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Duty to Retreat?

Citizen

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SouthernBoy wrote:
There is no duty to retreat law in Virginia. And it matters not whether you are home, in a store, a parking lot, or talking a walk somewhere. As long as you have a legal right to be where you are, you may use whatever force is necessary to defend yourself or someone else.

The exception to this is you must not be party to the encounter/altercation and its escalation. Then you must retreat while informing your antagonist that you do not want to (fight or use force), until you can no longer do this safely.

Virginia is a "stand your ground" state and you need not be in fear of death, only serious bodily harm before you may use deadly force.
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
Cites, please.
 

Hawkflyer

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So Southern boy - Do you have an opinion on this topic
006-%5BLaughing%5D-%5BEmoticonKing.com%5D.gif
 

SouthernBoy

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Citizen wrote:
SouthernBoy wrote:
There is no duty to retreat law in Virginia. And it matters not whether you are home, in a store, a parking lot, or talking a walk somewhere. As long as you have a legal right to be where you are, you may use whatever force is necessary to defend yourself or someone else.

The exception to this is you must not be party to the encounter/altercation and its escalation. Then you must retreat while informing your antagonist that you do not want to (fight or use force), until you can no longer do this safely.

Virginia is a "stand your ground" state and you need not be in fear of death, only serious bodily harm before you may use deadly force.
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
Cites, please.
Some Virginia case law I have read (parts of);

o Bailey v Commonwealth, 1958
o Dodson v Commonwealth, 1933
o Bell v Commonwealth, 1986
o Foote v Commonwealth, 1990

The Virginia Gun Owner's Guide is a good and handy source for a compilation of related material.

And a lecture I attended last July on the use of deadly force.
 

taurusfan

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I agree with the counter guy at the Armory...you have a duty to retreat in Virginia or so I thought.

Always do what you need to do.

Anyway, the a'holes at the Brady Campaign have on their website the following info on state laws:

For TEXAS:

Shoot First
Is deadly force allowed to be a first resort in public? Yes Texas - The state does allow the use of deadly force as a first resort in public. This dangerous law permits the average citizen to bypass our entire justice system by permitting him or her to assume the role of police officer, prosecutor, judge, and executioner.

For Virginia:

Shoot First
Is deadly force allowed to be a first resort in public? No Virginia - The state does not allow the use of deadly force as a first resort in public

So then...what is your "first resort?"
 

SouthernBoy

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glockfan wrote:
I agree with the counter guy at the Armory...you have a duty to retreat in Virginia or so I thought.

Always do what you need to do.

Anyway, the a'holes at the Brady Campaign have on their website the following info on state laws:

For TEXAS:

Shoot First
Is deadly force allowed to be a first resort in public? Yes Texas - The state does allow the use of deadly force as a first resort in public. This dangerous law permits the average citizen to bypass our entire justice system by permitting him or her to assume the role of police officer, prosecutor, judge, and executioner.

For Virginia:

Shoot First
Is deadly force allowed to be a first resort in public? No Virginia - The state does not allow the use of deadly force as a first resort in public

So then...what is your "first resort?"
Well as has been shown, there is no duty to retreat law in Virginia provided you meet the stated criteria.

As for the Brady Bunch, they would be the last ones to listen to for such information. And I would bet there's no such thing as a "first resort" concept. If you are in imminent danger of serious bodily harm, what do they want you to do? Negotiate Christmas card prices before you open fire?
 

buster81

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45acpForMe wrote:
1) having a cell phone in the bedroom is a must. My alarm system grabs the phone line and dials ADT if there is an entry so I won't be able to call 911 from my landline.

Just a tidbit about cell phones for those interested. Any old cell phone will dial 911. It does not have to have service, just a charged battery.I'm not sure it this applies in all States, but it does in Virginia.

I found this out by letting my nephew play with an old cell phone. The next thing I know, I hear 911 on the other end of the line. I explained to the young lady that they were called mistakenly.

I've since started to keep a charged up, old cell phone in the remote areas of the house where I might be stranded without any means of communication.

http://en.wikipedia.org/wiki/9-1-1#cite_note-28
 

skidmark

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SouthernBoy wrote:
Citizen wrote:
SouthernBoy wrote:
There is no duty to retreat law in Virginia. And it matters not whether you are home, in a store, a parking lot, or talking a walk somewhere. As long as you have a legal right to be where you are, you may use whatever force is necessary to defend yourself or someone else.

