VA House passes Castle Docrine bill - Page 3

VA House passes Castle Docrine bill

This is a discussion on VA House passes Castle Docrine bill within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; When did VCDL ever push for a Castle Doctrine bill?...

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  1. #31
    Member Array chasbo00's Avatar
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    When did VCDL ever push for a Castle Doctrine bill?


  2. #32
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    Quote Originally Posted by chasbo00 View Post
    When did VCDL ever push for a Castle Doctrine bill?
    Over a number of years.

    For example, a year ago (because there were concurrent subcommittee meeting scheduled) I was asked to and did speak in favor amending HOUSE BILL NO. 1573 before Courts sub: #1 (Criminal).

    In 2010, HOUSE BILL NO. 854 did not have the highly suspect "AND." It read,

    Use of physical force, including deadly force, against an intruder; justified self- defense.

    Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

    Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.
    thus the very act of "unlawfully entered the dwelling" was defined as "having committed an overt act toward the occupant..."

    FWIIW, we and others got it through the House. Died in the Senate. 03/03/10 Senate: Passed by indefinitely in Courts of Justice (9-Y 6-N)
    This effort has gone back a good ways.
    Last edited by DaveH; February 16th, 2012 at 11:16 PM. Reason: clearification
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  3. #33
    Member Array chasbo00's Avatar
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    From VCDL over a year ago (Jan 11, 2011) regarding Castle Doctrine...


    "CASTLE DOCTRINE BILL

    I know that having a Castle Doctrine bill is high on the agenda for
    many of you. I looked at getting one introduced this year, but in my
    discussions with the Senator I was asking to introduce the bill, it was
    pointed out to me that there no glaring issue with needing civil
    immunity after having to use deadly force to defend yourself in
    Virginia.

    Virginia case law and common law are already clear that you can stand
    your ground anywhere you are, no need to retreat. However, if you are
    part of the "problem" (somehow encouraged a confrontation), then you
    would need to retreat and could defend yourself if then cornered and
    after indicating your intent to give up the fight.

    For civil law, you would most likely win in court as well. Lawyers
    who would file a suit against someone who defended themselves would
    almost always do so on "contingency." That is the lawyer would get paid
    only based on him winning the case. Since the odds of winning such a
    civil case are almost nil, lawyers don't even take on such cases, since
    they know they would never get paid.

    Codifying current case law and current common law on self defense
    would be tricky. One would have to be careful to not somehow take away
    protections we currently enjoy. VCDL may attempt to put in such a bill
    at some point, but not this year. That is not to say that someone else
    might not put in such a bill this year, since bills will continue to be
    introduced for another week or so."

    Source: Virginia Citizens Defense League, Inc. (VCDL)

    It remains my perception that VCDL is not really in favor of a Castle Doctrine for VA. They have had plenty of time and opportunity to properly word a draft bill; yet, they have made no effort to do so. They have pursued other legislation instead.

  4. #34
    Senior Member Array Chad Rogers's Avatar
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    Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

    Quote Originally Posted by DaveH View Post
    thus the very act of "unlawfully entered the dwelling" was defined as "having committed an overt act toward the occupant..."
    I don't see that premise as being clear in the language above. If that's the supposed intent, why not simply just say it?
    "People who take an Internet handle of a great warrior, are usually the first to go fetal when crunch time comes." - Me

  5. #35
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    Chad, and Chasbo00,

    Again, I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    OTOH, I have been involved in the lobby process and base my understanding on that. I see very little difference between what I have said in my comments above and the 2011 statement that one "would have to be careful to not somehow take away protections we currently enjoy." I for one would not like to see a retreat from or stand-your-ground common-law case-law protection of self-defense.

    As always, YMMV and you are always welcome to your perceptions and opinions.
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    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  6. #36
    Member Array chasbo00's Avatar
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    My issue with VCDL is that I believe they have been and remain disinterested in obtaining a Castle Doctrine for VA. If they would simply say that rather than acting like a politician and fostering drama, I would have little issue with VCDL. They need to man-up and tell their membership that they just don't think a Castle Doctrine is needed in Virginia - if that's in fact what they really think. If they are in favor of a Castle Doctrine, then they need to quit making excuses and get busy doing whatever is needed in support of a Castle Doctrine effort - and do so publicly.
    Last edited by chasbo00; February 17th, 2012 at 01:03 PM.

  7. #37
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    FWIIW, it appears that all the lobbying, calls, email, etc may be paying off.

    Both SB 4 and HB 48 have undergone changes this week. IMHO, neither one is perfect yet, but they are showing some improvement.

    SB 4 now says:

    <Legislative Information System> .

    § 8.01-223.3
    Immunity for persons acting in defense of property.

