A Suggested "Castle" and "Stand" Law for Virginia

[albertshank]

Good Evening Fellow Patriots and Lawful Gun Owners of the Commonwealth of Virginia:

For those of you who have been following this thread, I advised in my last post that I would attempt to come up with a good "castle" and "stand" law for the citizens of the Commonwealth that we might be able to carry forward to the General Assembly in the coming year. I also asked you to come forward and help me with this so we all can finally benefit from some righteous and appropriate protection for ourselves from the criminal element.

I have been researching this topic and the laws of other states with "castle" and "stand" statutes for several days. I also know this topic has been looked at before by others here in Virginia, but for a variety of reasons, we still have no law!

At the risk of "reinventing the wheel" I decided to try to draft up suggested "castle" and "stand" law for we gun owners here in Virginia. I find that several states have excellent "castle" and "stand" laws, some have laws but the laws are "weak" and others have no law at all. The states with "no law" rely mostly on the legal "crap shoot" of precedence and "case law". Virginia has no "castle" or "stand" law at all and relies on precedence or "case law". I have detailed what could happen to you in Virginia should you have to use your weapon in justified self defense of your person or others. Ladies and gentlemen, it's past high time we cleaned this situation up and took our place as citizens and lawful gun owners within this great state. Yes, this has been tried before, probably by other minds far more capable than mine, yet I strongly feel we are on the "horns of the proverbial dilemma" here in Virginia and I simply want to know why when in many other respects, this is a terrific state to own and use our weapons in accordance with our "2-A" rights.

In my opinion, the very best "castle" and "stand" law from a self-defense point of view are the following states:

#1 is Florida by far and away; #2 Arizona; #3 Texas (even though you can't "open carry" there).

Obviously, the worst states are those with no "castle" or "stand" law of any kind and Virginia is one of only five without this! Even California, as bad as they are on gun rights, has a '"castle" doctrine. It's a weak law, typical of this state where we gunners are concerned, but at least it's something!

Here's a "caveat" before we begin: I have no formal legal training of any kind. I do have some years of experience in criminal justice and I have a life-long affiliation with guns. Bearing this in mind, I will put down what I feel would be good "castle" and "stand" law for a suggested push to Richmond. Caveat #2: this is a complex subject which begs for simplification. Keeping things "simple" is not so much a problem as is getting others to accept what we advocate. With these things in mind, I'll be back tomorrow morning with the 1st draft of what I see as a good "castle" and "stand" law for Virginia. I invite your comment, support and encouragement because, as lawful gun owners with lives, families and fortunes to protect, we need these laws now! See you then because my wife is asking me to come to the table for dinner and if I neglect her, I run the risk of becoming a "victim" in my own home!

Best wishes and respect to you all.

Albert

[albertshank]

Good Morning Fellow Virginians and Patriots!

This is the text of the suggested "castle" and "stand" law for Virginia:

(1) A person is presumed to hold a reasonable fear of death or great bodily harm to himself or herself or another person when using defensive force that is likely to cause death or great bodily harm to another if these conditions are present:

(a) The person or persons against whom the defensive force was used are in the process of unlawfully and forcefully entering a dwelling, residence or occupied vehicle, or had in fact entered such dwelling, residence or occupied vehicle unlawfully and the person who uses that defensive force had or has reason to believe that an unlawful or forceful act was occuring or had occured.

(b) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(2) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a lawful right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force is he or she reasonably believes it is necessary to so do to prevent death or great bodily harm to himself, herself or another, or to prevent the commission of a forcible felony.

(3) A person who uses deadly force in defense of himself, herself or others in the face of an unlawful attack or forcible entry by another into the person's dwelling, residence or vehicle shall not be held liable under law for self defense or defense of others and shall not be held liable for civil penalthy in the exercise of self defense rights as stipulated herein. Costs associated with the investigation, trial or disposition of the act of self defense of himself, herself or others shall be recoverable and borne by the jurisdiction or governing body in which the act occured.

(4) The presumptions set forth in (1), (a) and (b) herein do not apply if:

(a) The person whom against the defensive force is used has the right to be, or is a lawful resident of the dwelling, residence or vehicle, such as the owner, lessee or titleholder and there is not an injunction or protective order from domestic violence or written pretrial supervision order of no contact against that person; or

(b) The person against whom the defensive force is used is a law enforcement officer and the officer identified himself or herself in accordance with applicable law, and the person using deadly force knew, or had reasonably should have known that the person entering or attempting entry was a law enforcement officer.

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence or vehicle to further an unlawful activity.

(5) As used herein, the terms "dwelling" means a building or conveyance of any kind, whether temporary or permanent, mobile or immobile, which has a roof over it and is designed to be used as lodging by people. "Residence" means a place where a person lives, either temporarily or permanently or is visiting as an invited guest. "Vehicle" means a conveyance of any kind, motirized or not, which is designed to transport people or property.

