A bit on Castle Doctrine

[VBshooter]

THis is from 2008 when the Castle Doctrine conveniently got killed by comittee in the State Senate, I think it worthy of noting that Creigh Deeds is on that list of killers for the bill,,Something to consider when looking at the candidates this year, A passed Castle Doctrine is one of my personal priorities this year,, We all need to evaluate our State Senators and see where they stand on this http://hoodathunk.wordpress.com/2008/02 ... -intruder/

[herohog]

I come from a state where this is the law and couldn't believe that we don't have it here in VA. Also, in Louisiana, if someone hits your car from behind, they are automatically at fault. NOT HERE! I had to spend $2,000 on a lawyer to avoid a charge of reckless driving when a Tailgater hit ME from behind!!!

[VBshooter]

We, unfortunatly are one of 4 that don't have it,,, Seems the school boys in the Senate here don;t support it,, My mom and brother live in the democratic craphole of Rhode Island and even they have it there, Massachussetts where guns are a total no -no has it ,,, So we need to push very hard this year >>

[zephyp]

I'd like to see that include anywhere you have a legal right to be, no retreat, and immunity from civil prosecution.

[VBshooter]

Absolutely,,A half baked version won;t do,, It has to have it all to be effective and actually work in our favor,,, I was hoping to find some more info on the candidates opinions but as of yet haven;t found anything I would call tangible evidence of support. It seems odd that the gun groups are not listing any information either, As I have said before , I will take the Castle Doctrine above all other proposed law changes or repeals.IMHO it is the single most important issue that we need to fight for this year.The House of Representatives here in Virginia supports it almost to a man,,The Senate is where we need to concentrate our efforts.Without it getting voted on in the Senate, we can only guess at how it woulkd have turned out,, Killing it in committee won't do. All of us need to pressure our representatives to support it when it comes down the pipe to them.As of yet I have not received an answer from McDonnell's campaign regarding this but will continue to keep in touch and get the information when it's available.

[GS78]

They need more victims to cement their power in governance.

[zephyp]

They need more victims to cement their power in governance.

You are so right on that one. IMO they consider themselves victims unless they can disarm American citizens.

[shulatt]

They need more victims to cement their power in governance.

You are so right on that one. IMO they consider themselves victims unless they can disarm American citizens.

The problem seems to be they don't want Americans to be Citizens....they'd rather have sheep..or serfs, thralls, vassals, etc

[VBshooter]

I finally got one of the candidates to contact me regarding the Castle Doctrine, Mcdonnell's campaign sent this little note;

Thanks for getting in touch with the campaign regarding the Castle Doctrine. Mr. McDonnell believes that individuals have a right to defend themselves in their own home and that Virginia common law already provides for this right. Please feel free to contact me with any future concerns.

-Alex Cortes

Not exactly the answer I was hoping for,,more time will be needed to prod them both a little bit more,,,

[zephyp]

Sounds like he's not a big supporter of caste doctrine. I was really hoping he would. I guess the VA gov election will be one of the lesser of two evils.

[VBshooter]

I am going to continue to push them ,,, THe guy who answered that is a campaign worker I;m sure just stating generalities ,, But your right,, McDonnell won't commit and Deeds vetoed the thing in 2008,,, Third time it went down in as many years, The Dems and Repubs on tha comittee need to be defeated next election ,that has been the bottle neck in the road to passage,,, I find it amusing that the guy who answered me either thought I wouldn;t check the law or at least verify it.Here is a list of the Senators who stopped the bill from ever seeing the floor of the Senate.
MARSH
SASLAW
STOLLE
QUAYLE
NORMENT
HOWELL
LUCAS
EDWARDS
REYNOLDS
PULLER
DEEDS
Feel free to tell them your opinions and then vote them out in the next election.

[VBshooter]

Here is a very good reference of how the "No Retreat" law in VA works in accordance with the Common Law of this state, Pretty much if you defend yourself be prepared to face a jury and a judge unless the Commonwealth Attorney decides not to charge you.

DEFINITION OF SELF DEFENSE

Self defense is a law of necessity. (For example, if threatened with a knife in a parking lot, you can’t get in your car, go home, get your gun, and return to use it in self defense).
The amount of force used in self defense must be reasonable under the circumstances.
Deadly force cannot be used in self defense unless there is a reasonable fear that the person is in danger of being killed or suffering great bodily harm. Deadly force is most often defined as using a deadly weapon, but hands and fists can be deadly weapons when they are repeatedly used against an unresisting or incapacitated person. Self defense is viewed from the mind of the person acting in self defense. (ie. Does this person have a reasonable fear of some harm that justifies his acting in self defense and justifies his belief that the force used was reasonable under the circumstances). There are two types of self defense: Justifiable (no fault) and Excusable (partly to blame for the conflict). The general self defense jury instruction:

THE COURT INSTRUCTS THE JURY THAT the amount of force used in self-defense must be reasonable in relation to the harm threatened, and that the defendant is not allowed to use deadly force in self-defense unless he reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm.