    Any person who lawfully occupies a dwelling and uses any degree of physical
    force, including deadly physical force, against another person when the
    other person has unlawfully entered the dwelling without the permission of
    said occupant, having committed an overt act toward the occupant or another
    person in the dwelling, and the occupant reasonably believes he or another
    person in the dwelling is in imminent danger of bodily injury, shall be
    immune from civil liability for injuries to or death of the other person who
    has unlawfully entered the dwelling that results from the use of such force.

    Nothing in this section shall either form the basis for a jury instruction
    or be offered as evidence of criminal liability or lack thereof in a
    criminal proceeding.
    -----

    IANAL!

    AND

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    However, I am looking forward to seeing what the attorneys-at-law in the VCDL legal advisory group have to say.

    IMHO, we may get a good bill this year, yet.

    The famous quote, or misquote, about laws and sausages, popularly attributed to Bismarck, certainly applies to RKBA laws in most States. It is amazing. However, sometimes it works.
    Μολὼν λαβέ

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  8. #38
    Senior Member Array Chad Rogers's Avatar
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    Quote Originally Posted by DaveH View Post
    FWIIW, it appears that all the lobbying, calls, email, etc may be paying off.

    Both SB 4 and HB 48 have undergone changes this week. IMHO, neither one is perfect yet, but they are showing some improvement.

    SB 4 now says:

    <Legislative Information System> .



    -----

    IANAL!

    AND

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    However, I am looking forward to seeing what the attorneys-at-law in the VCDL legal advisory group have to say.

    IMHO, we may get a good bill this year, yet.

    The famous quote, or misquote, about laws and sausages, popularly attributed to Bismarck, certainly applies to RKBA laws in most States. It is amazing. However, sometimes it works.
    Good job. Thanks for your efforts.
    "People who take an Internet handle of a great warrior, are usually the first to go fetal when crunch time comes." - Me

  9. #39
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    Good discussion of why this business is so tricky

    Virginia gun rights group lays siege to

    Mike Stollenwerk
    DC Gun Rights Examiner

    SNIP

    This “risk” Van Cleave speaks of arises anytime a legislature enacts a statute because no matter what the legislature thinks or says it intends to do, at the end of the day, as memorialized since at least 1803 in Marbury v. Madison, it’s “the province and duty of the judicial department to say what the law is.” Since enacting a statute potentially displaces closely related common and decisional law from its precedential moorings, only when a court rules on a case will the law's actual meaning be announced.

    For example, consider the competing cannons of statutory construction “expressio unius est exclusio alterius,” holding that “the expression of one thing is the exclusion of another,” with the cannon holding that statutes enacted in derogation of common law are to be strictly (narrowly) interpreted.

    The first cannon might be used by prosecutors to argue that after the passage of a castle bill, some of the other “old fashioned” English common law style defenses found in case law but not mentioned in the castle bill are no longer available to justify the killing of another human being. And the second cannon might be asserted by a defense attorney contending that the legislature only meant add or clarify one circumstance of where self-defense is justified, and not to eliminate other defenses available at common law.

    SNIP
    Μολὼν λαβέ

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  10. #40
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    Thumbs down Very bad -- maybe

    I have just heard from a contact that SB 4 was amended by the House Committee, so that it now reads:

    § 8.01-223.3. Immunity for persons acting in defense of property.

    Any person who lawfully occupies a dwelling and uses any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling without the permission of said occupant, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury, shall be immune from civil liability for injuries to or death of the other person who has unlawfully entered the dwelling that results from the use of such force.

    Nothing in this section shall either form the basis for a jury instruction or be offered as evidence of criminal liability or lack thereof in a criminal proceeding.
    LIS (Virginia General Assembly's Legislative Information System) does not show this change, yet. I have some calls in. Will try to run it down, as I am suspicious that the House committee would had done that.

    If is true that this is the current wording, this is now a very bad bill.

    NOTE: The second paragraph expressly precludes Castle Doctrine from being used in a criminal trial!!!!!

    Note 2: The construction clause that the Senate had added has been removed.

    If true, this is now dangerous window dressing with only the title Castle Doctrine, IMHO. Remember what Mike Stollenwerk of the DC Gun Rights Examiner said about "expressio unius est exclusio alterius,” holding that “the expression of one thing is the exclusion of another, "being used by prosecutors to argue that after the passage of a [so called] castle bill, some of the other 'old fashioned' English common law style defenses found in case law but not mentioned in the castle bill are no longer available to justify the killing of another human being."

