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Spoke to a Lawyer....

Toad

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, Virginia, USA
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We are out 'shopping' for a lawyer just incase we need to call one. He has taken several SD with firearm related cases and seems well versed in others. He did say that since VA doesn't have a castle doctrine law on the books that you better be damn sure that you have no where else to go before drawing. He stated that a SD shooting can be very difficult to defend if you are not cornered.
So it got me thinking, just what would constitute 'cornered'?
Has anyone else heard something similar from another lawyer (not the arm chair type)?
 

Armed

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Richmond, Virginia, USA
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When I first got my CHP, I took a class at the advice of a friend. The guy giving the class was a retired cop, and he pretty much said the same thing. The class was heavy on the legal section (which is why my friend advised I take it...), and that really got me to thinking as well.

A few months ago I decided to take the legal portion of a class, just as an update, since laws do change.This time it was given by an attorney, and he reinforced the same concept.

Apparently as itstands now, even if someone breaks into your home in the middle of the night,we still have to be in fear for our lives, and without options before we open fire.

We really do need some sort of 'castle doctrine' legislation here.

Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....
 

Infidel

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Armed wrote:
When I first got my CHP, I took a class at the advice of a friend. The guy giving the class was a retired cop, and he pretty much said the same thing. The class was heavy on the legal section (which is why my friend advised I take it...), and that really got me to thinking as well.

A few months ago I decided to take the legal portion of a class, just as an update, since laws do change.This time it was given by an attorney, and he reinforced the same concept.

Apparently as itstands now, even if someone breaks into your home in the middle of the night,we still have to be in fear for our lives, and without options before we open fire.

We really do need some sort of 'castle doctrine' legislation here.

Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....
That may be the case (legally), however my son is in the next room at the end of my hall, and I'll be damned if turn tail to save the legal defense and leave my son. So I would have every right legally to defend myself and my family.
 

ed

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Armed wrote:
We really do need some sort of 'castle doctrine' legislation here."

ED AGREES

Personally, I think I have every right to assume that if somebody is breaking into my house, he ain't there to sell me girl-scout cookies....
ED AGREES again but VA law does not (in my opinion). I think it protects a drunken old fart that finds his key wont work in his (your door) so he pops a window to break in to what he thinks was his own home. I don't think at this point I would shoot. I would call 911 and keep the phone in one hand with Kimber trained on the guy in the other... I would call out everything I am doing to be captured on the 911 tape and say things like.. "STOP! You are in the wrong house.. Don't hurt me! I have a gun! If you come any closer I will shoot you! If the guy turns and runs.. you did your job. If the guy comes towards you.. you stop the threat.. Emptying a magazine, reloading and repeating cound get you put in jail too." Be careful. IANAL YMMV.
 

VCDL President

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TFred wrote:
Admittedly, not the best source, but in a pinch: According to http://en.wikipedia.org/wiki/Castle_Doctrine Virginia is one of a very small minority of states without either a Castle Doctrine or a Stand Your Ground statute.

This does seem rather unacceptable. :(

TFred
It's covered in common law and case law in VA. We are a stand your ground state (you can stand your ground anywhere where you can legally be). Only if you are part of the problem must you retreat.
 

TFred

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VCDL President wrote:
TFred wrote:
Admittedly, not the best source, but in a pinch: According to http://en.wikipedia.org/wiki/Castle_Doctrine Virginia is one of a very small minority of states without either a Castle Doctrine or a Stand Your Ground statute.

This does seem rather unacceptable. :(

TFred
It's covered in common law and case law in VA. We are a stand your ground state (you can stand your ground anywhere where you can legally be). Only if you are part of the problem must you retreat.
Ah well, that's better than Wikipedia gives us credit for... someone should update their site! :) There are several states which fall into that same category, not spelled out by statute, but established by case law.

Thank you very much for the correction.

TFred

ETfixThatPeskyComma. Oh how I hate the editor on this forum!
 

VCDL President

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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)
 
G

Gentleman Ranker

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imported post

ed (25 November 2008 Tuesday 01:20) opines:

I think it protects a drunken old fart that finds his key wont work in his (your door) so he pops a window to break in to what he thinks was his own home. I don't think at this point I would shoot.
FWIW, that exact thing actually happened to me once, years ago, in an apartment I had. The drunk wasn't doing a very good job of getting through the window (surprise, surprise), and when challenged said something like "sorry" and just wandered off. He was apparently quite unaware of the .40 pointed at his head for a time.

I called the PD and reported it, making clear that I thought it was a harmless drunk and I just wanted them to keep someone else from lighting him up if he tried other people's windows. They came out and took a report. I didn't mention a word about a gun to them.

Turned out later that the apartment manager knew exactly who it was and who he was visiting. She agreed to have a counseling session with him about it.

I had spent a lot of time just prior to that reading self-defense law of the state I was in, and legally I think I would have been justified in shooting under the circumstances (1 AM, unknown person coming through my window), but I'm glad I didn't.

