Virginia Castle Doctrine - Attempt to Codify - review now!
Posted: Tue, 20 Dec 2011 17:38:14
Received via email from 'user' today. This is his draft. Hopefully he doesn't mind me posting it here for review by the community at-large.
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A Bill to Codify and Implement the Common Law Castle Doctrine
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This Article may be cited as "The Virginia Castle Doctrine Implementation Act".
The provisions of this Article shall not be deemed to exclude or disparage other aspects of the rights, privileges, and defenses that persons may have by law whether originating under the Constitution, the Code or the Common Law of Virginia.
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Definitions:
"Curtilage" is all of that area outside of the home, proper, as to which a person might normally be active during times in which he resides in the home, including such area as will encompass outbuildings and any fenced-in area around the home, as well as porches, porticoes, gazebos, and other accoutrements appurtenant to the home; in areas in which the entire property serves a merely residential use with relatively small lot sizes, the term "curtilage" includes the entire lot upon which the home is situated; with respect to mobile and transitory dwellings placed upon land as to which the fee simple interest is in other persons, "curtilage" includes the areas in and around the home as well as those areas required for access to services.
"Home" is the place, dwelling, or habitation wherein a person actually resides, irrespective of any ownership or leasehold interest he may have in the property upon which residence occurs; irrespective of whether or not constructive residence exists such as a place where the person receives mail or as to which he may have an ownership interest; and the term includes mobile and transitory methods of residence, and is not defined in terms of duration of residence.
"Intruder" is any person who is not a resident of the home in question, and who has entered the home or curtilage thereof: (a) with the intention of committing a felony; (b) forcibly without having first announced any lawful basis for entry or without having given sufficient time for a resident to allow lawful entry including confirmation of credentials, identity, and legal basis for the demand for entry; (c) as a trespasser; (d) who has become a trespasser while present therein, regardless of his status upon entry into the home or curtilage; or (e) for any other unlawful purpose.
A "resident" is a person who resides in a home, without regard to the duration of such residence; a person may have more than one home and shall be deemed to be at his home during periods of actual residence therein, however briefly.
A "serious felony" is an act declared by law to be felonious and which involves an inherent risk of serious bodily harm to the person of another, whether as the purpose of, or incidental to, the commission of the felony including, but not limited to: rape, robbery, murder, arson, and burglary.
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Qualified Immunity:
The provisions of this Article shall be taken as providing a basis for qualified immunity with respect to both civil liability and criminal responsibility. Notwithstanding any law to the contrary, no person shall be held answerable either civilly or criminally for any charge, claim or cause of action comprising assault, brandishing a weapon, or any other charge or claim of a similar nature, for any act occurring within the scope of this Article with respect to the death or injury to a person by reason of acts declared to be authorized in this Article; nor shall any person be civilly liable to any third person who, having standing to make any claim arising out of such acts, institutes any charge, complaint, or cause of action with respect thereto.
In any civil or criminal proceeding, it shall be a complete defense and bar to the action that the defendant was, with respect to the charge, complaint, or cause of action alleged, acting in accordance with the provisions of this Article. In any court and in any proceeding, the defendant asserting qualified immunity may move the Court for a bill of particulars which motion shall be granted, and upon the facts alleged therein may demur and assert his qualified immunity to the charge, complaint, or cause of action alleged, as appropriate. In addition to the extension of qualified immunity to persons acting according to the provisions of this Article, a defendant to any charge, complaint, or cause of action may affirmatively defend on the ground that he acted in accordance with the provisions of this Article.
Upon a finding that the defendant was immune to prosecution of any charge, claim, or cause of action, or upon the termination of the prosecution of such charge, claim, or cause of action, on the basis of the provisions of this Article in a manner not unfavorable to the defendant, the defendant shall be awarded his actual attorneys' fees and costs expended in the defense of such charge, claim, or cause of action. Such defendant shall also have a cause of action against any person instituting such charge, claim, or cause of action for damages resulting from the requirement of such defense, and shall in such proceeding be awarded his attorneys' fees and costs. This section shall have no effect upon the doctrine of judicial immunity, but shall act as a waiver of sovereign immunity for the limited purposes stated herein.
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Self Defense and Defense of Others:
A person in any place who is not otherwise at fault in bringing about the conflict may use such force up to and including deadly force that he reasonably deems necessary to protect himself whenever he has a reasonably held, good faith belief, based on objective fact, that he or another innocent person is faced with an imminent and immediate threat of serious bodily injury.
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Stopping a Serious Felony:
A person in any place having a reasonably held belief, on the basis of objective fact, that a serious felony is in progress or being attempted, may use such force as is reasonably necessary, up to and including deadly force, to prevent the completion of the felony and to restrain the suspected felon pending the arrival of law enforcement officers.
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Home Invasions and Defense of Habitation:
A threat posed by an intruder to the home or curtilage shall be presumed to represent a threat of potentially deadly force to the residents thereof. The right to the use of force recognized herein in quelling such threats shall be deemed defensive in nature, and the intrusion shall be deemed an offensive attack upon the habitation and any person therein. Notwithstanding any law to the contrary, no person shall be required to retreat or break off his participation in any conflict prior to the use of appropriate force against an intruder when the resident is within his home or the curtilage thereof, regardless of how such conflict began or by whom.
A person acting on behalf of a resident while within the resident's home or curtilage with respect to an intruder shall have the same immunity, rights, and privileges as the resident.
These provisions applicable to residents in homes shall apply with equal force to persons in their regular place of business or employment, subject to the provisions of the Virginia Workers' Compensation Act, and to persons lawfully within a vehicle.
