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Thread: Using deadly force when confronted with a "Forcible Felony"

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    Regular Member Esanders2008's Avatar
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    Using deadly force when confronted with a "Forcible Felony"

    So I was doing some research and came across something that bothers me. Apparently VA does not allow the use of lethal force unless one believes he is in imminent danger of loss of life or great bodily injury. Even in one's own home, one can not use LF against an intruder unless he believes he personally is at risk. VA also does not recognize "presumed fear" of an intruder being in your home. Does this mean that if someone enters my home in the middle of the night, unarmed, and begins taking my tv out the door, that I can not defend my home?

    Also, this seems to apply to being held up for my wallet without being held at gun- or knife-point, or even a carjacking under the same circumstance.

    In case anyone was wondering, here is the link that sparked my curiosity:
    http://rvanews.com/news/florida-vs-v...nse-laws/58745

    -Eddy

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    Activist Member Wolf_shadow's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    So I was doing some research and came across something that bothers me. Apparently VA does not allow the use of lethal force unless one believes he is in imminent danger of loss of life or great bodily injury. Even in one's own home, one can not use LF against an intruder unless he believes he personally is at risk. VA also does not recognize "presumed fear" of an intruder being in your home. Does this mean that if someone enters my home in the middle of the night, unarmed, and begins taking my tv out the door, that I can not defend my home?

    Also, this seems to apply to being held up for my wallet without being held at gun- or knife-point, or even a carjacking under the same circumstance.

    In case anyone was wondering, here is the link that sparked my curiosity:
    http://rvanews.com/news/florida-vs-v...nse-laws/58745

    -Eddy
    IANAL but as I recall from previous discussions you cannot use lethal force to protect property. The TV is walking out the door you have to let it go. I'm sure user will chime in when he has time.

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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    Apparently VA does not allow the use of lethal force unless one believes he is in imminent danger of loss of life or great bodily injury.
    Yep. It must be an immediate threat of death, or serious bodily injury to yourself, or an innocent third party.

    Quote Originally Posted by Esanders2008 View Post
    Does this mean that if someone enters my home in the middle of the night, unarmed, and begins taking my tv out the door, that I can not defend my home?
    You cannot use deadly force to protect "property".


    One of the most important things someone needs to know when carrying, is when they are allowed to use deadly force.
    Last edited by ProShooter; 08-31-2012 at 01:23 PM.
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    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by ProShooter View Post
    Yep. It must be an immediate threat of death, or serious bodily injury to yourself, or an innocent third party.



    You cannot use deadly force to protect "property".
    Well I would assume an immediate threat to myself, except VA doesn't allow a presumed fear.

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    Regular Member Tanner's Avatar
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    I feel like they are ignoring that fact that people can and offten do seriously hurt and or kill people with nothing but their bare hands. This all goes without saying that if im carrying a firearm and someone began to struggle with me over my wallet I can not assume that he/she wont try to take my weapon.

    Also I would ask if you have the right to try to stop them from taking the tv. My guess is that you do. If then a physical altercarion follows, one may be authorized to use deadly force. I would argue that the "which means that you cannot instigate behavior that would ultimately require you to defend yourself." statement would be iffy at best. I guess it comes down to weather or not you have the right to try and stop people from stealing from you.

    What are your thoughts on this?
    Last edited by Tanner; 08-31-2012 at 01:33 PM.

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    Regular Member Numenor's Avatar
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    I believe this is why it's VERY important to be careful what you say to police. You need to be able to articulate that you felt fear for yourself/others, telling a cop "I shot this guy who broke into my house" does not do that.

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    Its retarded of course. Napoleonic code on my land....I have told my local cops this and they said "what's that?" .. I told them, if you don't know then you do not want to find out the hard way.

    I would work to change that stupid law.

    Now if kids are getting their frisbee that flew onto my land then I let them get it of course. Napoleon liked to play frisbee.

