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

PostPosted: Sun, 22 Jul 2012 17:14:51
by gearup
[quote="TenchCoxe
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.[/quote]


But the DA did agree. The police made no arrest because there was no evidence AT THE TIME.

Anyway my whole point was that IN MY OPINION case law is too fluid and statute provides better definition not only for jurys but also for INDIVIDUAL CITIZENS. When I need to find out the law on a particular subject I do not feel I should have to wade through hundreds of pages of case law. I want the ability to easily keep myself out of trouble rather than have to try to justify my actions after the fact. Not just regarding self defense but for any legal matter under the sun.

Now this is just my opinion and is subject to change as I may learn something I had not considered before. I do appreciate the ability to have a spirited conversation with you without mud slinging. Very different than other forums out there.

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

PostPosted: Sun, 22 Jul 2012 17:18:52
by gearup
mk4 wrote:@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.




I would like to read that. Thank you for directing me to this. Maybe this is just what I am talking about. I am 44 but not too old to learn that is for sure.

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

PostPosted: Sun, 22 Jul 2012 17:36:35
by TenchCoxe
gearup wrote:But the DA did agree. The police made no arrest because there was no evidence AT THE TIME.


Unfortunately, the DA often is more a political position than anything else. I think the DA in the Zimmerman case buckled to public sentiment and political pressure. But I think the Zimmerman/Martin case actually does an excellent job of illustrating the point that even having a nice, neat statute doesn't mean it will be clear in every case whether the person was justified and legal in his actions. We still have to have a trial to determine what actually happened and whether Zimmerman gets the benefit of the protection provided by the statute. We really don't know what actually happened out there - only two people know, and one of them is dead. We can all speculate and offer our individual opinions, but ultimately, it's up to the jury and the judge. I agree with you, though, that based on what's been reported, it certainly seems like Zimmerman went out of his way to get himself in trouble. And he's probably going to have a hard time convincing people that he was "standing his ground" when he went chasing the kid. But even if he did chase him, that doesn't give the kid the right to attack him. If, in fact, Martin did attack Zimmerman and if, in fact, he did try to grab Zimmerman's gun and say "you are going to die tonight", or whatever it is Zimmerman claims Martin said, then Zimmerman would, in fact, probably be justified in shooting Martin. Unless, of course, Zimmerman initiated the altercation. But again, we don't really know what really happened. So the jury will have to decide what it believes.

gearup wrote:Anyway my whole point was that IN MY OPINION case law is too fluid and statute provides better definition not only for jurys but also for INDIVIDUAL CITIZENS. When I need to find out the law on a particular subject I do not feel I should have to wade through hundreds of pages of case law.


I hear ya. I'm just sayin' that in actuality, case law on this question in Virginia actually isn't very "fluid." The cases have been quite consistent for decades. The Virginia Supreme Court has not made any real changes to the standard for self-defense in a very long time. The legal standard has remained pretty much the same for a very long time. And you don't really need to wade through hundreds of pages of case law - reading a few cases would start to get you there, and there are guides and restatements that do a very good job of explaining what the legal standard is.

gearup wrote:I want the ability to easily keep myself out of trouble rather than have to try to justify my actions after the fact. Not just regarding self defense but for any legal matter under the sun.


Well I wish you godspeed and good luck there, because there are so many damn legal matters addressed by statute that no single human being possibly could keep themselves fully up-to-date and knowledgeable on all of it sufficiently to be 100% legal all the time. I practiced tax law for several years and environmental law for many more, and there's no way your average citizen is going to know a thing about 99.9% of any of that. Unfortunately, it's just the way things are.

But again, I guess what I'm saying is I do hear your concern, but I'm thinking it's really not as terrible as you might think it is. And being that the common law has worked pretty well for us for a couple centuries, it's not something we should change quickly or lightly, without a lot of detailed and critical analysis first. I'll admit I haven't done that much analysis of this particular question, so I don't have a strong opinion as to whether establishing a "castle doctrine" or "stand your ground" statute would be a desirable thing in Virginia. As has been mentioned above, to a large extent, all it would do would be to codify the existing common law legal standard anyhow. The question is whether it would codify it in "the right" way or a "good" way - unfortunately, it's not terribly uncommon for the legislature to screw things up when writing legislation, and it is possible that the General Assembly could enact a law that ends up changing the existing common law for the worse.

I do think that one thing that might be nice is a statute saying that criminals can't sue their victims who act in justified self-defense - but even there, I'm not sure that's been a real problem. So is the proposed legislation a solution in search of a problem? I dunno.

gearup wrote:I do appreciate the ability to have a spirited conversation with you without mud slinging. Very different than other forums out there.


Yup. I can't stand the idiocy and juvenile behavior of so many out there on the interwebz. I will state my opinion in no uncertain terms, and I might challenge others to support a proposition they put forth, but I'm not going to call someone names or anything. Life is too short for that kind of nonsense.

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

PostPosted: Sun, 22 Jul 2012 17:57:46
by gearup
@tenchcoxe

Well this has been a great conversation. I just read the proposed bill that mk4 led me too and that is exactly the kind of legislation I am talking about. It is very clear and quite comprehensive. I would fully support that bill. I do agree with you that codifying common law can go bad if the legislature is careless when doing it, so I suppose that is a big risk.

@mk4

I have also enjoyed the interaction with you and thanks for showing me the proposed bill.

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

PostPosted: Sun, 22 Jul 2012 18:50:26
by mk4
TenchCoxe wrote:
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.


ok, i guess... i know better than to argue with an attorney, especially about legal definitions.

i didn't know that common law was synonymous with case law. from listening to folks far more learned than me, i was under the impression that common law in va, and by that i mean the *english* common law, was incorporated as of the first settlement, something like 1604. sections § 1-200 and § 1-201, right? by contrast, i've always thought of case law as what had been set as precedent in the courts post the time of english common law inclusion.

guess i'll hafta stick with my day job.
though i never had any desire to not stick with it. ;-)
i do appreciate learning new things, though.

