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Thread: Man convicted of lesser charge for shooting alleged intruder

  1. #1
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    http://www2.timesdispatch.com/rtd/ne...200201/307675/

    A Richmond man pleaded no contest today to a misdemeanor charge for shooting an intruder in his backyard in North Richmond.
    James Chadwick Ross, 38, had been charged with unlawful wounding, a felony, but he entered a plea to the lesser charge of reckless handling of a firearm under an agreement between his attorney and prosecutors.
    Circuit Judge Theodore J. Markow gave Ross a suspended, 12-month jail sentence and ordered him to pay $1,000 and complete a firearm-safety course.
    Expressing conflicting views, Markow said that the prosecution had a good case in arguing that Ross used excessive force, but added, "If I saw this in my backyard, I don't know what I would do."
    Prosecutor Michael E. Hollomon said Ross should have called 911 after he looked outside his home on Seminary Avenue about 3 a.m. on Aug. 5 and saw Emory Heiston near a detached garage.
    Instead, Ross went upstairs, grabbed the shotgun, got his German shepherd and handed his wife a phone, telling her to be ready to call police because there was a man in the backyard, Hollomon said.
    Ross told police he saw Heiston moving a security light so it would not shine on the garage, and holding a dark object that authorities later determined was a crowbar. He thought the man was going to break into his garage, Hollomon said.
    Ross told police he walked onto a back deck, and that after Heiston turned toward him, Ross fired once, wounding Heiston multiple times in his back and on the back of his head with buckshot.
    Defense attorney John Honey said Heiston was shot after he began moving in a direction that might have led him toward Ross. "He had a fear for his safety," Honey said.
    Heiston, 23, fled toward a wooden fence, and as he was jumping over it, Ross fired, a second time, into the fence, Hollomon said. Ross later told police it as a warning shot.
    Heiston fled through an alley, leaving a trail of blood to his apartment less than two blocks away, Hollomon said. He was later treated at VCU Medical Center.
    Virginia law does not allow someone to use deadly force to defend property in such a situation, Hollomon said. "Under the law, his actions were unreasonable," he said.
    But Hollomon noted that juries are unpredictable and said he knew Honey would argue self-defense if the case went to trial. He added that Heiston has been untruthful with police. "We didn't have a very sympathetic victim," he said.
    Heiston faces charges of attempted burglary and possession of burglary tools. He has a jury trial on those charges set for March 11.

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    Sorry wrong cut and paste in the title. The neighborhood is actually northside in the city.

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    Regular Member vt800c's Avatar
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    This shows whyVirginia NEEDS aCastle Law. It SUCKS that I cannot legally defend what I have dedicated a part of my life to aquire. I worked hard for all I have, giving up part of my limited lifetime to have something worthwile. I don't that what I invested time into should be considered so much 'trash' by the authorities.

    If the bad guy wants it and is not willing to work for it honestly (as I have) he is, in effect, stealing that part of my life away from me.

    Maybe we need to make sure all these senators and assemblymen get robbed once this session..then see if their opinion of defending property gets re-aligned.
    I sell ObamaBlades: Single-edged razors you can use to either remove the bumper sticker off your car, or slash your wrists..whichever works best for you.

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    Campaign Veteran skidmark's Avatar
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    vt800c wrote:
    This shows whyVirginia NEEDS aCastle Law. It SUCKS that I cannot legally defend what I have dedicated a part of my life to aquire. I worked hard for all I have, giving up part of my limited lifetime to have something worthwile. I don't that what I invested time into should be considered so much 'trash' by the authorities.

    If the bad guy wants it and is not willing to work for it honestly (as I have) he is, in effect, stealing that part of my life away from me.

    Maybe we need to make sure all these senators and assemblymen get robbed once this session..then see if their opinion of defending property gets re-aligned.
    What you are suggesting is not "castle law" as it is generally understood. "Castle law" allows for the use of force, up to the use of deadly force, to defend yourself, family members and other innocent persons who are in your house or on your property from the threat of death or great bodily injury without having to plead guilty with the extenuating circumstance of excusablity or justifiability.

    If you want tostump for a law similar to the one in Texas that allows for the use of deadly force to prevent theft of property in the night-time, then be clear that is what you are asking for.

