VA House passes Castle Docrine bill

House passes bill allowing lethal force against intruders | Richmond Times-Dispatch



Published: February 09, 2012

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House passes bill allowing lethal force against intruders
By Wesley P. Hester


Legislation that would allow homeowners to use any degree of force, even lethal, against intruders without threat of criminal or civil charges has passed the House of Delegates.

House Bill 48, sponsored by Del. Richard P. "Dickie" Bell, R-Staunton, which would codify a version of the state's common-law "Castle Doctrine" passed the House Thursday on a 70-28 vote after a second day of debate.

Democrats argued that the measure could be used to justify homicide when the circumstances are not clear.

But Republicans won out, claiming that the bill merely allowed an individual to protect themselves and their homes against illegal intruders.

Del. Anne B. Crockett-Stark, R-Wythe, supported the bill, using the example of an 82-year-old female constituent whose home, in the back of a funeral parlor, was broken into at 2 a.m.

After grabbing her pistol, the woman, who happens to be a "sharp shooter," according to Crockett-Stark, caught the male burglar crawling into a window he had broken.

"She grabs him up, she puts the pistol under his chin, [and] she said, 'Do you want to eat breakfast with the devil?'" Crockett-Stark said.:bigun2:

As the intruder fled, the woman shot a round into the air to scare him, and was later taken to court by the man for shooting at him.

"And he won!" Crockett-Stark said. "We need this bill."

The story earned a standing ovation from most legislators just prior to the passage of the bill.

The House also passed a related measure providing civil immunity to homeowners under similar circumstances -- House Bill 14, sponsored by Del. Gregory D. Habeeb, R-Salem.

This bill is nothing to celebrate. It arguably increases the burden over the existing common law burden when claiming a castle doctrine defense, e.g., the new law requires an 'overt act' by the intruder. This is the reason the VDCL did not support the bill. Perhaps most concerning about the new law is that it essentially trades a common law requirement supported by Va case law to show a reasonably held belief that one is about to be seriously injured or killed for a new requirement that you prove the intruder committed an 'overt act' to justify use of deadly force. The former standard is an easier standard to meet, especially in front of a Va jury than is the new standard.

Now we will need to pass a range of amendments to insure that we do no lose our broader common law rights.

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Originally Posted by bklynboy

This bill is nothing to celebrate. It arguably increases the burden over the existing common law burden when claiming a castle doctrine defense, e.g., the new law requires an 'overt act' by the intruder. This is the reason the VDCL did not support the bill. Perhaps most concerning about the new law is that it essentially trades a common law requirement supported by Va case law to show a reasonably held belief that one is about to be seriously injured or killed for a new requirement that you prove the intruder committed an 'overt act' to justify use of deadly force. The former standard is an easier standard to meet, especially in front of a Va jury than is the new standard.

Now we will need to pass a range of amendments to insure that we do no lose our broader common law rights.

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Someone breaking into your home is an overt act.

One thing about the Castle Doctrine that I find would be of benefit to everyone is the homeowner being immune from civil lawsuits as a result of defending himself/herself. That is the other nightmare a homeowner has to face even if he/she won the criminal case.

Quote:

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Originally Posted by bklynboy

This bill is nothing to celebrate. It arguably increases the burden over the existing common law burden when claiming a castle doctrine defense, e.g., the new law requires an 'overt act' by the intruder. This is the reason the VDCL did not support the bill. Perhaps most concerning about the new law is that it essentially trades a common law requirement supported by Va case law to show a reasonably held belief that one is about to be seriously injured or killed for a new requirement that you prove the intruder committed an 'overt act' to justify use of deadly force. The former standard is an easier standard to meet, especially in front of a Va jury than is the new standard.

Now we will need to pass a range of amendments to insure that we do no lose our broader common law rights.

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The problem of the common law doctrine is that the homeowner still has to retreat if it is safe to do so. And the Castle Doctrine does away with that. It is not perfect as it will require some refinement. But I feel it is the first step in the right direction.

Witnesses will have to report on overt acts...:image035:

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Originally Posted by Jason Storm

The problem of the common law doctrine is that the homeowner still has to retreat if it is safe to do so.

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Source / citation for this statement, please.

Every case I have read supports that we are already a stand-your-ground state wherever you may be.

In addition to the question of what constitutes an overt act, I am personally concerned about the "unlawfully entered the dwelling and committed an overt act" wording in the bills, as I posted earlier.

Under current Virginia Common-law and case-law I could have invited someone into my home, he/they subsequently go ballistic, and if I reasonably fear death or grievous bodily injury to myself or others I am protected.

However, the "and" in the "unlawfully entered the dwelling and committed an overt act" raises more than a little concern, IMHO.

The courts tend to treat the "and" v. "or" in statutes very literally.

If they legally enter and then committed an overt act what will the court do?

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Originally Posted by DaveH

Source / citation for this statement, please.

Every case I have read supports that we are already a stand-your-ground state wherever you may be.

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It is still a good idea and also can make a homeowner immune to civil lawsuits by the perp. You can argue on this but I will remain in support of it.

I would also like to see constitutional carry but the proposal has stalled in the VA House Committee right now. If passed, that would be a great thing.

at least it's in the starting block

Good for them!

Quote:

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Originally Posted by Jason Storm

It is still a good idea and also can make a homeowner immune to civil lawsuits by the perp. You can argue on this but I will remain in support of it.

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I'm not up on the fine details of the wording in this but I see it as a big plus re the immunity to civil lawsuits so I'll say I also support this.

INAL, however I know of County Commonwealth Attorney who are concerned -- as in my personal attorney.

Their reaction, as a attorneys, was that the "overt act" wording makes these bills very subjective and quite probably a step backwards for self defense as understood by the courts under our common law.

Maybe, if we are lucky, we can get an amendment along the lines of "nothing herein contained shall remove/negate any other protection of common or case law."

These bill in their current form scare me.

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Originally Posted by Honk

House passes bill allowing lethal force against intruders | Richmond Times-Dispatch

As the intruder fled, the woman shot a round into the air to scare him, and was later taken to court by the man for shooting at him.

"And he won!" Crockett-Stark said. "We need this bill."

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INAL. However IMHO, not only was it wrong under our current common law and case law, to "firing a shot to scare him" once the danger was over, I don't see where these bill address that situation.

Also, it is not clear that he had "entered" the house fully. Nor is there an articulation of him having committing a subsequent overt act.

As I posted before, there are States that have very arbitrary boundaries to what is your "Castle" -- e.g., the perp is coming through the window but falls out-side when shot, then State's courts find that he was not all the way in your castle and therefore you could be in very deep Kimchi.

Or say three perps are breaking into your house. One comes through the busted down front door. You open fire killing or injuring all three. In some States you are OK on the one actually inside but not for the two still outside (because the situs requirement of the statutory "Castle Doctrine" was not met) as they had not yet fully "unlawfully entered" your dwelling. Etc. Etc. ETC.

Then there is the question of them not having committed an overt act, what ever that is, in addition to breaking in.

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In all fairness, I do know attorneys who think these bills a a wash or are an acceptable first step that can be amended if / as problems arise. So, yes there are so many various points pro and con many here in Virginia staying neutral.

I hope that those pro these bills are right. Time will tell.