JUSTIFIABLE SELF DEFENSE

Justifiable self defense occurs where you are not at fault for creating the situation that leads you to use self defense. (example: you are approached by a stranger on the street who pulls out a knife and threatens to kill you if you do not give him your money). No "retreat to the wall" is required when the self defense is justified. You may stand your ground and defend yourself. The same principles of self defense from section I apply. (ie., amount of force used must be reasonable, etc.). Jury instruction:

THE COURT INSTRUCTS THE JURY THAT if you believe that the defendant was without fault in provoking or bringing on the difficulty, and that the defendant reasonably feared, under the circumstances as they appeared to him, that he was in danger of harm, then the defendant had the right to use such force as was reasonably necessary to protect himself from the threatened harm. If you further believe that the defendant used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

EXCUSABLE SELF DEFENSE

Excusable self defense occurs when you are partly to blame for the conflict which causes you to use self defense. (example. You get mad at a man and hit him with your fist in a parking lot. He goes to his car, pulls out a knife, and comes back towards you threatening to kill you.) You must first cease any assault you are committing. You must declare that you desire peace. You must "retreat to the wall" and do everything possible to avoid having to defend yourself. If you cannot retreat and are forced to defend yourself, then the same principles of self-defense from section I apply. (ie., amount of force used must be reasonable, etc.). Jury instruction:

THE COURT INSTRUCTS THE JURY THAT if the evidence showed the defendant was to some degree at fault in provoking or bringing on the difficulty, and if you further find that when attacked:
1. He retreated as far as he safely could under the circumstances;
2. In a good faith attempt to abandon the fight;
3. Made known his desire for peace by word or act;
4. He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; and
5. He used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

DEFENSE OF OTHERS

Self defense applies to the defense of others. Force used to defend others must be reasonable under the circumstances. Deadly force cannot be used to defend others unless you reasonably fear that the person you are defending is in danger of being killed or suffering great bodily harm. Defense of others is viewed from the mind of the person acting to defend another. When defending another, you must reasonably believe that the person you are defending is a faultless victim of the assault you are defending against.

DEFENSE OF PROPERTY

A person has NO RIGHT TO USE DEADLY FORCE solely to defend his personal property. This applies where you are only defending your property and NOT defending yourself or your family. (example, you CANNOT shoot someone in the back while they are running across your yard away from you with your TV) A person has NO RIGHT TO THREATEN THE USE OF DEADLY FORCE solely to defend his property. (This is a recent change in Virginia law). (Example, it is a crime to brandish a firearm to run someone off who is breaking into your unoccupied car in a parking lot [but, how many people do you think will go to the magistrate to swear out the following warrant: “look, I was trying to break into this dude’s car when he ran up and scared me by pointing a gun at me and telling me he was going to shoot me.”]) A person has NO RIGHT TO USE OR THREATEN THE USE OF DEADLY FORCE solely to run off a mere trespasser on their open land (beyond the curtilage surrounding the home). The policy behind these laws on defending property and land holds that human life is far more important than your TV or your car or the grass that gets trampled. But remember that most home burglary situations involve defending not only your property but yourself, your spouse, and your children who are in the home. Also, there is case law in Virginia for the "castle doctrine." This doctrine holds that one may use deadly force to defend his home to keep aggressors out of the home.

Case law:

1. Defense of property
(Facts: defendant brandished a rifle to scare off a car repo man) "Even if [the] actions [of the person threatening the defendant's property] were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said: The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness and a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty." See, also, 1 Bishop on New C. L., secs. 839, 841, 850. However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree. Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property." Commonwealth v. Alexander, 260 Va. 238, 242, 531 S.E.2d 567, ___ (2000).

2. Case mentioning the "Castle Doctrine"
"The use of deadly force to prevent threatened harm to property is never justified except in defense of habitation. . . .[the remainder of this quote comes from a footnote to the preceding sentence] The use of deadly force, in defense of "property" can also be justifiable, but the classic formulation lists only arson or burglary as crimes against property which can justify the use of deadly force. . . . Even then the use of deadly force must have been necessary. Defense of habitation and justifiable self-defense overlap in the "castle doctrine" which states that one may, without retreating, use force, to include deadly force if necessary, to keep aggressors out of his own house. This part of the castle doctrine is one aspect of defense of habitation. . . . [T]he justification exists in the curtilage as well as the castle. Roger D. Groot, Criminal Offenses and Defenses in Virginia 114 (3rd ed. 1994).

[zephyp]

Good info, Spence. I've tried to find this kind of information but unless you know specifically where to look its not easy. I've suspected most of this but nice to see it for real. The one thing I didnt know was its not legal to hold someone at bay if they were breaking into your car.

I wonder if the same applies if they have broken in your house and tell you "look I'm not gonna hurt anyone, I dont have a weapon, I just want your TV." Can I hold them at gun point until the cops arrive?

[VBshooter]

A reread of the case law would make me say NO you can;t ,But the description is at best fuzzy... My gripe about the whole affair is in the lack of a definite definition ,we are still bound by the action of the BG,,, Good point on the TV,,, WHat if you wake up ,walk through the house and someone is standing there with it? Not making any menacing moves or actions...Now What?? The fact that he is in the house is reason enough to me to allow up to deadly force if necessary,, But reading the case law it seems you can;t even brandish a weapon to detain the guy... THis is going to take some more digging to get some more examples of it;s use in real life.

[zephyp]

Thats some real BS. Since it seems the BG would make off with my TV and therese nothing I could do about it then when the cops get there they might find him under my TV on the floor because it was too heavy and he "dropped" it - on his head. Its sad that these legislators dont have to deal with real issues like this. if they did we would probably be talking about fishing and drinking beer instead of this.

[VBshooter]

"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.”
That was the State Senates reasoning for blocking the bill. Gee if that were the case for everything we'd be in some pretty poor shape. YOu mean something has to occur before they can make a judgement on abills application? Now that is some BS right there. I doubt highly that there isn;t some case somewhere that counts as applicable to this debate, More to come as I can find it, I need to find some good true stuff and pass it along to my guy up there and see if he;s got the cajones to sponsor it in the next legislative session.