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Thread: Senator Stuart incorrectly claims that VA has a "duty to retreat"

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    Regular Member paramedic70002's Avatar
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    Senator Stuart incorrectly claims that VA has a "duty to retreat"

    Author of VA's failed Castle Doctrine legislation apparently doesn't understand VA's Common Law that he was trying to Codify.

    http://news.fredericksburg.com/newsd...K--IA.facebook

    Mr. Hawes sets him straight in the comments!

    “We do have a duty to retreat in Virginia,” Stuart added. “If you are threatened, and you have the ability to retreat and remove yourself from the threat, then you’ve got a responsibility to do that before you shoot to kill.”
    Daniel L. Hawes, Esq.17 hours ago


    1. "Stand your ground" law is not related to the "castle doctrine"; the former is a rule ancillary to the law of self defense and the latter is about defense of one's habitation and dwelling. So the third paragraph in the article is nonsense.
    2. Both "stand your ground" and the "castle doctrine" are part of Virginia law. The fact that there is no specific statute in the Code regarding these principles is irrelevant, because they are common law precepts, included by reference by Va. Code sections 1-200 and 1-201. Most of the law of Virginia is NOT in the Code. The proposed statutes introduced in 2012 were labelled "castle doctrine" bills but would actually have limited the rights of Virginians drastically; that's why they were not passed.

    3. Home defense and self defense are two different areas of law; they do not have the same elements and are not governed by the same principles. Both are more complex than would be suggested by the article, but there is no requirement for a specific threat to life in either. You cannot use deadly force to defend "mere" property; but a dwelling is not "mere" property, and different rules apply to defense of the home than other areas or things in which one may have a property interest. In fact, there is no requirement, in defending one's home, that he have any property interest in the home at all.

    4. There is no general duty to retreat in the law of self defense. That duty only arises in the "imperfect" form of the law of self defense, in which the person defending was at fault in initiating the conflict that led to the attack. I summarize the "perfect" form this way: "If a person reasonably believes, based on objective fact, that he or another innocent person, is faced with the imminent threat of serious bodily injury, then he may use whatever force he believes is reasonably necessary, up to and including deadly force, to stop that threat."

    Comment by Daniel L. Hawes, Esq. (www.VirginiaLegalDefense.com)


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    Moderator / Administrator Grapeshot's Avatar
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    With all due respect to the Senator, the problem could be with the staff writer either misquoting or over editing what he said.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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    Don't correct him .... let him remain in his dream world...

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    Regular Member scouser's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    Don't correct him .... let him remain in his dream world...
    The problem with that is it does no one else any good at all. Surely it's better that everyone who reads it sees for themselves just how wrong his statements are, rather than being left to believe he is speaking the truth.

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    The amount of people I work with have no clue about VA laws. It also wouldn't surprise me if they read that article and believed it. Anyone know if sen. Stuart has any plans on correcting what he said?
    Last edited by Lolcanoe; 07-30-2013 at 09:01 PM.
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    Re: Senator Stuart incorrectly claims that VA has a "duty to retreat"

    The above statement is made a bit ambiguous by the use of both duty and responsibility.

    Maybe he is confused between retreating being the responsible thing to do in many situations, and it being an actual legal duty.



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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by arentol View Post
    The above statement is made a bit ambiguous by the use of both duty and responsibility.

    Maybe he is confused between retreating being the responsible thing to do in many situations, and it being an actual legal duty.



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    If you are part of the problem, you must retreat as much as possible in order to claim an excusable defense.

    Justifiable And Excusable Homicide

    Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.

    Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.

    Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, (1958).
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Campaign Veteran skidmark's Avatar
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    But the Senator was not discussing imperfect self defense.

    We hold each other to a rather high standard here when someone makes a bald-faced statement that X "always" exists/applies.

    Why anybody would be willing to let someone responsible to writing and enactingt the laws we must live with and abide by get by with a lower standard utterly flabberghasts me.

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    Ahhh.... there in lies the rub

    Quote Originally Posted by skidmark View Post
    But the Senator was not discussing imperfect self defense.

    We hold each other to a rather high standard here when someone makes a bald-faced statement that X "always" exists/applies.

    Why anybody would be willing to let someone responsible to writing and enactingt the laws we must live with and abide by get by with a lower standard utterly flabberghasts me.

    stay safe.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by Lolcanoe View Post
    The amount of people I work with have no clue about VA laws. It also wouldn't surprise me if they read that article and believed it. Anyone know if sen. Stuart has any plans on correcting what he said?
    I dropped the reporter an e-mail advising her of the error and suggesting that the Senator might want to clarify.

    Crickets.

    TFred

  11. #11
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by TFred View Post
    I dropped the reporter an e-mail advising her of the error and suggesting that the Senator might want to clarify.

    Crickets.

    TFred
    Liberal crickets - conservative crickets would eat holes in her socks while they waited.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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