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

PostPosted: Sun, 22 Jul 2012 18:55:26
by mk4
gearup wrote:I am 44 but not too old to learn that is for sure.


+1!

i've got you beat by a couple years ;-) and i still think that any day i can, and do, learn something new is a successful day!

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

PostPosted: Sun, 22 Jul 2012 18:58:57
by mk4
@TenchCoxe...

have you ever met Dan? have you heard of the monthly ocdo dinners that happen in and around the richmond area? this would be a great discussion over good food, with like-minded people.

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

PostPosted: Sun, 22 Jul 2012 22:17:07
by TenchCoxe
mk4 wrote:ok, i guess... i know better than to argue with an attorney, especially about legal definitions.


heheh... not "arguing," really - just conversatin'.

mk4 wrote:i didn't know that common law was synonymous with case law. from listening to folks far more learned than me, i was under the impression that common law in va, and by that i mean the *english* common law, was incorporated as of the first settlement, something like 1604. sections § 1-200 and § 1-201, right?


Yes, you're right - the Code of Virginia incorporates the common law of England - as I recall, as of some time in the latter half of the 18th Century, though, not 1604.

mk4 wrote:by contrast, i've always thought of case law as what had been set as precedent in the courts post the time of english common law inclusion.


"Common law" is just a general term used to describe the body of law established by judicial decisions, in contrast to statutory law. But of course, "English common law" or "the common law of England" refers more specifically to that particular body of judicial decisions. And don't forget - the English common law provides only the basis and foundation for our body of law in Virginia - there has been a lot that has been changed by the Virginia Constitution and Bill of Rights, and by the legislative acts of the General Assembly.

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

PostPosted: Mon, 23 Jul 2012 11:08:57
by WRW
Since I brought up Florida Law ;
"776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
History.—s. 13, ch. 74-383; s. 1190, ch. 97-102."

2a seems to me to excuse a person with no other means of escape even if he/she was the instigator. We can leave it to a jury to determine whether on your back and unable to escape qualifies as such, but other opinions of the wording are welcome.

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

PostPosted: Mon, 23 Jul 2012 11:34:36
by dorminWS
WRW wrote:Since I brought up Florida Law ;
"776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
History.—s. 13, ch. 74-383; s. 1190, ch. 97-102."

2a seems to me to excuse a person with no other means of escape even if he/she was the instigator. We can leave it to a jury to determine whether on your back and unable to escape qualifies as such, but other opinions of the wording are welcome.


>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Yes, but the fly in the ointment is that in any given case where this statutory language is applied, you can't assume that those words will be given the same meaning you assume they carry; and you can't assume the facts will be deemed to have been what you thought they were. The facts are what a "finder of fact" (usually a jury, sometimes a judge, and occasionally agreed on by the parties) says they are. It doesn't matter that you know damned well the facts were somewhat different from what the finder of fact found. What the facts are found to be depends upon the quantity and quality of the evidence each side adduces, the skill of the lawyers, the evidentiary rulings of the judge, and not least what the finder of fact thinks about the witnesses. Then there's the statutory language. There's a lot of room for judges to interpret that language in the light of legislative intent, legislative history, legal traditions, constitutional provisions, rules of construction, equitable principles, and on and on and on.

You guys want absolute certainty? Truth is, you just can't have it. Not with the Common Law; and, because the language will not have been “court tested” by prior application to factual situations, quite possibly even less so with a brand-new statute trying to codify the law. That’s why many lawyers think it is better not to try to codify the law of home and self defense in Virginia. They've got a point, too. the General Assembly in recent years has a less than stellar record when it comes to fully appreciating the implications and consequences of some of the legislation they pass.

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

PostPosted: Thu, 30 Aug 2012 08:12:40
by zerodown1
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.

First I want to make it clear that I am not an attorney, so please verify this information with a proffessional. Virginia has no legislativly enacted castle doctrine,but it is established in case law. As for duty to retreat, if you can, without creating a situation that puts you in more danger, then retreat. Always avoid and evade if you can. Now, I know there are times when retreat is not an option, and if that be the case it has been established through case law that you may stand your ground and defend yourself. As to when "would you be justified", or "how will I know if I'm justified", you won't until after the trial if charges are brought against you. There are so many variables that come into play in these cases, that at best you might be able to say is "maybe". For an example, the 911 call. what happens to your right to remain silent? Do you make the call,what do you say,how do you saty it so that it won't be used to convict you. I read that 50% of the convictions in claimed self defense cases are a result of the 911 call that is used against you. The police will tell you to make the call, any attorney worth his salt will tell you not to, tell you not to talk to the police. They are not there to help you. In my personal defense in the home and outside the home courses (NRA) I have an attorney present the legal portion and answer questions. I suggest that you meet with an attorney before anything happens,after is not the time,so you will know how to handle this complicated issue.

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

PostPosted: Tue, 17 Mar 2015 15:36:00
by retiredUSN
I hope it never comes down to where I am protecting myself in my home. The police are generally sympathetic, but the District Attorney's are all over the map in Virginia.

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

PostPosted: Fri, 02 Oct 2015 16:35:07
by WVUBeta1904
Well, just got through reading through this thread...lots of information to cover. Ambiguity and vagueness are synonymous with the court systems, unfortunately. It's no surprise there are no real clear answers.



retiredUSN wrote:I hope it never comes down to where I am protecting myself in my home.


That's the dream, for sure.