Hey fellas, trying to get info on this question.
Hey fellas, trying to get info on this question.
VA does not have "castle doctrine" by statute. According to the VCDL, VA defense of the home/castle doctrine is established by case law.
I, however, do not have cases to refer to you.
I looked on my Ipod app Legal Heat and found nothing on Va. Castle Doctrine.
For a very pro gun state that's strange.
If you are not already a member of the VCDL, I highly recommend them...Virginia Citizens Defense League, Inc. (VCDL)
From the web site/blog--http://blog.vcdl.org/index.php?serendipity[action]=search&serendipity[searchTerm]=castle+doctrine:
Wednesday, April 21. 2010
Use of Lethal Force
The following was submitted as a guest post. First a disclaimer: I am not a lawyer nor do I play one on the internet. I didn't even stay at a Holiday Inn Express last night. I'll answer the questions to the best of my knowledge, but my answers are not to be construed as legal advice. Only a lawyer can give you legal advice and I am not a lawyer. The original guest post is in black text. My answers are in red.
As a new member of VCDL, I thought you would be the right source to answer questions I have concerning the use of lethal force in Virginia.
1. Does Va. have a castle doctrine? How is it defined?
No. Castle doctrine bills have been introduced but we have not gotten one passed. Yet.
2. In Va. can you use lethal force to protect your property? What of the business owner?
No. Virginia law is very clear that the use of deadly force is only justified when there is a reasonable fear of death or great bodily harm. Protecting property does not fit that definition.
3. Does Va. recognize “Disparity of Force” "Example"(A 90 lb. 82-year-old man shooting a 25 year old, 300 lb. attacker who is unarmed?
Yes, however disparity of force is not a defense in and of itself. There still needs to be an overt act which would cause a reasonable person to be in fear of death or great bodily harm. In other words...if grandpa is afraid because the 300 lb youngster is following him, turns around and shoots him, he's probably going to jail. If, on the other hand, the 300 lb youngster physically attacks grandpa, disparity of force would PROBABLY be considered sufficient to justify using a deadly weapon even if the attacker were unarmed.
4. In Va. does a person have to retreat from an attacker or can he stand his ground?
There is no "duty to retreat" in Virginia, provided that the victim who defends himself was engaged in lawful activity when attacked, or was in his own home or place of business.
5. In Va. if you can use lethal force to protect yourself can you use it to protect someone else even if you are not in danger but the other person is?
Yes. Deadly force may be used to defend someone else IF you have a reasonable belief that the person you are defending is a "faultless victim" and they are in danger of death or great bodily harm.
6. In Va. can a private citizen make a citizen’s arrest, using a firearm if needed, on a misdemeanor or only a felony and does that person have the same arresting power as a police officer?
Virginia recognizes the Common Law concept of citizen's arrest, but only for felonies or "breaches of the peace" which the citizen effecting the arrest personally witnessed.
It is unclear whether using a firearm when effecting such an arrest would be appropriate, but I would imagine that it would not be unless there was a reasonable fear of death or serious bodily injury to the arresting citizen.
An arresting citizen does not have the same arresting power as a police officer in that a citizen cannot transport a suspect after arrest but can only detain him until Police arrive to take him into custody. Also, a citizen effecting a citizen's arrest is not protected from liability claims as Police conducting official duties are. If your citizen's arrest is eventually deemed to have been in error, or if you caused any physical harm during the arrest, you can be sued and would not have the liability protections afforded to Police Officers.
If this is not the right place to ask these questions maybe you can point me to the right place!
A good attorney is always the best place for legal information and the only place to get legal advice.
Sources: Summary of Virginia Firearms Laws
Virginia Case Law on Firearms and the Use of Deadly Force
in Guest Blogger at 07:23 | Comments (0) | Trackbacks (0)
I second SigGuy's info and advice since I'm a VCDL member, as well.
JOIN them, Phillip and crew have done great work for Virginia.
We are a common-law State and the legislative manta is "if it ain't broken don't try to fix it." Trying to get something through the legislature w/o examples of bad case law is nearly impossible and gives the antis an opportunity to change the existing case law/common law into more anti-gun statutory law.
We are well protected by case law/common law at the Criminal Case level.
That said, the issue of civil suits has become somewhat problematic -- not for losing cases, but for the cost of defending oneself.
Therefore, we have been trying to get a "baby castle doctrine" (a version of the "castle doctrine," allowing the use of physical force, including deadly force, against an intruder in his dwelling who has committed an overt act against him, without civil liability) passed.
The effort this year was passed by indefinitely in the Senate's Courts of Justice Committee (9-Y 6-N).
See: LIS > Bill Tracking > HB854 > 2010 session
[BTW -- I wouldn't call Virginia very Pro-gun. IMHO, we are about middle of the pack. Heck, even the brady bunch thinks so. One of the only things that they and I agree on.)
I hope that I am not muddying the waters here, but at a seminar I attended it was explained that the circumstances of a home intrusion come to bear.
If an intruder comes into your home during the hours of daylight you must retreat if not physically threatened. You must give them every opportuniy to exit, cease and desist. Once your back is against the wall you may engage.
During the hours of darkness, an intruder is presumed by the court to be up to no good and you may do what you have to do to protect yourself.
Now, I know that ain't persactly legalese, but that was the jist of the discussion.
Any clarification is welcomed.
My layman's understanding is that in the broadest terms the use of deadly force is only justified when there is a reasonable fear of death or great bodily harm and you have not initiated the confrontation or done anything to escalate the conflict.
Protecting property does not fit that definition. Stopping someone from getting away doesn't.
Again as I understand it in Virginia the hours of daylight or darkness is irrelevant as are terms such as "up to no good", "duty to retreat", "back against the wall", etc -- albeit they are in other States' statues.
For a great read check out:
Defending the Self-Defense Case
The following sums up most case law here in Virginia, IMHO.
In the vast majority of states, the basic elements of self-defense by means of deadly force (firearms and other weapons) include:
The client had reasonable grounds to believe he or she was in imminent danger of death or serious bodily harm. Heated words, vague threats, and the possibility of future harm are not enough. The harm must be serious and imminent.
The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.
The danger was such that the client could only save himself or herself by the use of deadly force. Some states do not require the defendant to retreat, even if he or she can do so safely.
Most states do not require the defendant to retreat if he is in his own home defending against someone who is unlawfully present.
Law enforcement officers are not required to retreat.
The client had to use no more force than was necessary in all the circumstances of the case.
The standards for the use of non-deadly force (bare hands and feet) and force used in the defense of property are usually similar.
At a minimum, the defense must include some evidence, generally viewed in the light most favorable to the defense, on each of these factors in order to receive an appropriate jury instruction.
Virginia sounds like a more reasonable state. I wouldn't mind living there.