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Thread: Duty to Retreat, Verbal Warning

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    Regular Member VAopencarry's Avatar
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    I have searched around VA Code specifically, 18.2 Chapter 4. I can't find anything regarding Castle Doctrine-Duty to Retreat and give a verbal warning before shooting in self defense in your home. I am inclined to think such verbage does not exist. Case law? Some knucklehead, who I would usually never give any credence to what he says regarding the law, said he learned this in a college law class. Any help here?
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    I am not aware if is exists either. I would love to have it book marked if it does.

    My philosophy is try to avoid killing another unless you must!!

    If you have a burglar in your house on the first floor and your entire family is on the second floor... there is no imminent threat. You are only going to lose property andI cannot see killing someone over property.

    Now when he heads upstairs we have a problem!! I feel that I can reasonably justify shooting someone AFTER warning them to stop and are headed toward my family.

    The house is dark and you do not know if he is armed. You could alwaysbe charged for killing the burglar if he was unarmed! Just because he is in your house does not grant you the right to kill him.

    But think of this......

    The burglar's family will sue you and could win!! You have so much more to lose than a handful of property!! If you shoot an unarmed man over propertythe jury might not agree with that.

    Now most ANY person would side with you if you were cornered with no possible retreat. This is where you get the "retreat as far as possible before you shoot."

    If your home alone you could lock yourself in your room and lock the door. But if you have family in several rooms you cannot do that and you will have to make a stand.

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    Regular Member SouthernBoy's Avatar
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    Virginia has no duty to retreat law either in your home or anywhere else you have a right to be and/or are legally present. As for giving a verbal warning before using deadly force, this is highly unadviseable and could get you killed in many cases...

    Except the one described by LEO 229. If you are upstairs in a two-story home and you hear someone who has broken in through the basement or first floor, yelling at them to get out is wise because more likely than not, that is exactly what they'll do. Still, someone who breaks in at night has to know there is a strong possiblity that the home will be occupied. Now if the fail to leave and start up the stairs to the sound of your voice, an entirely new set of "rules" applies. You must assume the worse case scenario because the intruder is closing the distance and taking the decision to put in in imminent danger. This is when you must be ready and willing to use deadly force because someone who hears your shout and warnings and still decides to advance on you can only be considered to be a deadly threat to you and your family.

    If you live in a single-story home, all of this changes drastically since the threat is on the same floor from the get-go. You very well may have to open fire right away since you don't have the built in buffer of a two-story.

    Virginia sorely needs a Castle Doctrine set of laws to protect victims from becoming double victims through zealous prosecutors and opportunistic perps and their families. While you always have to be as certain as possible that any shooting you become involved in is justifiable, without these protections, you have to worry about the aftermath as well. This can get you killed due to hesitation.. something the anti forces would love to see happen.

    The book, "In the Gravest Extreme" has a very good treatise on this very topic. You should pick this one up and read it.

    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.

    America First!

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    Being on the first floor is tough. You have little room to moveand you are right there with the burglar. You do not much time to react.

    And SouthernBoy is right... You better know what your willing to do!! Do not pull that gun unless you are ready and willing to use it!

    I say plan ahead and think about what you would do in your own home. Where would you go? What would you do?

    Residential burglaries happen during the day by the professionals. Night time burglaries are done by the rookies!

    Pros want to get in and out with NO contact with people. Rookies do not have a clue and mayarm themselvessince they knowpeople inside may be sleeping.



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    Campaign Veteran skidmark's Avatar
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    By far the best and easiest source of case law on all things firearms and self defense is www.virginia1774.org .

    "Castle Doctrine" comes from English Common Law, which forms the basis for Virginia law and jurisprudence. Read up on it at the site.

    IANAL and all that, but if you have time to issue a warning or challenge you are not in a situation where you are in imminent fear of death or grevious bodily injury. Thus, you have no "right" to the use of lethal force for self defense.

    stay safe.

    skidmark
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    Newbie W.E.G.'s Avatar
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    You won't find the answer for Virginia in the statutes. The answer is found in the case law.

    In Virginia, you have no duty to retreat unless you committed an act (including words), which provoked the guy who is about get shot.

    If you didn't provoke him, and he attacks you in such a way to cause you to reasonably fear for your life, or fear serious bodily injury, a shooting will be justified.