This is not to say that I think you should let orcs eat your children alive just to be on the safe side or that I wouldn't want a castle law in Virginia. I'm just sayin' ... this actually happened to me and I'm glad I didn't find out how the law was interpreted in that jurisdiction.

regards,

GR

PS: Though that's probably as "tactical" a situation as I've ever been in, all those things one reads about an adrenaline dump, tunnel vision, etc. did seem to happen to me. I'm just glad I had read and practiced enough to stay in control.
 

skidmark

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SouthernBoy wrote:
To Phil;

VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?

I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

stay safe.

skidmark
 

Mudwalker

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Fredericksburg, Virginia, USA
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skidmark wrote:
I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

stay safe.

skidmark

+1

S/F
 

Bulldog1967

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Alexandria, Virginia, United States
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Mudwalker wrote:
skidmark wrote:
I for one am opposed to legislating "Castle Doctrine" or "Stand Your Ground" in Virginia. The common law and case law, IMNSHO (IANAL), serve me better than some law that most likely will have exclusions and restrictions that cannot be debated in trial.

What I would like to see is Civil Immunity - which too many people mistakenly call "castle doctrine". If I am sucessful in my affirmative defense of justifiable or excusable murder, Civil Immunity would prevent the heirs and estate of the BG from suing me for damages such as, but not limited to, unlawful killing, violation of civil rights, loss of consortium, lost future earnings, and/or child/spousal support.

stay safe.

skidmark

+1

S/F
I concur.
 

Mr. Y

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I disagree. This is an affirmative defense. If you fail to prove beyond a reasonable doubt that you were either justified, or excusable (or, remotely possible, the defense of necessity), then you have admitted guilt of at the very minimum manslaughter if the opposing party expires. In other words, in order to even raisethe legal claim of self defense, you MUST admit the relevant facts that will be used by the Commonwealth against you.

The $50,000.00 question is: How much money will you have to expend against the Commonwealth's "bottomless pit of taxpayer money" to prove to a jury beyond a reasonable doubt that you were justified or should be excused?

The price of failure is prison at the very minimum for a substantial portion of the rest of your life.

All it takes is a vindictive commonwealth's attorney, and you will at the least spend the rest of your life in the poor house. That's still better than the big house I guess though.
 

tripledipper

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Hampton Roads, Virginia, USA
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Concur with the "civil immunity" theory which will insulate my beneficiaries from monetary harm. As for whether I will pull the trigger or not, none of us know until the moment of truth. IfI do, the consequences be damned, whatever will be will be.
 

Hawkflyer

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Prince William County, Virginia, USA
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Mr. Y wrote:
I disagree. This is an affirmative defense. If you fail to prove beyond a reasonable doubt that you were either justified, or excusable (or, remotely possible, the defense of necessity), then you have admitted guilt of at the very minimum manslaughter if the opposing party expires. In other words, in order to even raisethe legal claim of self defense, you MUST admit the relevant facts that will be used by the Commonwealth against you.

The $50,000.00 question is: How much money will you have to expend against the Commonwealth's "bottomless pit of taxpayer money" to prove to a jury beyond a reasonable doubt that you were justified or should be excused?

The price of failure is prison at the very minimum for a substantial portion of the rest of your life.

All it takes is a vindictive commonwealth's attorney, and you will at the least spend the rest of your life in the poor house. That's still better than the big house I guess though.

I am afraid I have to go with Skidmark on this one. Mr Y's position assumes that a Castle provision would prevent you from being charged for a defensive shooting. Nothing could be farther from the truth. In a lot of jurisdictions you will be charged and tried no matter what the circumstances of the shooting are. You may successfully defend the criminal charges only to fall prey to the civil suits that Skidmark references.

This is part of why this country needs some sort of Tort reform. It is insane that a person can legally defend himself or his family, be clear of any charges, and then be sued into bankruptcy. The principal of first cause should be applied to any civil action. If a person commits an act that leads to their being lawfully dispatched, then they, and their family should lose the right to sue.



Regards
 

VCDL President

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SouthernBoy wrote:
To Phil;

VCDL member here. Is there any chance that the Virginia legislature will be considering a Castle Doctrine bill this year and even better.. any chance that it might see becoming a law this summer?
Historically we have supported a civil immunity version for fear of screwing up the common law and case law on the criminal part.

Not sure if it is going in this year or not yet.
 

SouthernBoy

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Gentlemen;

Based upon the definitions I have just read regarding civil immunity, that would have been my interpretation of a Castle Law with the addition of immunity from prosecution in the case of a justifiable homocide.

Thanks for the info.
 

sailer

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VCDL President
It's covered in common law and case law in VA.  We are a stand your ground state (you can stand your ground anywhere where you can legally be).  Only if you are part of the problem must you retreat.
It would be an improvement we were covered by an explicit Castle Doctrine; that may deter prosecutions in places like Norfolk.
 
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