The exception to this is you must not be party to the encounter/altercation and its escalation. Then you must retreat while informing your antagonist that you do not want to (fight or use force), until you can no longer do this safely.

Virginia is a "stand your ground" state and you need not be in fear of death, only serious bodily harm before you may use deadly force.
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
Cites, please.
Some Virginia case law I have read (parts of);

o Bailey v Commonwealth, 1958
o Dodson v Commonwealth, 1933
o Bell v Commonwealth, 1986
o Foote v Commonwealth, 1990

The Virginia Gun Owner's Guide is a good and handy source for a compilation of related material.

And a lecture I attended last July on the use of deadly force.

From my favorite search source www.virginia1774.org :





[font=Arial,Helvetica][size=+2]No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked[/size][/font]

[size=+1]Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished) [/size]

[size=+1]"Appellant next contends the trial court erred in refusing to instruct the jury on self-defense. We disagree.[/size]
[size=+1]"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))."[/size]

[size=+1]See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).[/size]


[align=center]No Duty to Retreat in Your Home/Curtilage[/align]
[align=left][/align]
[align=left]Fortune v. Commonwealth, 133 Va. 669, 112 S.E.2d 861 (1922).[/align]



"One, in his own curtilage, who is free from fault in bringing on the combat, when attacked by another, has the same right of conduct, without any retreat (i. e. to stand at bay and resist as fault), even to the taking of life, that one has when within his own home. See note to 5 Am. & Eng. Anno. Cas. 999 and cases cited, among them Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086, approved in Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051. What force one, on his own premises, may use to eject another therefrom, short of endangering human life or of doing great bodily harm, was the subject of consideration in Montgomery's Case, 98 Va. 840, 842-3, 36 S.E. 371; Montgomery v. Commonwealth, 99 Va. 833, 835-6, 37 S.E. 841. But in no case, even within one's own home, or curtilage, is a person wholly justified in taking the life of another, who has entered the home or curtilage peaceably on an implied license, merely to punish or subdue him or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony.

As said in 1 Bish. New Cr. Law (8th Ed.), sections 857, 858: "* * the general rule is that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the --

"Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like - cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, 'a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life' * *."

But the same learned work continues, in section 858, as follows:

" 1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *."

" 2. Putting out of the Castle. — If a man enters another's dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.

* * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling-house, will constitute felonious homicide."

There is no evidence in the case in judgment tending to show that the deceased entered the premises of the accused by force. He was there, and was greeted in a manner which indicated that he was there by permission of the accused, before the affray began. His subsequent conduct, granting that it was misconduct, did not justify the killing of him, unless that conduct was such as to justify it on the part of the accused under the settled doctrine applicable to the killing of an assailant by one in defence of his own person.

Therefore, none of the instructions in the case should have been predicated upon the existence or non-existence of the circumstance of the ordering of the deceased off the premises, since that is an immaterial circumstance so far as the instant case is concerned and could serve no purpose but to mislead the jury, unless they were more fully instructed on that subject than they were."


Dodson v. Commonwealth, [size=+1]159 Va. 976, 979, 167 S.E. 260, 260 (1933).[/size]


[size=+1]"The only case in which the law does not require the party to retreat at all, or under any circumstances, is when he' is assaulted in his own house; there he need not fly as far as he can; for he has the protection of his house to excuse him from flying; as that would be to give up by his flight the possession of his house to his adversary. But in this as in other cases, the assault must be of such a character as to expose him to imminent danger.[/size][size=+1][/size] "
[size=+1]See Also : Beard v. United States 158 U.S. 550 (1896).[/size]



Hope this helps resolve the difference between "what I thought the law was" and "what I wish the law was" and the worst offender of all, "what the guy behind the counter told me."

stay safe.

skidmark
 

SouthernBoy

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skidmark wrote:
SouthernBoy wrote:
Citizen wrote:
SouthernBoy wrote:
There is no duty to retreat law in Virginia. And it matters not whether you are home, in a store, a parking lot, or talking a walk somewhere. As long as you have a legal right to be where you are, you may use whatever force is necessary to defend yourself or someone else.