    If you DID provoke him, you have a duty to "retreat to the wall." Only when all reasonable avenue of escape is eliminated will you be justified in shooting the person whom you provoked.

    See http://www.courts.state.va.us/opinio...tx/2874042.txt


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    Regular Member SouthernBoy's Avatar
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    skidmark wrote:
    By far the best and easiest source of case law on all things firearms and self defense is http://www.virginia1774.org .

    "Castle Doctrine" comes from English Common Law, which forms the basis for Virginia law and jurisprudence. Read up on it at the site.

    IANAL and all that, but if you have time to issue a warning or challenge you are not in a situation where you are in imminent fear of death or grevious bodily injury. Thus, you have no "right" to the use of lethal force for self defense.

    stay safe.

    skidmark
    Issuing a warning is not a bad idea, if and when circumstances permit, such as the one I described in a two-story dwelling. I should have added to this that as soon as a break in was detected, a call to 911 should be made. Not so much for help, but more along the lines of having your actions on tape, which could go a long way should you get charged or have to face a civil suit. So yelling for the perp(s) to get out of your home is really a positive here. It also proves that you went beyond the pale and tried your best to avoid a deadly encounter.

    However, when presented directly with a deadly threat, I completely agree with you that no verbal warning of any kind should be in your order of "things to do" when responding to such a threat. If your attacker(s) stop their assault when they see your weapon, then you might tell them to get away, if they haven't already fled, and leave you alone, but that is only an option and should not be considered otherwise.

    As for having the right to respond with deadly force, you always have that right wherever you may be (legally and acting within the law) if you are in fear for your well being (as in death or serious injury).

    In the beginning of "The Good, The Bad, and The Ugly", the Eli Wallach says, after shooting his assailants, "when you come to shoot.. shoot, don't talk". That's actually pretty good advice.

    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.

    America First!

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    Regular Member SouthernBoy's Avatar
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    I have a question for LEO 229.. others please feel free to chime in, too. I am not trying to hijack this thread since this is in the same subject area already raised.

    I have long wondered about the part of the fearing for one's life that says in effect, "serious or grave bodily harm". I'm quite sure that there are a host of variables involved with this one. The obvious is the presentation of either a weapon or serveral BG's not out to sell you Christmas cards or both. But there is a lot of grey area here.

    If two guys start pushing you around and hassling you, how do you know that this is not about to escalate into a very real situation, like a serious or fatal beating, or anything in between? I seem to recall when taking my CCW course something like 13 years ago, that the lawyer who spoke on the second day talked about the perception of fear of grave harm or death. The concept of perception is really in the eyes of the one who perceives the threat.. barring the obvious. So if I am acosted by a couple of young toughs, I know I will be in fear for my safety since I am quite a bit older than they are and can no longer run away effectively enough to get out of danger. My avenue then is to resort to deadly force maybe sooner than someone else who is in a better position than I am.

    I would love to hear opinions on this one.

    Thanks.

    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.

    America First!

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    Campaign Veteran kimbercarrier's Avatar
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    skidmark wrote:
    By far the best and easiest source of case law on all things firearms and self defense is http://www.virginia1774.org .

    "Castle Doctrine" comes from English Common Law, which forms the basis for Virginia law and jurisprudence. Read up on it at the site.

    IANAL and all that, but if you have time to issue a warning or challenge you are not in a situation where you are in imminent fear of death or grevious bodily injury. Thus, you have no "right" to the use of lethal force for self defense.

    stay safe.

    skidmark
    The way I understand this is , how YOU percieved the threat. If someone is in my house (a single story) at night, they know I am home because my vehicles are out front.

    I am probably going to percieve this as a deadly threat and handle it like wise. And no I have never been in this situation so it's speculation on my part how it would be handled not knowing all the different scenarios.

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    There are times when you need the advantage.

    Nothing says you cannot say "stop or I will shoot" and then shoot.

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    Newbie W.E.G.'s Avatar
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    SouthernBoy wrote:
    If two guys start pushing you around and hassling you
    ...and you shoot them both dead, the decision of whether your actions were reasonable self defense is a question of fact for the jury to decide.

    One jury could decide it one way, and another jury could decide it the exact opposite way.

    This is a question of fact. It is NOT a question of law.

    Hence the bedrock of the phrase, "Better to be judged by 12 than carried by 6."

