imported post
Here is something I am having posted to the VCDL site. Hope this helps:
VIRGINIA LAW ON SELF-DEFENSE
Self-defense in Virginia is an affirmative defense, the absence
of which is not an element of murder. In making this 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.
The law of self-defense is the law of necessity, and the
necessity relied upon must not arise out of defendant's own
misconduct. Accordingly, a defendant must reasonably fear
death or serious bodily harm to himself at the hands of his
victim. It is not essential to the right of self-defense that
the danger should in fact exist. If it reasonably appears to
a defendant that the danger exists, he has the right to defend
against it to the same extent, and under the same rules, as
would obtain in case the danger is real. A defendant may
always act upon reasonable appearance of danger, and whether
the danger is reasonably apparent is always to be determined
from the viewpoint of the defendant at the time he acted.
McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, ___ (1978).
The “bare fear” of serious bodily injury, or even death,
however well-grounded, will not justify the taking of human
life. . . . “There must [also] be some overt act indicative of
imminent danger at the time.” (citations omitted). In other
words, a defendant “must wait till some overt act is done[,] .
. . till the danger becomes imminent.” (citation omitted).
In the context of a self-defense plea, “imminent danger” is
defined as “[a]n immediate, real threat to one's safety . . .
.” (citation omitted). “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.”
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, ___ (2001).
USE OF FORCE AGAINST TRESPASSER
The common law in this state has long recognized the right of a
landowner to order a trespasser to leave, and if the trespasser refuses
to go, to employ proper force to expel him, provided no breach of the
peace is committed in the outset. . . . Absent extreme circumstances,
however, such force may not endanger human life or cause great bodily
harm.
Pike v. Commonwealth, 24 Va. App. 373, 375-376, 482 S.E.2d 839, ___
(1997).
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).
VIRGINIA LAW ON DEADLY FORCE TO PROTECT PROPERTY
The threat to use deadly force by brandishing a deadly weapon
has long been considered an assault.
* * *
[T]he owner of land has no right to assault a mere trespasser
with a deadly weapon. (citation omitted). . . . [A] deadly
weapon may not be brandished solely in defense of personal
property.
Commonwealth v. Alexander, 260 Va. 238, 241, 242, 531 S.E.2d 567, ___
(2000).
BRANDISHING
Morris was charged with pointing, holding, or brandishing a
firearm in such a manner as to reasonably induce fear in the
mind of another, pursuant to Code § 18.2-282. . . .
Morris says that although Peter Molina saw the flare gun in
Morris's waistband, he never testified that he was in fear of
the gun. Morris asserts that Molina, solely out of concern for
his wife, insisted that they should leave the area where Morris
was sitting. Indeed, Morris states, Molina indicated in his
testimony that he “may have stayed where he was had his wife
not been there.”
Morris says further that he “never touched the gun in the
presence” of Molina or his wife and there is no evidence that
“he pointed the flare gun.” . . .
“Brandish” means “to exhibit or expose in an ostentatious,
shameless, or aggressive manner.” Webster's Third New
International Dictionary, 268 (1993). When Morris looked at
Ms. Molina, said “[he'd] like that,” and then pulled up his
shirt to uncover the flare gun, he exhibited or exposed the
weapon in a shameless or aggressive manner. And Morris
brandished the weapon in such a manner as to reasonably induce
fear in the mind of Peter Molina. Although Molina may not have
said he was in fear for his own safety, he stated unequivocally
that he feared for the safety of his wife, and that is
sufficient to prove the “induced fear” element of a conviction
for brandishing a firearm under Code § 18.2-282.
Morris v. Commonwealth, 269 Va. 127, 134-135, 607 S.E.2d 110, ___ (2005)