    Recommend if you shoot someone in your house not to talk to the cops ... save it for court; looks like in VA, you'll be having a trial anyway.

    Commie law.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    Well I would assume an immediate threat to myself, except VA doesn't allow a presumed fear.
    According to some people, making faces is sufficient proof of the intent to do grievous bodily harm.




    Shooting someone is pretty serious Eddy.

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    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by Tanner View Post
    I feel like they are ignoring that fact that people can and offten do seriously hurt and or kill people with nothing but their bare hands. This all goes without saying that if im carrying a firearm and someone began to struggle with me over my wallet I can not assume that he/she wont try to take my weapon.
    That is very true. During my time in the Navy, I once threw a 220 lb man across a room before he could "shoot" me with his training gun. For reference I am 6'0" 140 lbs.

    But here is a scenario:

    I wake up to my front door being opened by force, proceed to my living room and see an intruder carrying my TV. If I draw on him, and tell him to stop, and he begins to advance toward me, can I deploy lethal force then? Or did I "instigate" the conflict?

    This is so confusing.

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by Wolf_shadow View Post
    IANAL but as I recall from previous discussions you cannot use lethal force to protect property. The TV is walking out the door you have to let it go. I'm sure user will chime in when he has time.
    You can in Texas. (Texas penal code 9.42) if the thief is fleeing and stopping him by less then lethal means would expose you to undue risk to recover your property.

    Evidentially people have used deadly force against thieves and not been charged

    http://www.chron.com/news/houston-te...le-3676412.php

    However, I am aware of no other state that allows deadly force to recover property, although I've heard that if you see the person steal your property you can legally citizens arrest them in WA, and technically if the citizens arrest is valid you're not committing unlawful imprisonment or assault, so if they try to resist your CA with force then you may be justified. But I wouldn't risk it. I'm not aware of that philosophy ever being tried
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    Regular Member WalkingWolf's Avatar
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    Do not shoot someone in the back, that is it simply. You can still try to stop a person from stealing your tv, or your wallet. The law does not say you have to help them rob you, just you cannot used deadly force to protect property. Police in most states are allowed to use deadly force for a felon fleeing a forcible felony. Not sure about VA.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    That is very true. During my time in the Navy, I once threw a 220 lb man across a room before he could "shoot" me with his training gun. For reference I am 6'0" 140 lbs.

    But here is a scenario:

    I wake up to my front door being opened by force, proceed to my living room and see an intruder carrying my TV. If I draw on him, and tell him to stop, and he begins to advance toward me, can I deploy lethal force then? Or did I "instigate" the conflict?

    This is so confusing.
    This is a pretty deep subject Eddy. Dan Hawes has written a good deal about it nd conducts use of force seminars.

    You might do well to research that as much as possible then come up with scenarios.

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    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by peter nap View Post
    This is a pretty deep subject Eddy. Dan Hawes has written a good deal about it nd conducts use of force seminars.

    You might do well to research that as much as possible then come up with scenarios.
    Where might I find some of his written work?

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    Quote Originally Posted by WalkingWolf View Post
    Do not shoot someone in the back, that is it simply.
    I understand the context of your statement. But cut and dry "don't shoot someone in the back" is not necessarily always advisable.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    Where might I find some of his written work?
    Google User opencarry.org

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    Regular Member Tanner's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    That is very true. During my time in the Navy, I once threw a 220 lb man across a room before he could "shoot" me with his training gun. For reference I am 6'0" 140 lbs.

    But here is a scenario:

    I wake up to my front door being opened by force, proceed to my living room and see an intruder carrying my TV. If I draw on him, and tell him to stop, and he begins to advance toward me, can I deploy lethal force then? Or did I "instigate" the conflict?

    This is so confusing.
    I guess the small details would matter. Did he put down the tv? did he draw somekind of weapon? Maby he was going to throw the tv at you... In my opinion the situation was instigated by the guy breaking into your house and taking your tv. Again it all comes down to weather or not we are allowed to physicaly stop them in a non lethal way. Obviously once you try to stop them they will either run or stay to fight. At this point I would say you have the right to protect yourself and are justified in useing lethal force. THIS IS NOT LEGAL ADVICE. Just sharing my thoughts here.