    You don't want something passed just because of the title. The devil is in the details.
    Last edited by DaveH; February 20th, 2012 at 04:09 PM. Reason: typo / proofo
    Μολὼν λαβέ

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  11. #41
    New Member Array jwcgc629's Avatar
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    Home security system

    Just joined but am quite interested in the Castle law and it's implications. Recently obtained a CCP, but as former military, was not required to take the class. Couple of questions and observations.
    Our home (in very gun friendly Franklin County VA) is equipped with a local alarm system (not connected to a monitoring system, but very effective at making us (and an intruder) aware of any breach of entry points)
    Our bedroom is at the top of the staircase, so there is no reasonable path of retreat. Any thoughts on the fact that the blaring alarm system would make a better case for perceiving imminent bodily harm, due to the
    fact that one could assume the alarm itself to have some deterrent effect on the intruder....and if they remain in the home, or continue the invasion with the alarm sounding, their intent to do harm could be more
    clearly assumed ?

    Input welcome !

    Thanks

  12. #42
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    Quote Originally Posted by jwcgc629 View Post

    SNIP

    Any thoughts on the fact that the blaring alarm system would make a better case for perceiving imminent bodily harm, due to the fact that one could assume the alarm itself to have some deterrent effect on the intruder....and if they remain in the home, or continue the invasion with the alarm sounding, their intent to do harm could be more clearly assumed ?

    SNIP

    Thanks
    IMHO (and IANAL) not under the current bills.

    This whole additional "overt act" issue has shown up in some, but not all, case law.

    Adding it to a statutory law is a big mistake, IMHO.

    FWIIW, we've been working on a "Castle Doctrine" law since '01:

    2001:
    LIS > Bill Tracking > HB2369 > 2001 session

    2002:
    LIS > Bill Tracking > HB582 > 2002 session

    2003:
    LIS > Bill Tracking > HB1811 > 2003 session

    2006:
    LIS > Bill Tracking > HB829 > 2006 session

    2007:
    LIS > Bill Tracking > SB1222 > 2007 session

    2008:
    LIS > Bill Tracking > HB710 > 2008 session

    2010:
    [No 'overt act']
    LIS > Bill Tracking > HB854 > 2010 session

    LIS > Bill Tracking > HB251 > 2010 session

    2011:
    LIS > Bill Tracking > SB876 > 2011 session

    LIS > Bill Tracking > HB2511 > 2011 session

    LIS > Bill Tracking > HB1573 > 2011 session

    As with the existing proposed bills in current legislative session all the rewrites by the legislative reference service and staff members and/or the mangling in/by the various subcommittees, committees, and on the floor of one or the other houses result in "add ons" that are either "poison pills" or dilutes the bill through "expressio unius est exclusio alterius" to the point that we are better off with the existing common-law, IMHO.

    -----

    IMHO, a good bill would answer a couple questions:

    1. If someone breaks into your home and you perceive a deadly threat against you or your family (w/o additional overt action on the prep's part) and you use deadly force are you (for purposes of criminal and civil court) liability or not liable?

    In nearly all these bills NO. A specific "overt act", whatever that is, is required.

    2. Do these bills clearly outline under what EXACT circumstances you may use deadly force in your home?

    Answer, NO.
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    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  13. #43
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    More from the ANTI-RKBA Roanoke Times:

    Senate passes revised “castle doctrine” bill
    The General Assembly may be inching toward a compromise on legislation that would give Virginians immunity from civil lawsuits if they use deadly force against an intruder.
    The state Senate today passed a revised version of the so-called “castle doctrine” bill that emerged from the House of Delegates earlier this month. Under the legislation, a homeowner or lawful occupant of a dwelling would have immunity from civil liability for using force against in intruder if the occupant “reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.”

    The original bill (HB 48) would have provided criminal immunity, but the Senate Courts of Justice committee amended it to conform with a bill (SB 4) that already has passed the Senate.
    “There is a very significant body of common law when it comes to self-defense in the criminal arena, as opposed to the civil arena” said Sen. Richard Stuart, R-Westmoreland County, who sponsored the Senate version of the bill.

    As the “castle doctrine” bills have moved through the legislature, some lawmakers and interest groups – including pro-gun groups — have raised concerns that embedding the bill into the state code could weaken common law protections that Virginia has observed for centuries. The bill the Senate passed today contains a sentence stating that the law should not be interpreted as limiting “any defense or immunity already existing in statutory or common law.” The bill passed by a vote of 24-16.

    The House postponed a scheduled vote on Stuart’s bill today. That bill has been amended to mirror a similar measure (HB 14) that was introduced by Del. Greg Habeeb, R-Salem. Habeeb’s bill passed the House but was killed by the Senate courts committee. Negotiators from the two houses may have to work out differences on one or both of the bills.

    “I expect the end product to be maintenance of the status quo, or a civil bill that doesn’t change the common law but provides essentially an affirmative defense,” Habeeb said.
    – Michael Sluss
    Μολὼν λαβέ

    I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.