    Regarding the OP,Ross got a tremendous break as far as information from the article describes the situation. There is no information about how far apart Ross and Heiston were when Heiston turned, and it is difficult for even folks knowlegable about kinesthetics to understand how a person turning towards you can end up being shot in the back and back of the head. As for the "warning shot" at the fleeing Heiston - [Desi Arnez voice] "I don't theenk so" [/Desi Arnez voice]. What did Ross think - he'd warn Heiston to flee faster?

    I agree that it sucks big time to have to stand there, phone in hand, and watch some (expletive deleted) take stuff you paid for with money you worked for, while the cops are still blocks away and won't arrive until he is well gone. But that's the law, and that's what homeowner's insurance is for.

    stay safe.

    skidmark
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    Regular Member TFred's Avatar
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    I wonder what a jury would do if one were to use deadly force to protect some property that could easily be shown to be irreplaceable.

    I can't think of any interesting scenarios off the top of my head, but while we all have many items that are easily replaceable with adequate funds, there are also many things which no amount of money can possibly replace.

    It would be interesting to see if a good defense attorney could successfully argue the defense of an individual who protected something that could clearly not be replaced.

    TFred


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    TFred wrote:
    I wonder what a jury would do if one were to use deadly force to protect some property that could easily be shown to be irreplaceable.

    I can't think of any interesting scenarios off the top of my head, but while we all have many items that are easily replaceable with adequate funds, there are also many things which no amount of money can possibly replace.

    It would be interesting to see if a good defense attorney could successfully argue the defense of an individual who protected something that could clearly not be replaced.

    TFred
    Sorry there TFred but if I was on the jury I could not side with you. I agree that Grandpas’ railroad watch is irreplaceable but “nowhere in the defendants testimony did he ever state that he felt that here feared for life and limb” so until we get the law changed, “Guilty as Charged”

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    Dragonfly wrote:
    TFred wrote:
    I wonder what a jury would do if one were to use deadly force to protect some property that could easily be shown to be irreplaceable.

    I can't think of any interesting scenarios off the top of my head, but while we all have many items that are easily replaceable with adequate funds, there are also many things which no amount of money can possibly replace.

    It would be interesting to see if a good defense attorney could successfully argue the defense of an individual who protected something that could clearly not be replaced.

    TFred
    Sorry there TFred but if I was on the jury I could not side with you. I agree that Grandpas’ railroad watch is irreplaceable but “nowhere in the defendants testimony did he ever state that he felt that here feared for life and limb” so until we get the law changed, “Guilty as Charged”
    I watched Southpark once in my life. The episode was about one of them that had taken up hunting. Hunting was illegal though and the only legal way to kill something was to protect themselves.

    They got around that legal roadblock by shouting "It's coming right at me" whenever they saw game. That made it OK!

    Interesting concept!



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    So a man running at me with a crowbar in his hand, at night, in my backyard is not a threat to my life, or that of my family?

    It seems that the city chose to settle with reckless handling because they knew full well they would have no chance of winning unlawful wounding in a jury trial.

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    Regular Member Virginiaplanter's Avatar
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    18.2-280. Willfully discharging firearms in public places. A. If any person willfully discharges or causes to be discharged any firearm in any street in a city or town, or in any place of public business or place of public gathering, and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person, he shall be guilty of a Class 1 misdemeanor.

    B. If any person willfully discharges or causes to be discharged any firearm upon the buildings and grounds of any public, private or religious elementary, middle or high school, he shall be guilty of a Class 4 felony, unless he is engaged in a program or curriculum sponsored by or conducted with permission of a public, private or religious school.

    C. If any person willfully discharges or causes to be discharged any firearm upon any public property within 1,000 feet of the property line of any public, private or religious elementary, middle or high school property he shall be guilty of a Class 4 felony, unless he is engaged in lawful hunting.

    D. This section shall not apply to any law-enforcement officer in the performance of his official duties nor to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.

    E. Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.

    ----------

    So it looks like protection of property is lawful under some statutes.


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    essayons wrote:
    So a man running at me with a crowbar in his hand, at night, in my backyard is not a threat to my life, or that of my family?