*************************************************************
A Bill to Codify and Implement the Common Law Castle Doctrine
=====
This Article may be cited as "The Virginia Castle Doctrine Implementation Act".
The provisions of this Article shall not be deemed to exclude or disparage other aspects of the rights, privileges, and defenses that persons may have by law whether originating under the Constitution, the Code or the Common Law of Virginia.
=====
Definitions:
"Curtilage" is all of that area outside of the home, proper, as to which a person might normally be active during times in which he resides in the home, including such area as will encompass outbuildings and any fenced-in area around the home, as well as porches, porticoes, gazebos, and other accoutrements appurtenant to the home; in areas in which the entire property serves a merely residential use with relatively small lot sizes, the term "curtilage" includes the entire lot upon which the home is situated; with respect to mobile and transitory dwellings placed upon land as to which the fee simple interest is in other persons, "curtilage" includes the areas in and around the home as well as those areas required for access to services.
"Home" is the place, dwelling, or habitation wherein a person actually resides, irrespective of any ownership or leasehold interest he may have in the property upon which residence occurs; irrespective of whether or not constructive residence exists such as a place where the person receives mail or as to which he may have an ownership interest; and the term includes mobile and transitory methods of residence, and is not defined in terms of duration of residence.
"Intruder" is any person who is not a resident of the home in question, and who has entered the home or curtilage thereof: (a) with the intention of committing a felony; (b) forcibly without having first announced any lawful basis for entry or without having given sufficient time for a resident to allow lawful entry including confirmation of credentials, identity, and legal basis for the demand for entry; (c) as a trespasser; (d) who has become a trespasser while present therein, regardless of his status upon entry into the home or curtilage; or (e) for any other unlawful purpose.
A "resident" is a person who resides in a home, without regard to the duration of such residence; a person may have more than one home and shall be deemed to be at his home during periods of actual residence therein, however briefly.
A "serious felony" is an act declared by law to be felonious and which involves an inherent risk of serious bodily harm to the person of another, whether as the purpose of, or incidental to, the commission of the felony including, but not limited to: rape, robbery, murder, arson, and burglary.
=====
Qualified Immunity:
The provisions of this Article shall be taken as providing a basis for qualified immunity with respect to both civil liability and criminal responsibility. Notwithstanding any law to the contrary, no person shall be held answerable either civilly or criminally for any charge, claim or cause of action comprising assault, brandishing a weapon, or any other charge or claim of a similar nature, for any act occurring within the scope of this Article with respect to the death or injury to a person by reason of acts declared to be authorized in this Article; nor shall any person be civilly liable to any third person who, having standing to make any claim arising out of such acts, institutes any charge, complaint, or cause of action with respect thereto.
In any civil or criminal proceeding, it shall be a complete defense and bar to the action that the defendant was, with respect to the charge, complaint, or cause of action alleged, acting in accordance with the provisions of this Article. In any court and in any proceeding, the defendant asserting qualified immunity may move the Court for a bill of particulars which motion shall be granted, and upon the facts alleged therein may demur and assert his qualified immunity to the charge, complaint, or cause of action alleged, as appropriate. In addition to the extension of qualified immunity to persons acting according to the provisions of this Article, a defendant to any charge, complaint, or cause of action may affirmatively defend on the ground that he acted in accordance with the provisions of this Article.
Upon a finding that the defendant was immune to prosecution of any charge, claim, or cause of action, or upon the termination of the prosecution of such charge, claim, or cause of action, on the basis of the provisions of this Article in a manner not unfavorable to the defendant, the defendant shall be awarded his actual attorneys' fees and costs expended in the defense of such charge, claim, or cause of action. Such defendant shall also have a cause of action against any person instituting such charge, claim, or cause of action for damages resulting from the requirement of such defense, and shall in such proceeding be awarded his attorneys' fees and costs. This section shall have no effect upon the doctrine of judicial immunity, but shall act as a waiver of sovereign immunity for the limited purposes stated herein.
=====
Self Defense and Defense of Others:
A person in any place who is not otherwise at fault in bringing about the conflict may use such force up to and including deadly force that he reasonably deems necessary to protect himself whenever he has a reasonably held, good faith belief, based on objective fact, that he or another innocent person is faced with an imminent and immediate threat of serious bodily injury.
=====
Stopping a Serious Felony:
A person in any place having a reasonably held belief, on the basis of objective fact, that a serious felony is in progress or being attempted, may use such force as is reasonably necessary, up to and including deadly force, to prevent the completion of the felony and to restrain the suspected felon pending the arrival of law enforcement officers.
=====
Home Invasions and Defense of Habitation:
A threat posed by an intruder to the home or curtilage shall be presumed to represent a threat of potentially deadly force to the residents thereof. The right to the use of force recognized herein in quelling such threats shall be deemed defensive in nature, and the intrusion shall be deemed an offensive attack upon the habitation and any person therein. Notwithstanding any law to the contrary, no person shall be required to retreat or break off his participation in any conflict prior to the use of appropriate force against an intruder when the resident is within his home or the curtilage thereof, regardless of how such conflict began or by whom.
A person acting on behalf of a resident while within the resident's home or curtilage with respect to an intruder shall have the same immunity, rights, and privileges as the resident.
These provisions applicable to residents in homes shall apply with equal force to persons in their regular place of business or employment, subject to the provisions of the Virginia Workers' Compensation Act, and to persons lawfully within a vehicle.
easy to understand without hiring an attorney to interpret!!! hey no migraine from trying to read legal lingo either!! devils advocate though....how bad are the antis gonna twist and turn it? 