    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

  14. #44
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    All Virginia Castle Doctrine Bills Are Dead for this Year

    [Re-posted from a VA-ALERT with prior approval of VCDL]

    [First person singular pronouns (I, my, mine, etc) and “PVC” reference Philip Van Cleave, President VCDL]

    Both SB 4 and HB 48, the two remaining "Castle Doctrine" bills are now dead for the year.

    This was a wise move by the General Assembly. These bills effect 400 years of common law in Virginia and there were too many questions and too much at stake to rush them through.

    As long as there is a need to improve our self-defense laws in any way, we should absolutely strive to do so. But it must be done ever so carefully. It is like making changes and repairs to a very fine and intricate watch that is still in working order. If not done exactly right, it could cause another part to break or not work properly.

    Because of pressure by citizens who heard about similar "Castle Doctrine" laws in other states and ASSUMED we needed them here, these bills had some real traction. Thankfully the General Assembly did the right thing.

    VCDL would like to thank Senators Stuart and Stanley and Delegates Dickey Bell, Habeeb, and Lingamfelter for introducing their Castle Doctrine bills. They did so in the spirit of making Virginia a safer place for all of us and they stepped away gracefully when it became clear that their bills might not achieve that goal in practice.

    VCDL will be active over the summer to see if a practical and more comprehensive bill that provides protections everywhere you might be (as opposed to a "Castle Doctrine" bill that protects a person only in their dwelling) can be drafted and vetted. If not, then perhaps our common law would best be left alone.

    A LOOK AT CURRENT SELF-DEFENSE COMMON LAW IN VIRGINIA (IMPORTANT INFORMATION)

    Virginia currently has excellent protections for those involved in the use of force for self-defense. Our protections are much broader than the "Castle Doctrines" that many states have. True "Castle Doctrine" bills provide protection only in a person's home, while Virginia common law provides protections everywhere you might be - at home, in the yard, at work, at the store, in church, etc. Some states desperately needed "Castle Doctrine" laws, as their existing laws were horrible on self-defense. Many required a person to retreat EVEN IN THEIR OWN HOME! Not true in Virginia.

    Virginia is a "stand-your-ground" state. That means AS LONG AS YOU ARE NOT PART OF "THE PROBLEM" and are innocent, you can stand your ground and use force to defend yourself wherever you may be. Deadly force is only allowed if you are under IMMEDIATE threat and you reasonably fear that you, or another innocent party, will be killed or be grievously injured. The death of an attacker caused by use of such deadly force is considered "justifiable homicide." Note that you don't actually have to be in a deadly situation, but only have a REASONABLE FEAR that you are in such a situation, to be justified in the use of deadly force. For example, if someone tries to rob you with a toy gun and you don't know it's a toy gun, you would be justified in responding with deadly force since you would reasonably fear that your life was in immediate danger.

    If you are part of "the problem," say by making an obscene gesture or yelling a threat at someone, then, if attacked, you MUST RETREAT. The retreat must be as far as you can reasonably go and you must indicate that you give up the fight. Then, and only then, if the attacker persists, can you use force against them. If they are trying to kill you or grievously injure you, and they die because of your use of deadly force, it is considered "excusable homicide," a lower standard than "justifiable homicide." Moral to the story: don't give up your right to stand-your-ground by being part of the problem - ever.

    The reason that a person who is part of the problem is required to retreat is to avoid someone committing murder under the guise of self-defense. Otherwise, a murderer could intentionally badger a victim to the point that the victim attacks out of sheer anger or frustration. At that point the murderer, standing his ground, could use that attack as an excuse to kill the victim "in self-defense," getting away with murder legally. Not good, not acceptable, and not legal.

    Would common law or the "Castle Doctrine" bills GUARANTEE that a person legally defending themselves could NOT be charged with murder or sued civilly? NO. If the police and/or the Commonwealth Attorney have reason to believe, rightly or wrongly, that you committed a murder instead of true self-defense, you are going to be arrested and charged. Period. As far as a civil suit, you can be sued for anything and nothing can stop that either. However, common law (and the wording in the Castle Doctrine bills) provide a defense. However, the common law provides the same defense wherever you may be, while the "Castle Doctrine" would only apply inside your dwelling.
    VA-ALERT is a project of the Virginia Citizens Defense League, Inc. (VCDL).

    VCDL is an all-volunteer, non-partisan grassroots organization dedicated to defending the human rights of all Virginians. The Right to Keep and Bear Arms is a fundamental human right.

    VCDL web page: http://www.vcdl.org [http://www.vcdl.org/]
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    I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.

    Veni, Vidi, Velcro

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