    It seems that the city chose to settle with reckless handling because they knew full well they would have no chance of winning unlawful wounding in a jury trial.
    How did you get that from the article?
    Ross told police he saw Heiston moving a security light so it would not shine on the garage, and holding a dark object that authorities later determined was a crowbar. He thought the man was going to break into his garage, Hollomon said.
    Ross told police he walked onto a back deck, and that after Heiston turned toward him, Ross fired once, wounding Heiston multiple times in his back and on the back of his head with buckshot.
    Defense attorney John Honey said Heiston was shot after he began moving in a direction that might have led him toward Ross. "He had a fear for his safety," Honey said.
    Heiston, 23, fled toward a wooden fence, and as he was jumping over it, Ross fired, a second time, into the fence, Hollomon said. Ross later told police it as a warning shot.

    Heiston was holding a crowbar. Ross was on his back deck. Heiston turned towards him - no mention of moving closer. Ross fired. It appears Heiston was turning away as Ross was pulling the trigger - that would account for the shot striking Heiston in the back and back of the head.Heiston was trying to get over the back fence and Ross sends round #2 outbound, hitting the fence where Heiston used to be (conjecture by meon location of Heiston and where round #2 hit).

    IF (< that is a big "if" in case anybody missed it) Heiston had been running at Ross there might have been a more legitimate reason to shoot, but as the information is presented it was a clear violation of law.

    Let's stick to facts, or as close to facts as we can get, when we discuss these situations. Jury nullification may be something some folks support, but I understand that none of the jurorsought not say that out loud until after the time has expired for either side to appeal the court's decision. Jury decisions that are based on neither the theory of jury nullification nor the facts of the case are just plain bad justice.

    stay safe.

    skidmark
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    Campaign Veteran skidmark's Avatar
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    Virginiaplanter wrote:
    18.2-280. Willfully discharging firearms in public places. .... D. This section shall not apply to[] any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, oris otherwise specifically authorized by law.

    E. Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.

    ----------

    So it looks like protection of property is lawful under some statutes.

    Other than discharging a firearm to prevent arson or the like can anyone think of another instance when it would be "otherwise justifiable or excusable at law in the protection of his[] property"?

    And whenwould itbe "otherwise specifically authorized by law" to discharge a firearm in protection of property?

    I'm just expressing my ignorance here, and asking to be edumacated.

    stay safe.

    skidmark

    * edited to remove comment about poisoning as not germane to the subject of protection of property.

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    Because stupidity isn't a race, and everybody can win.

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    From the article:

    But Hollomon noted that juries are unpredictable and said he knew Honey would argue self-defense if the case went to trial. He added that Heiston has been untruthful with police. "We didn't have a very sympathetic victim," he said.
    Huh? Untruthful, how? Not sympathetic? Why?


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    skidmark wrote:
    essayons wrote:
    So a man running at me with a crowbar in his hand, at night, in my backyard is not a threat to my life, or that of my family?

    It seems that the city chose to settle with reckless handling because they knew full well they would have no chance of winning unlawful wounding in a jury trial.
    How did you get that from the article?
    Ross told police he saw Heiston moving a security light so it would not shine on the garage, and holding a dark object that authorities later determined was a crowbar. He thought the man was going to break into his garage, Hollomon said.
    Ross told police he walked onto a back deck, and that after Heiston turned toward him, Ross fired once, wounding Heiston multiple times in his back and on the back of his head with buckshot.
    Defense attorney John Honey said Heiston was shot after he began moving in a direction that might have led him toward Ross. "He had a fear for his safety," Honey said.
    Heiston, 23, fled toward a wooden fence, and as he was jumping over it, Ross fired, a second time, into the fence, Hollomon said. Ross later told police it as a warning shot.

    Heiston was holding a crowbar.* Ross was on his back deck.* Heiston turned towards him - no mention of moving closer.* Ross fired.* It appears Heiston was turning away as Ross was pulling the trigger - that would account for the shot striking Heiston in the back and back of the head.**Heiston was trying to get over the back fence and Ross sends round #2 outbound, hitting the fence where Heiston used to be (conjecture by me*on location of Heiston and where round #2 hit).

    IF (< that is a big "if" in case anybody missed it) Heiston had been running at Ross there might have been a more legitimate reason to shoot, but as the information is presented it was a clear violation of law.

    Let's stick to facts, or as close to facts as we can get, when we discuss these situations.* Jury nullification may be something some folks support, but I understand that none of the jurors*ought not say that out loud until after the time has expired for either side to appeal the court's decision.* Jury decisions that are based on neither the theory of jury nullification nor the facts of the case are just plain bad justice.

    stay safe.

    skidmark
    The key piece of missing information is the distance between the shooter and the regretful burglar.