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Its retarded of course. Napoleonic code on my land....I have told my local cops this and they said "what's that?" .. I told them, if you don't know then you do not want to find out the hard way.

    I would work to change that stupid law.

    Now if kids are getting their frisbee that flew onto my land then I let them get it of course. Napoleon liked to play frisbee.

    Recommend if you shoot someone in your house not to talk to the cops ... save it for court; looks like in VA, you'll be having a trial anyway.

    Commie law.

    Bad idea, shots fired call, man laying in pool of blood, man with gun says "I want my lawyer" the LAC will definitely go to jail in that set of circumstances. And the jury detectives and DAs will base their decisions off that initial officers report. You need to give them enough info to establish yourself as the victim complainant. The hour long video with the fast talking lawyer saying never talk to police has obviously not been posted with self defense in mind. Your defense involves admitting to committing a homicide, you need to provide basic information to the initial officers.

    http://www.youtube.com/watch?v=pCZXZMYyRl4

    This is a better idea
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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    I understand the context of your statement. But cut and dry "don't shoot someone in the back" is not necessarily always advisable.
    Well all we have to do is take a look at Zimmerman. He did not shoot in the back, IMO was clearly justified, the law backs him up in that state. And he is still on trial for murder. One of the things most of us, if not all of us understand is we are going to probably be put through the ringer if we use deadly force. The courts rule mostly across the states that the suspect must be a danger to others to shoot them fleeing, instead of just shooting them for felonies, it must be a forcible felony; murder, aggravated battery, armed robbery, rape, and so on. Crimes of physical violence that cause serious injury or death. Even if justified a lengthy trial will be more expensive than even a expensive tv.

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    Quote Originally Posted by EMNofSeattle View Post
    Bad idea, shots fired call, man laying in pool of blood, man with gun says "I want my lawyer" the LAC will definitely go to jail in that set of circumstances. And the jury detectives and DAs will base their decisions off that initial officers report. You need to give them enough info to establish yourself as the victim complainant. The hour long video with the fast talking lawyer saying never talk to police has obviously not been posted with self defense in mind. Your defense involves admitting to committing a homicide, you need to provide basic information to the initial officers.

    http://www.youtube.com/watch?v=pCZXZMYyRl4

    This is a better idea
    Anything you say can and will be used against you in the court of law...........AGAINST. My thoughts are that you may not be in the perfect state of mind to comment on what happend. After all you were just forced to kill someone. Unless you are chuck norris I can imagine that this would bother you. Its better to be safe than sorry. Talking to the police in most (some would say in all) situations talking to the police will cause you more harm than good.

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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by Tanner View Post
    Anything you say can and will be used against you in the court of law...........AGAINST. My thoughts are that you may not be in the perfect state of mind to comment on what happend. After all you were just forced to kill someone. Unless you are chuck norris I can imagine that this would bother you. Its better to be safe than sorry. Talking to the police in most (some would say in all) situations talking to the police will cause you more harm than good.
    Agreed, go to the hospital get your heart checked out, and wait for the attorney there.

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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by Esanders2008 View Post
    So I was doing some research and came across something that bothers me. Apparently VA does not allow the use of lethal force unless one believes he is in imminent danger of loss of life or great bodily injury. Even in one's own home, one can not use LF against an intruder unless he believes he personally is at risk. VA also does not recognize "presumed fear" of an intruder being in your home. Does this mean that if someone enters my home in the middle of the night, unarmed, and begins taking my tv out the door, that I can not defend my home?

    Also, this seems to apply to being held up for my wallet without being held at gun- or knife-point, or even a carjacking under the same circumstance.