The exception to this is you must not be party to the encounter/altercation and its escalation. Then you must retreat while informing your antagonist that you do not want to (fight or use force), until you can no longer do this safely.

Virginia is a "stand your ground" state and you need not be in fear of death, only serious bodily harm before you may use deadly force.
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
Cites, please.
Some Virginia case law I have read (parts of);

o Bailey v Commonwealth, 1958
o Dodson v Commonwealth, 1933
o Bell v Commonwealth, 1986
o Foote v Commonwealth, 1990

The Virginia Gun Owner's Guide is a good and handy source for a compilation of related material.

And a lecture I attended last July on the use of deadly force.

From my favorite search source http://www.virginia1774.org :





[font="Arial,Helvetica"][size="+2"]No Duty to Retreat When Doing a Lawful Act and Suddenly Attacked[/size][/font]

[size="+1"]Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished) [/size]
[size="+1"]"Appellant next contends the trial court erred in refusing to instruct the jury on self-defense. We disagree.[/size]
[size="+1"]"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))."[/size]

[size="+1"]See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).[/size]


[align=center]No Duty to Retreat in Your Home/Curtilage[/align]
[align=left][/align]
[align=left]Fortune v. Commonwealth, 133 Va. 669, 112 S.E.2d 861 (1922).[/align]

"One, in his own curtilage, who is free from fault in bringing on the combat, when attacked by another, has the same right of conduct, without any retreat (i. e. to stand at bay and resist as fault), even to the taking of life, that one has when within his own home. See note to 5 Am. & Eng. Anno. Cas. 999 and cases cited, among them Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086, approved in Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051. What force one, on his own premises, may use to eject another therefrom, short of endangering human life or of doing great bodily harm, was the subject of consideration in Montgomery's Case, 98 Va. 840, 842-3, 36 S.E. 371; Montgomery v. Commonwealth, 99 Va. 833, 835-6, 37 S.E. 841. But in no case, even within one's own home, or curtilage, is a person wholly justified in taking the life of another, who has entered the home or curtilage peaceably on an implied license, merely to punish or subdue him or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony.

As said in 1 Bish. New Cr. Law (8th Ed.), sections 857, 858: "* * the general rule is that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the --

"Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like - cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, 'a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life' * *."

But the same learned work continues, in section 858, as follows:

" 1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *."

" 2. Putting out of the Castle. — If a man enters another's dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.

* * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling-house, will constitute felonious homicide."

There is no evidence in the case in judgment tending to show that the deceased entered the premises of the accused by force. He was there, and was greeted in a manner which indicated that he was there by permission of the accused, before the affray began. His subsequent conduct, granting that it was misconduct, did not justify the killing of him, unless that conduct was such as to justify it on the part of the accused under the settled doctrine applicable to the killing of an assailant by one in defence of his own person.

Therefore, none of the instructions in the case should have been predicated upon the existence or non-existence of the circumstance of the ordering of the deceased off the premises, since that is an immaterial circumstance so far as the instant case is concerned and could serve no purpose but to mislead the jury, unless they were more fully instructed on that subject than they were."

Dodson v. Commonwealth, [size="+1"]159 Va. 976, 979, 167 S.E. 260, 260 (1933).[/size]

[size="+1"]"The only case in which the law does not require the party to retreat at all, or under any circumstances, is when he' is assaulted in his own house; there he need not fly as far as he can; for he has the protection of his house to excuse him from flying; as that would be to give up by his flight the possession of his house to his adversary. But in this as in other cases, the assault must be of such a character as to expose him to imminent danger.[/size][size="+1"][/size] "
[size="+1"]See Also : Beard v. United States 158 U.S. 550 (1896).[/size]



Hope this helps resolve the difference between "what I thought the law was" and "what I wish the law was" and the worst offender of all, "what the guy behind the counter told me."

stay safe.

skidmark
Yeah, ain't that one a kick? I think that once behind that counter (badge, etc.), some people like to take on the mantra of officialdom and superior knowledge. And when shown they are in error, they can get very defensive.

As for duty to retreat, common sense would dictate that it would make no sense at all to allow for this in one's home or curtilage, and not out in the common - public places. Such a move can be very dangerous. And there is an idiom from old English law (once again, INAL so I hope I get this right) which states that a thief shall not profit from his torts. Retreating would be a form of profit for a BG.


