Here is how one state Supreme Court has answered the question:
Fear Alone is not Enough
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 (emphasis added), 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.
For these reasons, we will reverse the judgment of the Court of Appeals and enter final judgment reinstating the convictions. Reversed and final judgment."
Seems they are saying that not only must there be "[t]he requirement of an overt act indicative of imminent danger [which] ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity" but that you are going to have to show that other reasonable persons who found themselves in that same situation would also believe that right then at that moment they had no reason to believe that any lesser injury might befall them.
Add to that the following decision:
Disparity of Force not a Defense by Itself
Andre Barbosa v. Commonwealth Va. App. (2002 Unpublished)
"...Thus, . . . [one] who expects to be attacked should first employ the means in his power to avert the necessity of self-defence, and, until he has done this, his right of self-defence does not arise." Hash v. Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891). "The 'bare fear' of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life."
"...Under these facts, we hold, therefore, that it was not "necessary" for Barbosa to use deadly force to avert the perceived impending "gang beating." The fact that he was surrounded by Serna and his friends and that Serna "bumped into his gun," stating he was not afraid, does not constitute an "overt act indicative of imminent danger." See Vlastaris v. Commonwealth, 164 Va. 647, 651-52, 178 S.E. 775, 776-77 (1935) (holding that accused's fear for his life was without foundation because victim made no overt act at the time of the shooting). "
as opposed to:
No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked
Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished)
"Appellant next contends the trial court erred in refusing to instruct the jury on self-defense. We disagree.
"Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger." Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260 (1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898))."
See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).
which makes it hard to decide what to do, no matter what the situation or circumstances.
Seems that if you are sucessful in defending yourself you are almost certainly going to be judged. The problem seems to be that the rules for judging you may in fact be so hard to abide by that youcould lose even though you were sure you had no other choice but to use lethal force or die.
Which brings me to the best advice I ever got for free: ask cops who they want to hire if they ever get charged with shooting somebody. That lawyer willbe picked because the cops hate him/her fortheir track recordof getting defendants off.
* tried to get rid of underlining - but you see I failed. Ignore underlining.