    In case anyone was wondering, here is the link that sparked my curiosity:
    http://rvanews.com/news/florida-vs-v...nse-laws/58745

    -Eddy
    The phase is "serious bodily harm". You do not have to be in fear of death before you engage in the use of deadly force. What is serious bodily harm? Examples are broken bones, lacerations, burns, disfiguring injuries, puncture wounds, gun shot wounds, temporary unconsciousness, and similar injuries.

    There are five felonies for which deadly force can be a response: rape, robbery, murder, arson, and burglary. Remember if someone breaks into your home in the daytime, they are not a burglar. They are a trespasser and trespassers are not one of the five felonies. If, on the other hand, the break-in occurs at night, then the perp is a burglar.

    Now as for the TV going out the back door, if you see this and you yell at the perp and he takes off, you must not fire at him. On the other hand, if when you yell at him, he turns and comes at you, he is a threat and you must assume the worse case scenario.

    INAL so I do hope that user will weigh in on all of this. I have been to three of his seminars and advise anyone who carries to do the same. Perhaps I should go again as well.
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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by Tanner View Post
    Anything you say can and will be used against you in the court of law...........AGAINST. My thoughts are that you may not be in the perfect state of mind to comment on what happend. After all you were just forced to kill someone. Unless you are chuck norris I can imagine that this would bother you. Its better to be safe than sorry. Talking to the police in most (some would say in all) situations talking to the police will cause you more harm than good.
    Yes, by all means keep your mouth closed and wait for your attorney to arrive. I would bet more good people have been convicted because they failed to adhere to this simple truth. But in such extreme situations as these, it is natural to want to talk... to explain your actions. This is probably more than likely to convince yourself that your use of deadly force was justified than to explain to others what you did and why.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Its retarded of course. Napoleonic code on my land....I have told my local cops this and they said "what's that?" .. I told them, if you don't know then you do not want to find out the hard way.

    I would work to change that stupid law.

    Now if kids are getting their frisbee that flew onto my land then I let them get it of course. Napoleon liked to play frisbee.

    Recommend if you shoot someone in your house not to talk to the cops ... save it for court; looks like in VA, you'll be having a trial anyway.

    Commie law.
    All well and good, but Virginia law while perhaps influenced by the Napoleonic code, is based primarily on English Common Law (which is often quoted/cited in court cases here in VA) and precedes Napoleon's reforms by hundreds of years.

    One may use force equal to, but not in excess to protect property.

    Example: some one is physically carrying my TV w/o my permission out the door. IMO, I may physically prevent or deter them from accomplishing that illegal task - believe that at the least we are talking hands-on here; at the best using less lethal force as the situation warrants. Still looking for a cite though

    Might be a different ballgame if the perp takes life or limb threatening action against me. Introduce the disparate capacity for use of force here - I am not the fit 25 year old I once was. ymmv
    Last edited by Grapeshot; 08-31-2012 at 06:15 PM. Reason: formating
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    Campaign Veteran skidmark's Avatar
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    Fear alone is not enough reason to use deadly force.

    The court differentiates between fear (the troubling thought that something may happen) and apprehension (the reasonably held belief that something is going to happen right here, right now).

    Violent felonies (usually rape, kidnapping, arson and the like) are considered to have an element of imminent death or serious bodily harm. Someone walking yout TV out the door at 3 AM does not, so you are not justified in using deadly force. That does not mean you cannot attempt to stop the theft in progress or attempt to detain the alleged thief (but be careful that you do not commit kidnapping when doing so) - it just means you have to find other ways to do it.

    Having a gun is generally thought of as having the means and ability to defend your life, or the life of an innocent other. It is not there to help you enforce the laws - thaty's what the police are there for. Many people are not happy with that state of affairs, but most of those who are not happy are not willing to end up in prison for their beliefs.

    stay safe.
    Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001).