    Someone turns towards me with a deadly weapon within 10 yards, I would justifiably be afraid for my life, and have no problems shooting and defending my actions later as needed.

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    Campaign Veteran skidmark's Avatar
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    Precisely the point that has been beaten half to death. We do not know how far away the perp was, and how much of a barrier (if at all) the back deck created between the two.

    Do you now want to discuss shot #2? Ross said the perp was going over the fence when he took shot #2. How are you going to defend that one?

    And would someone please edumacate me per my prior request?

    stay safe.

    skidmark
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    essayons wrote:
    SNIP Someone turns towards me with a deadly weapon within 10 yards, I would justifiably be afraid for my life, and have no problems shooting and defending my actions later as needed.
    I'm thinking I'm gonna wait for all three elements--ability, opportunity, and jeopardy/intent before I shoot.

    Shooting someoneis far too serious, in my mind, to do otherwise. Neither does the prospect of a career-minded or political prosecutioneven for a totally justified shootingmake me feel all safe and protected by the law. It doesn't do a lot for comfort about my personal finances, either.

    Heck, if it is a contact weapon like a crow-bar or knife, I might just skip back inside my house and lock the door.

    The prospect of being wrongfully tried, much less convicted, and the attendant stress and huge legal bills are more than enough to convince me that shootingsomeone is going tobe literally my last resort.Without even taking into accounttaking another's life. Or, the stories about a teenager with a BB gun, etc., etc.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    What do you say when you come out of your bedroom at 3 am, and see your TV float across the livingroom? Freeze sucker!


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    Citizen wrote:
    essayons wrote:
    SNIP Someone turns towards me with a deadly weapon within 10 yards, I would justifiably be afraid for my life, and have no problems shooting and defending my actions later as needed.
    I'm thinking I'm gonna wait for all three elements--ability, opportunity, and jeopardy/intent before I shoot.

    Shooting someoneis far too serious, in my mind, to do otherwise. Neither does the prospect of a career-minded or political prosecutioneven for a totally justified shootingmake me feel all safe and protected by the law. It doesn't do a lot for comfort about my personal finances, either.

    Heck, if it is a contact weapon like a crow-bar or knife, I might just skip back inside my house and lock the door.

    The prospect of being wrongfully tried, much less convicted, and the attendant stress and huge legal bills are more than enough to convince me that shootingsomeone is going tobe literally my last resort.Without even taking into accounttaking another's life. Or, the stories about a teenager with a BB gun, etc., etc.

    I am really glad to see someone else uses the same "Use of Force" triangle I was taught in the early 80's... :celebrate
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
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    skidmark wrote:
    Do you now want to discuss shot #2?* Ross said the perp was going over the fence when he took shot #2.* How are you going to defend that one?
    I can only imagine it was 'heat of the moment' - in other words, indefensible.

    Warning shot, my ass.

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    Last Knight wrote:
    skidmark wrote:
    Do you now want to discuss shot #2? Ross said the perp was going over the fence when he took shot #2. How are you going to defend that one?
    I can only imagine it was 'heat of the moment' - in other words, indefensible.

    Warning shot, my ass.
    Sometimes, quiet and non lethal and not requiring a Doctor is just more fun...and less expensive.

    I can hear it now:
    "Well Your Honor, I was out for my usual nighttime jog with my crowbar that I use as a weight, and found myself lost in this gentleman's yard.

    With no provocation at all, he shot me in the butt with a Tazer and now I'm traumatized.

    I don't think so


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    peter nap wrote:
    Last Knight wrote:
    skidmark wrote:
    Do you now want to discuss shot #2? Ross said the perp was going over the fence when he took shot #2. How are you going to defend that one?
    I can only imagine it was 'heat of the moment' - in other words, indefensible.

    Warning shot, my ass.
    Sometimes, quiet and non lethal and not requiring a Doctor is just more fun...and less expensive.

    I can hear it now:
    "Well Your Honor, I was out for my usual nighttime jog with my crowbar that I use as a weight, and found myself lost in this gentleman's yard.

    With no provocation at all, he shot me in the butt with a Tazer and now I'm traumatized.

    I don't think so
    There is another old triad: Motive, Opportunity & Means.

