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Your legal rights during a home invasion

ChinChin

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May 17, 2007
Messages
683
Location
Loudoun County, Virginia, USA
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skidmark wrote:
Let's play "semantics" - one of my favorite games.

"Castle Doctrine" - either under English Common Law (not case law) or as a specific piece of legislation. Essentially the "Stand Your Ground" statute, with specific definitions of what is allowed, and anything outside of those are not allowed, or the concept that "A man's home is his castle."

We then go to case law to see how the courts have interpreted either Common Law or the specific statute.

"Civil Immunity" - specific legislation saying you cannot be sued for defending yourself, so long as the limitations and conditions of the legislation were met. Word it one way or word it another way, you get different results. Need to be very careful in how it is worded so you can guide the judges in interpreting it.

I cannot call to mind the legal phrase that says a criminal should not be allowed to profit from his crime. It's the set of laws that keep you from inheriting or collecting on the life insurance after you bump off Mom & Dad. It's also the set of laws that prevents you from reaping any income from publishing a book about your criminal exploits. NY State calls theirs the "Son of Sam Law" after David Berkowitz wrote a book about his killing spree. Anyhow, we need that onntop of civil immunity to protect us from the criminal and his heirs/estate after it has been determined he was a criminal and/or that he died in the commission of acts that you proved were justifiable/excusable.

As ypu can see, just trying to give a quick overview gets confusing and wrapped up in technicalities. Imagine drafting the legislation so a Delegate or Senator can sponsor it and support it through the various committees it will be sent to. I know what I'm trying to say and I get confused. Think what your local GA member will feel like.

We need a brainstorming session. Who else wants to play?

stay safe.

skidmark
The best thing to do would be to take pre-existing castle doctrine laws as they exsist in other states and modify them to work within Virginia. After reviewing many I find myself very fond of the wording of the Florida.

Review it here: http://www.flsenate.gov/data/session/2005/Senate/bills/amendments_Com/pdf/sb0436am191782.pdf

In essence, it establishes without question that if there is an uninvited person inside of your home (robber, rapist, drugged up junkie) the law states that person is inside of your home to kill you; and thus you may defend yourself with deadly force.

It is applicable inside your home, your business, your car, hotel room, tent, etc.

It states you cannot be sued in civil court by the badguy's family or ambulance chasers looking for a payday over the death of their little angel.

the part I really like is where it states" : (1) A person who uses force as described in s.
776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term "criminal prosecution" includes wrongfully arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is clear and convincing evidence that the force that was used was unlawful.


So when it's 2:30AM and I shoot a robber inside of my home, call 911 and have police come out to mop-up. I have a massive adrenalin rush; my head isn't on straight after having to shoot a guy and for my safety and continued protection I shouldn't be chatty with po-po who want answers until I lawyer up. Because I won't answer their questions on the spot, with this version of Castle Doctrine they can't arrest me, they can't detain me or anything. It's giving victim rights back to the real victims.
 

2a4all

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Jul 1, 2008
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Newport News, Virginia, USA
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I also like the FL Castle Doctrine, and I think it might make a good model for VA.

But I noticed what may be an inconsistency.

"776.013

[align=left]
(a) The person against whom the defensive force was used had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle,...[/align]
[align=left]b) The person who uses defensive force knew or had reason to believe that an unlawful or forcible entry or unlawful or forcible act had occurred."[/align]
[align=left]Part B seems to cover the case where a burglar had stolen your (or a family member's)wallet and keys, and used them to effect an unlawful entry, but part A seems to require that entry be both forcible and unlawful. (The theft of the wallet and keys doesn't have to be forceful. They could have been taken because you were careless, e.g. you left themon the bar while you went to the restroom.) If you shoot the guy who used your key, where does that leave you?[/align]
 

ChinChin

Regular Member
Joined
May 17, 2007
Messages
683
Location
Loudoun County, Virginia, USA
imported post

2a4all wrote:
I also like the FL Castle Doctrine, and I think it might make a good model for VA.

But I noticed what may be an inconsistency.

"776.013

[align=left](a) The person against whom the defensive force was used had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle,...[/align]
[align=left]b) The person who uses defensive force knew or had reason to believe that an unlawful or forcible entry or unlawful or forcible act had occurred."[/align]
[align=left]Part B seems to cover the case where a burglar had stolen your (or a family member's)wallet and keys, and used them to effect an unlawful entry, but part A seems to require that entry be both forcible and unlawful. (The theft of the wallet and keys doesn't have to be forceful. They could have been taken because you were careless, e.g. you left themon the bar while you went to the restroom.) If you shoot the guy who used your key, where does that leave you?[/align]
As a template we could request any abnormalities such as what you discovered would be stricken and crafted to avoid such conflicting situations.
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
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1. I don't know what's meant by the phrase, "home invasion" - is that a case of breaking and entering, or is it burglary? The difference is the time of day - if it's after dark, it's burglary. Burglary is one of the five traditional "serious felonies" (rape, robbery, murder, burglary, and arson). Deadly force is lawful to stop a burglary, but not to stop a breaking and entering. An intruder who comes in during the daytime is essentially a trespasser, whom one may not shoot merely to protect property (normal rules of self defense / defense of others applies, of course). BUT:

2. I take the position that the Castle Doctrine is already good law in the Commonwealth. The recent Supreme Court decision that said that it is not because no statute has been passed was misguided by bad lawyering, in my opinion. There are Virginia Supreme Court decisions stating that the Castle Doctrine does apply. By statute, the Common Law of England as it existed in 1607 (the founding of Jamestown) is the law of Virginia, unless "repugnant" to the general law or Constitution. The last English case that applies on the subject was in 1603.

The point of the Castle Doctrine was specifically to keep law enforcement from breaking in. By saying that one has a right to defend one's home from intrusion by means of deadly force if necessary, it says that one has the same rights that the local lord or the King has in his castle to defend his home from enemies, even if that enemy is the King.

I reckon that if you tried to bust into the Governor's Mansion (they don't call it a "palace", anymore, do they?), the State Police wouldn't hesitate to shoot first and ask questions later. The Castle Doctrine says you have the same right in your home.

Conclusion: I don't think any new statute is necessary in Virginia, it couldn't possibly expand the rights we've already got. And I'd be willing to argue that anyone who is charged with a crime for defending his home had a perfect right to do so under Virginia's Castle Doctrine.

Other wrinkles: "no-knock" warrants are becoming the norm. And this is one of those things where it's pretty easy to be "dead right".
 

TFred

Regular Member
Joined
Oct 13, 2008
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7,750
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Most historic town in, Virginia, USA
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user wrote:
Other wrinkles: "no-knock" warrants are becoming the norm. And this is one of those things where it's pretty easy to be "dead right".
Yep, as I read each of your points, my head kept interrupting with "unless you're Ryan Frederick"... I hate it when it does that...

TFred
 

Wolf_shadow

Activist Member
Joined
Jul 5, 2006
Messages
1,215
Location
Accomac, Virginia, USA
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user wrote:
Conclusion: I don't think any new statute is necessary in Virginia, it couldn't possibly expand the rights we've already got. And I'd be willing to argue that anyone who is charged with a crime for defending his home had a perfect right to do so under Virginia's Castle Doctrine.

Other wrinkles: "no-knock" warrants are becoming the norm. And this is one of those things where it's pretty easy to be "dead right".

Under your interpretation Ryan Frederick should be a free man. Where is the line drawn?

:banghead:
 
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