    Proceed (or fail to proceed) at your peril.

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    Many many years ago in elementary school it was explained to me that the role of the judicial branch of government is to interpret the laws. I thought that was the stupidest thing I had ever heard but through the years I have come to understand what was meant by it. We all want laws to be cut and dried spelling out exactly what is legal and what isn't, however that is not the way our system of laws work whether we want it to or not. "serious or grave bodily harm" is one of those things along with a verbal warning and a million other thing that will be interpreted by the courts. That is the way it is intended by our lawmakers. The ironic thing is how a legislature member will ask the Attorney General for an opinion on a law that the legislature wrote. Think about that.

    Terms are written to allow for judgement and there is no way that one definition will work for all instances, such as a one story vs. a two story house. Just remember that when you start to take another person's life there will be no saying "I'm sorry, I didn't mean to and I take it back". Be sure you have no other choice and you won't have to worry about whether or not you need a verbal warning.

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    I would hate to be in court and be asked... "Why didn't you just lock yourself in the back room"" or "Is there a reason why you did not try to just get away?"

    Make sure you have valid reasons to justify why you shot the intruder.

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    W.E.G. wrote:
    If you DID provoke him, you have a duty to "retreat to the wall." Only when all reasonable avenue of escape is eliminated will you be justified in shooting the person whom you provoked.

    See http://www.courts.state.va.us/opinio...tx/2874042.txt
    What if you are inable to retreat due to disability?

    I've got bad knees, and I'm not able to get much distance out of my running before it starts hurting for a while.
    Why open carry? Because 1911 > 911.

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    LEO 229 wrote:
    There are times when you need the advantage.

    Nothing says you cannot say "stop or I will shoot" and then shoot.
    If my rottweiler and german shepherd mix's reaction to someone being in my house doesn't give them the idea that they shouldn't be there, then lead will be following shortly.

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    AbNo wrote:
    W.E.G. wrote:
    If you DID provoke him, you have a duty to "retreat to the wall." Only when all reasonable avenue of escape is eliminated will you be justified in shooting the person whom you provoked.

    See http://www.courts.state.va.us/opinio...tx/2874042.txt
    What if you are inable to retreat due to disability?

    I've got bad knees, and I'm not able to get much distance out of my running before it starts hurting for a while.
    Just make sure you don't go hopping and skiping into court where the jury can see you.

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    Newbie W.E.G.'s Avatar
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    AbNo wrote:
    What if you are inable to retreat due to disability?

    I've got bad knees, and I'm not able to get much distance out of my running before it starts hurting for a while.
    You don't get a pass on the law. But your facts might define the location differently than a buff 19-year-old right off of Paris Island.

    Still, it would be advisable not to antagonize people to fight if you want the law to be on your side - irrespective of the condition of your knees.

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    Well, I usually don't antagonise people.... TOO much....

    And actually, I make it a point to be nice when I'm carrying.
    Why open carry? Because 1911 > 911.

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    Bulldog1967 wrote:
    LEO 229 wrote:
    There are times when you need the advantage.

    Nothing says you cannot say "stop or I will shoot" and then shoot.
    If my rottweiler and german shepherd mix's reaction to someone being in my house doesn't give them the idea that they shouldn't be there, then lead will be following shortly.
    Well said!!

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    Regular Member SouthernBoy's Avatar
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    LEO 229 wrote:
    Bulldog1967 wrote:
    LEO 229 wrote:
    There are times when you need the advantage.

    Nothing says you cannot say "stop or I will shoot" and then shoot.
    If my rottweiler and german shepherd mix's reaction to someone being in my house doesn't give them the idea that they shouldn't be there, then lead will be following shortly.
    Well said!!
    Also there is this. Say we're talking the two-story scenario here. Three BGs break in to your basement or first floor and you are awake right away to the sounds. You have a planned routine whereby the wife gets on the phone to 911 and hides herself in the bedroom while you grap your weapon and position yourself at the doorway. You yell for the intruders to get out of your home.

    One gets out, but the other two decide to go up stairs to "investigate" other possiblities. At this moment, the intruders have just passed from break-in BGs to deadly threats. They know someone is upstairs and they have been warned to get out. Now they are making their way to your territory.

