I'm reading too much into some of the responses, but I don't see it as unreasonable to investigate unidentified noises in the household. Even if an intruder were advertising his/her presence by talking to an accomplice, I don't see it as being unreasonable to try to obtain an accurate description of the trespassers to pass along to law enforcement.


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

Postby Batty67 » Wed, 07 Sep 2011 12:31:34

mamabearCali: point well-taken. In the end, it will be case-by-case so me, a reasonably fit 5'10" male who has a 6'4" dude looking to kick my ass-in is different if he was going to do so to a woman or small/young male. Etc. In short, if I pull my weapon, I'm brandishing and RUN THE RISK of getting nailed criminally for branishing. Of course, I still might do so, since I'm a lover, not a fighter (well, I try to be both, and never be a victim). But if I did, what if he says "eff-you man" and keeps on coming bare-handed? If I shoot, he's unarmed, I'm very probably screwed, if not criminally, then almost certainly from a civil lawsuit perspective. Probably both. Which is why if you brandish, you had better be ready to shoot and hope/expect a reasonable person would agree that you were is reasonable fear of death or serious injury. That would generlaly be a lower bar for a female. No offense of course. For me, "just" getting my ass kicked might not be enough to be deemed reasonable liklihood of death or serious harm.

Of course, it is likely that having a gun drawn, even if aimed at the ground with the brandisher retreating, SHOULD be enough to avoid said ass-kicking and have him go away. But again, what if it isn't? Am I prepared to USE the gun, have it used on me, etc.? If I did pul my gun, aim it at the ground, and tell the dude to back off, and he left. I'd get his licen number, make a nice mental picture of what he looks like and how this all happened in the first place, collect myself, and call the police FIRST. Of course, I'd note that I have a CCW and would be willing to make a statement. I also run the risk of getting fined and/or jailed for brandishing. Hopefully, they'd take the statement and it would be over, but there is a very real possibility that it could get ugly.

Back to home defense, I think the resident has a much lower bar. So if you found a male in your young daughter's room and he was not obviously armed, a reasonable person would presume he plans serious harm (is a bad man) so putting him down would be justified. But if you shot him 15 times, then you have "some splaining to do.:"


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

Postby TenchCoxe » Wed, 07 Sep 2011 13:49:51

Hi all -

New to the forum here. This is the very first discussion I clicked on, because it's one I'm always interested in. Just as an FYI, not only am I an (ahem) "firearms enthusiast" (a/k/a/ "gun nut"), I also am an attorney with a strong interest in the Constitution and individual rights.

Although I am a practicing attorney, I am not a criminal law attorney and I make no claim to be an expert on Virginia law of self-defense. I have, however, read some of the cases, and it's been on my long-term "to do" list to compile the cases and draft a concise analysis and summary into sort of a pseudo-authoritative "restatement" of the law of self-defense in Virginia.

Lots of good info above - looks to me like most people have it generally correct.

There is no statutory "Castle Doctrine" in Virginia, but there is case law that established what the law of self-defense is in Virginia. By the way, I would not downplay the significance of case law as binding legal precedent. When the Supreme Court of Virginia states what the rule of law is in Virginia, then that is the rule of law, unless and until the General Assembly enacts legislation contradicting it. So you're not really "taking your chances" as to what the outcome might be in any given case just because we don't have a statute. There is established Virginia Supreme Court precedent that defines the law of self-defense in VA.

As stated above, the general rule is that if you REASONABLY feel you face an immediate threat of imminent serious physical injury or death, then you are entitled to the use of force to defend yourself, up to and including the use of lethal force. The belief that you face the type of threat justifying the use of force is what must be "reasonable." I.e., your subjective belief that the little old 92-pound lady with the flowered hat waving her umbrella at you was about to kill you likely is not "reasonable" and even if you say you really thought she was about to kill you likely would not justify your use of force against her.

As long as it was reasonable (uh-oh, hindsight? Maybe) for you to believe you faced a threat of imminent serious physical injury or death, than your use of force in self-defense can be justified.

There is no general duty to retreat; however, I can envision an argument that the threat of serious injury or death could have been avoided had you moved in some way - as pointed out above, the potential scenarios are limitless.

As another thought, I'll add that too often, people misunderstand what "Castle Doctrine" really means. Too often, I've seen people say it means that "if I feel threatened, I can shoot." NO. It does NOT mean that. Every Castle Doctrine legislation I've seen specifically states the circumstances under which the use of force is justified, and typically it requires that very same reasonable threat of imminent serious physical injury or death. Your subjective "feeling" that you were "threatened" doesn't mean you can whip out your sidearm and start blasting.

One feature of typical Castle Doctrine legislation that would be nice in Virginia is the protection from civil suit by the scumbag who attacked you or his family. However, I believe such a suit would have about the same chance of success in Virginia as the first snowflake of winter would in furnaces of hell.

Anyhow, glad to have found this forum and looking forward to some good discussion.

Thanks for reading if you made it this far!
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Re: Virginia, "Duty to retreat" or "Castle Doctrine"?

Postby TenchCoxe » Wed, 07 Sep 2011 13:58:05

I know, maybe bad form to be the first to reply to my own first post, but a couple more thoughts related to all this, after re-reading some of what's posted above.

First, with regard to "brandishing": the Virginia Code ยง 18.2-282 expressly states that it is illegal "for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

However, this same section section also states that this probhition on showing your gun "shall not apply to any person engaged in excusable or justifiable self-defense." So yes, you can show that big palooka your gun if you were engaged in legitimate self-defense. And as I rambled on about above, that's judged based on whether you reasonably believed you were faced with a threat of imminent serious physical injury or death.

Second, regarding how many times you shoot someone in "self-defense." Remember that the whole notion of "shoot to wound" versus "shoot to kill" is Hollywood nonsense. When you shoot in self-defense, you are shooting to stop the threat. The mantra is that you are justified in using such force only if facing a threat of imminent serious physical injury or death. You use force to stop that threat. Once the threat has passed, you no longer are justified in continuing to use the same force. Remember Bernie Goetz on the NYC subway? The first shot or two, maybe justified. Walking up to the paralyzed attacked lying helpless on the ground and plugging him a couple more times? Attempted first-degree murder.

So remove from your mind and from your vocabulary the whole concept of "I was trying to kill him" or "I was only trying to wound him." You were trying to stop the threat. If your attempt to neutralize the threat resulted in the attacker's untimely demise, that is unfortunate for him, but his death was not your intent. Your intent was to stop him from causing you serious injury or death. If you stop him by shooting him in the kneecap and he collapses on the ground, screaming in pain, threat over. No more shooting. If you shoot him once in the gut and he keeps advancing with the meat cleaver held over his head, shoot again until he stops.
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