This is what I consider to be a good "castle" and "stand" law for Virginia. It is based to a high degree on the recent enactment of amending legislation by the State of Florida. I believe this suggested law is unambiguous, clear and consise. If we had such law here in the Commonwealth, I would be far more confident in my rights as a citizen and property owner. What can you offer me in support?

Most respectfully,

Albert

[graybeard321]

great job Al. For some one who is not a lawyer you sure write like one. had to read several times to fully understand. Now all we have to do is vote out a few anti guners. by the way have you considered running for office.

[albertshank]

Good Morning "Greybeard"!

Top of the day to you! I appreciate your confidence and am hoping we can get this "moving" for all of us here in this great Commonwealth. I consider this law to be a top priority for all lawful gun owners here and everywhere in our great nation. It dismays me that we aren't as progressive as many other states who obviously realize that we law abiding citizens have more rights than the criminal element who prey upon us daily and without regret or remorse.

I am retired now and I am engaged in world-wide travel and life with my beautiful wife. "Running for office" has never entered my mind because I stay "south of the border" (way south) in cold weather which I cannot stand. I only come back here when it's warm and I have several physical afflictions (past broken bones) which don't "agree" with cold weather.

I welcome any analysis, additional commentary, editing, or anything else you feel we should cover to help enact this much needed and critical legislation for we lawful gun owners.

However, one thing does concern me in connection with this proposal: We have tried this before. Why did it fail here in this otherwise terrific state for gun owners? I haven't found anything in research which tells me this.

Respectfully yours,

Albert

[zephyp]

Great start Albert and top of the morning to you. I offer a couple of considerations that I feel crucial to any tenable castle law here in VA.

1 - "castle" could simply be defined as anyplace you have a lawful right to be whether it be your residence, car, my car, movie theater, or street corner. Some states have defined castle in this manner.

2 - Immunity from civil prosecution in the event the shooting is ruled to be justifiable. Absolutely critical...

[VBshooter]

This link connects to some good information regardng past failures ,,IT pretty much sums up what I have always heard as the reason for the bill failing. THis is for the 2008 General Assembly session.http://hoodathunk.wordpress.com/2008/02 ... -va-house/ The same old story of no precedent,,I got the same reply from the new governors camp this year when I pressed him for a position on the law.He also felt it was already addressed in VA common Law and that there was no need to establish another law.

[zephyp]

Standard castle doctrine could be already there but immunity from civil prosecution is not. If I'm wrong please show me...

[VBshooter]

This was the committees reasons in 2008 > “said they knew of no civil lawsuits or criminal prosecutions dealing with the use of deadly force against intruders, so they felt there was no need for the legislation.” How nice. Where is the rule written that laws can’t get passed protecting law-abiding citizens from lawsuit harassment until one of them actually gets harassed?" We can still get blindsided by a civil suit today. Nothing changed then or this year. We will not get a true Castle Doctrine until we unseat the dead wood in the Senate and elect individuals with common sense and know that they work for the constituency first and not a party or themselves.

[zephyp]

Right and we wont elect common sense legislators until we unseat the voting liberal idiots...

[albertshank]

Greetings Fellow Patriots and Virginia Gun Owners!

Thanks ever so much for your positive contributions! I haven't heard from as many of you as I thought I might, but the "night is still young" and I am hoping for more input from any of you on this critically important law for all of us.

The point regarding "civil immunity" is indeed critical. It will be added in an appropriate amendment. I expect to have a "final draft" completed very soon. My first draft only "alluded" to immunity. It should be concisely stated within the text so as to leave no doubts. Meanwhile, I have asked our VCDL President, Mr. Philip Van Cleave, to take a "look" at my proposal and to see if we might "run it up the flgpole" past some of our fellow members who are attornies here in the Commonwealth. I find the "argument" that there is no "precedence" for such a law to be specious at best. Laws are designed to deal with real time events, not "precedents". Who the hell cares what happened 20 years ago, 30 years ago, etc. My concern is for what could very likely happen to us all here and now if we are forced to use our weapons in righteous self or family defense.

I attended the Virginia 2-A Rally in Richmond on April 12, 2010 and I'll be at the National 2-A Rally in the District on April 19, 2010. I hope to see many of you there. We had a very pretty day going on and we were treated to excellent speeches by Attorney General Ken Cuccinelli and our own VCDL President, Philip Van Cleave. Turnout wasn't quite what I expected but it was a "work day" and I'm sure that kept many folks away who wanted to be there.

"Stay tuned" for further developments on a proper and correct "castle" and "stand" law for all of us here in Virginia. In parting, remember that Virginia is one of only 6 states WITHOUT a proper "castle" or "stand" doctrine in the statutes in the entire Union of 50. I submit that in what is otherwise a great state for gun owners, this singular and woeful lack of appropriate self/family defense legislation is unacceptable.

Respectfully,

Albert

[zephyp]

Albert, it doesnt matter if VA code eludes to immunity. It should be clearly spelled out in any castle doctrine codified in law. That way there can be no ambiguity...