    As part of your plan, you should have already determined at what point you will, under no circumstances, allow them to cross without a deadly response from you. More warnings go unheeded and they continue to climb the stairs. You should be prepared to open fire as soon as they present a viable target to you.

    One other thing about your position. Long ago, I determined that yes, I would be hidden around the doorway to my bedroom, but not standing up. I would be lying down because a BG would not expect that and if he is armed and opens fire, the likelyhood is his fire will be directed to a man's thoractic area. Lying on the floor could buy me a few seconds and a few rounds of return fire to take out the threat.

    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.

    America First!

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    VAopencarry wrote:
    I have searched around VA Code specifically, 18.2 Chapter 4. I can't find anything regarding Castle Doctrine-Duty to Retreat and give a verbal warning before shooting in self defense in your home. I am inclined to think such verbage does not exist. Case law? Some knucklehead, who I would usually never give any credence to what he says regarding the law, said he learned this in a college law class. Any help here?
    Um, is this the same "knucklehead" that you and I have had a conversation about? Because if it is I'm pretty sure that I took the same con law class as him, with the same professor. And I can tell you that he needs to pay more attention in class, because I don't remember any of his castle doctrine claims being discussed in that class...

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    Regular Member Smurfologist's Avatar
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    I was taught that the following three things must bepresent before you can use deadly force (which should be used if all other means have failed, i.e. locks on doors, verbal commands, etc.) whether you are in your home, or not:

    1) Ability (the perp musthave the capabilityto inflict serious bodily harm to you or someone else)

    2) Opportunity (the perp must have themeans to inflict serious bodily harm to you or someone else)

    3) Intent (the perp must have shown a desire to inflict serious bodily harm to you or someone else)

    If any one of the three are missing, you should not use deadly force. If you do, you will have a tough time justifying why you used it in a court of law.

    Obviously, if someone has broken into your home, you grab your .40 cal, and, youyell "Get out, or I will bust a cap in you're ass,"and, they come toward you orsomeone else, you will be put in a situation to preservelife if the perp doesn't run for their life.

    A Castle Doctrine will help Virginians in a murder case or wrongful death civil suit since (in my opinion) it will take a lot of the guess work out of why the perp broke into your home. Just my two cents.

    2nd Amendment........Use it........Or, lose it!!:X


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    Regular Member SouthernBoy's Avatar
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    Smurfologist wrote:
    I was taught that the following three things must bepresent before you can use deadly force (which should be used if all other means have failed, i.e. locks on doors, verbal commands, etc.) whether you are in your home, or not:

    1) Ability (the perp musthave the capabilityto inflict serious bodily harm to you or someone else)

    2) Opportunity (the perp must have themeans to inflict serious bodily harm to you or someone else)

    3) Intent (the perp must have shown a desire to inflict serious bodily harm to you or someone else)

    If any one of the three are missing, you should not use deadly force. If you do, you will have a tough time justifying why you used it in a court of law.

    Obviously, if someone has broken into your home, you grab your .40 cal, and, youyell "Get out, or I will bust a cap in you're ass,"and, they come toward you orsomeone else, you will be put in a situation to preservelife if the perp doesn't run for their life.

    A Castle Doctrine will help Virginians in a murder case or wrongful death civil suit since (in my opinion) it will take a lot of the guess work out of why the perp broke into your home. Just my two cents.

    2nd Amendment........Use it........Or, lose it!!:X

    I learned that these were the three basic criteria;

    1. Means.
    2. Conveyed intent.
    3. Proximity.


    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.

    America First!

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    I live with the belief that anyone who is only intending on stealing my stuff is not going to break in knowing that I am home. If someone is coming into my home while I am in there, they have other things in mind. Being as I live in a trailer, with me and my wife at one end, and our 1 year old is at the other end, anyone who comes in my house is between me and my child...game over.

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    LEO 229 wrote:
    I would hate to be in court and be asked... "Why didn't you just lock yourself in the back room"" or "Is there a reason why you did not try to just get away?"

    Make sure you have valid reasons to justify why you shot the intruder.


    That brings up another question since people who break in (Home invaders are different) rarely fight when confronted. They either lay down when told or run....usually run.
    How many here have a pair of handcuffs? They are important especially where police response time can be a half hour or better.

    It gets real hard to explain why you shot him fifteen minutes after you told the dispatcher he was in custody!

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