    Being in the wrong place at the wrong time with the wrong equipment can be pretty solid circumstantial evidence.

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    C'mon y'all. It really could have been worse.

    For starters, this guy committed the grievous error of firing a "warning shot" at a fleeing perp.

    Then, he gets off with a fine and a firearms safety course (seems to imply he doesn't become a prohibited person. Anybody know for sure?) without even a trial.

    Really, could have been worse. He was smart to take the plea.

    Also, I'm glad this man didn't go to jail for a mistake I totally understand, but the self-defense law in Virginia is good.

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    Virginiaplanter wrote:
    18.2-280. Willfully discharging firearms in public places. A. If any person willfully discharges or causes to be discharged any firearm in any street in a city or town, or in any place of public business or place of public gathering, and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person, he shall be guilty of a Class 1 misdemeanor.

    B. If any person willfully discharges or causes to be discharged any firearm upon the buildings and grounds of any public, private or religious elementary, middle or high school, he shall be guilty of a Class 4 felony, unless he is engaged in a program or curriculum sponsored by or conducted with permission of a public, private or religious school.

    C. If any person willfully discharges or causes to be discharged any firearm upon any public property within 1,000 feet of the property line of any public, private or religious elementary, middle or high school property he shall be guilty of a Class 4 felony, unless he is engaged in lawful hunting.

    D. This section shall not apply to any law-enforcement officer in the performance of his official duties nor to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.

    E. Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.

    ----------

    So it looks like protection of property is lawful under some statutes.
    In my read of the posted law it applies to PUBLIC PLACES, SCHOOLS, SCHOOL ZONES, and STREETS.

    The first part (A) talks about discharging from any street in any city or town, Public places, or place of PUBLIC gathering--- Don't apply as this was the guy's back yard as in PRIVATE PROPERTY. The second part (B)talks about school grounds and the case presented gives not info about a school grounds being involved. The third part (C) talks about the so called 1000' boundry surrounding school property and again the article posted makes no mention about the proximity of a school. (D) gives some exemptions (E) gives the Commonwealth the option of prosecuting under a different statute of their choise.

    So, I don't see how it even applies in this case as originally posted. The guy SHOULD NOT HAVE TAKEN THE PLEA!
    RIGHTS don't exist without RESPONSIBILITY!
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    An incident like this is just goes to show that if you shoot someone breaking into your home, you only say "he turned at me with an object in his hand and I was in great fear of my life and the safety of my family." Then say nothing else. Let your pro gun lawyer do the rest of your talking. The irony is that there are two shooting standards. One for law enforcement and one for average citizens. The police sometimes shoot people under the same stressful circumstances and get away with it only getting a bad boy letter in their personnel file and that's it. The police sometimes get an internal investigation followed by a "pass" and the average non LEO citizen gets charged criminally. For instance in Fairfax County a few years back a police officer accidentally shot an unarmed gambling suspect to death. The police officer had his hand on the trigger as he was getting out of his car. The car door swung open then jerked back slammed against his hand holding his gun. The slam caused him to pull the trigger and discharge a round into the suspect killing him. The officer had to take an extra police gun safety class. I am sure that police officers are smart enough to have their police union representatives and lawyers at their side doing all the talking.

    This court judgment against this poor fellow really stinks.

  24. #24
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    Ross was originally charged with malicious wounding:

    18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

    If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
    Well, what is malicious with trying to protect your own property?

    I suspect Richmond's Commonwealth's Attorney, Michael Herring, is still sore after losing the Baskin-Robbins case. If that's true, then you can expect his office to prosecute most every case in Richmond involving a shooting in defense of property.

  25. #25
    Campaign Veteran skidmark's Avatar
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    Repeater wrote:
    Ross was originally charged with malicious wounding:

    18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

    If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
    Well, what is malicious with trying to protect your own property?

    I suspect Richmond's Commonwealth's Attorney, Michael Herring, is still sore after losing the Baskin-Robbins case. If that's true, then you can expect his office to prosecute most every case in Richmond involving a shooting in defense of property.
    Alright! I read the words in 18.2-280 of the Code of Virginia that say "D. This section shall not apply to any law-enforcement officer in the performance of his official duties nor to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law."

    Now, would someone please explain to me what is considered to be excusable or justifiable protection of property? Case law citations, please? References to Common Law hornbooks?

    stay safe.

    skidmark

    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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