Thanks for taking this on. You're a real patriot!!!!!

[VBshooter]

Yes thank you Albert , The Castle Doctrine is IMHO the most important issue to be pursued by gun owners here in the Commonwealth, all others pale in comparison.

[rkbanet]

Indiana has one of the better Castle Laws...

IC 35-41-3-1
Legal authority
Sec. 1. A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.7.


IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (a).
(d) A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
(1) on the ground in Indiana:
(A) after the doors of the aircraft are closed for takeoff; and
(B) until the aircraft takes off;
(2) in the airspace above Indiana; or
(3) on the ground in Indiana:
(A) after the aircraft lands; and
(B) before the doors of the aircraft are opened after landing.
(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
(f) Notwithstanding subsection (d), a person is not justified in using force if the person:
(1) is committing, or is escaping after the commission of, a crime;
(2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
(3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.8; Acts 1979, P.L.297, SEC.1; P.L.59-2002, SEC.1; P.L.189-2006, SEC.1.

[Hilemark]

Albert,
I was wondering what is going on with this and how can I help?

[user]

THE LAW OF VIRGINIA IS NOT MERELY WHAT'S IN THE CODE!!!

Whatever the common law of England was in the third year of the reign of James I (i.e., 1607, the founding date for Virginia), is the law of the Commonwealth unless "repugnant" to the constitution or general laws of Virginia. Va. Code sections 1-200 and 1-201. What people don't seem to get is that Virginia's legal system dates from the Norman Conquest of England, in 1066, and includes a thousand years of statutes, edicts, decrees, and decisions which are not contained in the Code. Including the castle doctrine.

The "castle doctrine" was part of the common law of England at that time and is good law in Virginia today. No statute is required, and, since the castle doctrine is principally designed to protect citizens from the power of the state, I'm suspicious of people who want a statute (which will have the effect of watering down the law already in effect in Virginia).

I attempted to include Castle Doctrine case excerpts (which I use and discuss in my Firearms Law Seminars), but exceeded the limit on number of characters. I'll email it to anyone who asks me by email (see the website listed in the "user" profile - click on the mailbox picture). Don't ask by PM, I may not see it.

[Drumstix61]

So,you mean to say,

We have "Castle Doctrine" and "Right to Stand" already in the lawbooks?
As part of old English Law?

Or,in other words,

The Right/s to protect Self/Family/Friends/Property/State/Country/King,
has been deemed necessary and prudent,and made Law, before even Our Constitution and the Amendments/Bill of Rights was documented?

Outstanding! And why has no one else used/referenced/brought this to light?

Please e-mail this info to me.
My e-mail is "drummer1a at Verizon DOT NET"

THE LAW OF VIRGINIA IS NOT MERELY WHAT'S IN THE CODE!!!

Whatever the common law of England was in the third year of the reign of James I (i.e., 1607, the founding date for Virginia), is the law of the Commonwealth unless "repugnant" to the constitution or general laws of Virginia. Va. Code sections 1-200 and 1-201. What people don't seem to get is that Virginia's legal system dates from the Norman Conquest of England, in 1066, and includes a thousand years of statutes, edicts, decrees, and decisions which are not contained in the Code. Including the castle doctrine.

The "castle doctrine" was part of the common law of England at that time and is good law in Virginia today. No statute is required, and, since the castle doctrine is principally designed to protect citizens from the power of the state, I'm suspicious of people who want a statute (which will have the effect of watering down the law already in effect in Virginia).

I attempted to include Castle Doctrine case excerpts (which I use and discuss in my Firearms Law Seminars), but exceeded the limit on number of characters. I'll email it to anyone who asks me by email (see the website listed in the "user" profile - click on the mailbox picture). Don't ask by PM, I may not see it.

[VBshooter]

Back during the last election I received an email from then candidate Bob McDonnell stating something to that very effect. I had asked him what his stance was on Castle Doctrine and the response was similar to "seeing its a part of VA already there was no need to actively pursue it.In that email he also stated that he beleived people had a right to defend their property to,,,although as the law stands I wouldn;t shoot someone stealing your car,,,,,

[LFS]

However, common law does not cover the frivolous wrongful death law suits that may occur after a righteous self-defense shooting. Virginia needs a law to stop wrongful death civil suits in the absence of criminal convictions.

[VBshooter]

I agree fully,,, Would like that lawyer guy to put up some of his info here , Sentr a email and got a blank page in return.....Myself I would like the law to include protecting ones property, Might just slow a few would be thieves down a spell........

[Diomed]

However, common law does not cover the frivolous wrongful death law suits that may occur after a righteous self-defense shooting. Virginia needs a law to stop wrongful death civil suits in the absence of criminal convictions.

I agree that this would be something worth exploring.

One thing I'm curious about though is how often we see those kinds of frivolous suits brought in VA. I've seen it said that it's very rare, but have not seen any evidence to back up that assertion.