    "The principles governing a plea of self-defense are well-established. Self-defense is an affirmative defense to a charge of murder, and in making such a plea, a "defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). The "bare fear" of serious bodily injury, or even death, however well- grounded, will not justify the taking of human life. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887, 900 (1874). "There must [also] be some overt act indicative of imminent danger at the time." Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935). See also Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977); Mercer v. Commonwealth, 150 Va. 588, 597, 142 S.E. 369, 371 (1928). In other words, a defendant "must wait till some overt act is done[,] . . . till the danger becomes imminent." Vlastaris, 164 Va. at 652, 178 S.E. at 777. In the context of a self-defense plea, "imminent danger" is defined as "[a]n immediate, real threat to one's safety . . . ." Black's Law Dictionary 399 (7th ed. 1999). "There must be . . . some act menacing present peril . . . [and] [t]he act . . . must be of such a character as to afford a reasonable ground for believing there is a design . . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution." Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893).
    In holding that the trial court erroneously refused to instruct the jury on self-defense, the Court of Appeals construed the term "imminent" to mean something less than "immediate." Sands, 33 Va. App. at 678, 536 S.E.2d at 465 (quoting Sam v. Commonwealth, 13 Va. App. 312, 325, 411 S.E.2d 832, 839 (1991)). Applying its view of that term, the Court of Appeals concluded that, "[u]nder the facts of this case, the fact finder could reasonably have concluded that [the defendant] was without fault in beginning the altercation, reasonably apprehended she was in imminent danger of death or serious bodily harm and, thus, was justified in shooting her husband to prevent him from killing her or further inflicting serious bodily harm upon her." Sands, 33 Va. App. at 679, 536 S.E.2d at 465.
    We agree that the defendant reasonably believed that she was in danger of serious bodily harm or death. Nevertheless, that reasonable belief is not dispositive of the issue before us in this appeal. The question here is whether the circumstances immediately surrounding the killing, specifically, the actions of the defendant's husband at that time, were sufficient to create a reasonable belief of an imminent danger which had to be met. The Court of Appeals did not squarely address this requirement of an overt act.
    Even when viewed in the light most favorable to the defendant, the evidence fails to reveal any overt act by her husband that presented an imminent danger at the time of the shooting. The last episode between the defendant and her husband occurred after the defendant telephoned Shelton. Then, sufficient time elapsed for Shelton to arrive at the couple's home, and for the defendant to view the extent of her injuries while in the bathroom with Shelton, walk from the bathroom to the living room door, turn around and proceed back into the kitchen, retrieve a gun from a cabinet, and walk back into the bedroom where her husband was reclining on the bed, watching television. At that moment, the only reaction by the defendant's husband was his question, "What are you doing[?]" While we do not doubt the defendant's genuine fear for her life or minimize the atrocities inflicted upon her, we cannot point to any evidence of an overt act indicating imminent danger, or indeed any act at all by her husband, when she shot him five times while he reclined on the bed. Nor did the Court of Appeals cite to any such evidence. Thus, the defendant was not entitled to an instruction on self-defense. The requirement of an overt act indicative of imminent danger ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity. "The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity." Vlastaris, 164 Va. at 651, 178 S.E. at 776.
    CONCLUSION For these reasons, we will reverse the judgment of the Court of Appeals and enter final judgment reinstating the convictions. Reversed and final judgment."
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    Regular Member Tanner's Avatar
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    Quote Originally Posted by Grapeshot View Post
    All well and good, but Virginia law while perhaps influenced by the Napoleonic code, is based primarily on English Common Law (which is often quoted/cited in court cases here in VA) and precedes Napoleon's reforms by hundreds of years.

    One may use force equal to, but not in excess to protect property.

    Example: some one is physically carrying my TV w/o my permission out the door. IMO, I may physically prevent or deter them from accomplishing that illegal task - believe that at the least we are talking hands-on here; at the best using less lethal force as the situation warrants. Still looking for a cite though

    Might be a different ballgame if the perp takes life or limb threatening action against me. Introduce the disparate capacity for use of force here - I am not the fit 25 year old I once was. ymmv
    And im not the fit 25 year old I should be!!!

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