BTW, I left out the mention of a very important source for my response to Citizen's request for cites. The many postings from "user".
 

user

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Unfortunately, an unpublished opinion has no precedential authority. It may be cited as "persuasive" authority, and since the one SkidMark quoted is a pretty good summary, I'd use it.

Other observations:

1. Virginia is a "true man" state; Southernboy stated the law on that pretty well, particularly with respect to the rule about not making things worse. If you make things worse, you're a party to the fight, and it becomes "mutual combat" rather than "self-defense".

2. I argue that there is a substantive castle doctrine in Virginia. There is a recent Sup. Ct. case that said there is no statute creating a castle doctrine, but that is an example of bad lawyering, I think - someone led the Court astray by inadequate research. There are Sup. Ct. cases in Virginia supporting the castle doctrine, and there is a statute making it the law of Virginia. Take a look at the Code, § 1-200 and § 1-201. The castle doctrine is part of the common law of England, and thus part of the general law of the Commonwealth. It would take an act of the legislature to overturn it. The cut-off date stated in the statute is the law as it was prior to the fourth year of the reign of James I (i.e., as of the founding of Jamestown, 1607). The last big English common law decision on the subject of the castle doctrine was in 1603 or 1604 (depending on where you see it cited). The castle doctrine is good law in Virginia, and the recent decision to the contrary is in error.

3. There are differences in the rules regarding the use of deadly force; it makes a difference whether you're in your own home "or the curtilage thereof", whether it's day time or night time, and what your reason for shooting is. I take about two and a half hours explaining all that in my "lethal force" seminar, hosted by "Virginia Pistol" Jimmy Johnson. The next one's Jan. 23 in Front Royal, and there's a sticky about it with the url to Jimmy's website.

4. Southernboy's comment about the virginia law book published by Bloomfield Press, "The Virginia Gun Owner's Guide", is a good suggestion. It's not a "readin' book", it's a reference. They also publish an equivalent federal law book, but that's mostly not applicable to just plain folks, except for settling arguments about carrying in certain parks or post offices and such. I have a bunch of very recently acquired copies of the Virginia book which I'd be happy to sell by mail, by the way. Most gun shops have a small book rack somewhere, though and that book is everywhere. So pick up a copy, it's well worth the twenty bucks.
 

MSC 45ACP

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user wrote:
Southernboy's comment about the virginia law book published by Bloomfield Press, "The Virginia Gun Owner's Guide", is a good suggestion. It's not a "readin' book", it's a reference. They also publish an equivalent federal law book, but that's mostly not applicable to just plain folks, except for settling arguments about carrying in certain parks or post offices and such. I have a bunch of very recently acquired copies of the Virginia book which I'd be happy to sell by mail, by the way. Most gun shops have a small book rack somewhere, though and that book is everywhere. So pick up a copy, it's well worth the twenty bucks.
I also have both books. Very good books to have around. Mine are well-thumbed and have been borrowed (and returned) by many people (including several LEOs).
 

45acpForMe

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SouthernBoy wrote:
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
SouthernBoy wrote:
....Someone who breaks into your home during the day is a trespasser. If it is night, he's a burglar.

I never understood this part of the law. Why if someone breaks into my house during daylight hours is it less offensive to the legal system than at night? Even if the door happens to be open (unlocked) and they come in, I still plan to defend myself. Many robberies happen during the day while people are away at work.

There wasa recent case in York County where a kid was home sick from school and the mom was out running errands. Two men tried to break in and the kid called 911 and police scared the criminals away before they made entry. If I were the kid I would feel threatened enough to pull my dad's 12 gauge out and use it on them.
 

TFred

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45acpForMe wrote:
SouthernBoy wrote:
There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
SouthernBoy wrote:
....Someone who breaks into your home during the day is a trespasser. If it is night, he's a burglar.
I never understood this part of the law. Why if someone breaks into my house during daylight hours is it less offensive to the legal system than at night? Even if the door happens to be open (unlocked) and they come in, I still plan to defend myself. Many robberies happen during the day while people are away at work.

There wasa recent case in York County where a kid was home sick from school and the mom was out running errands. Two men tried to break in and the kid called 911 and police scared the criminals away before they made entry. If I were the kid I would feel threatened enough to pull my dad's 12 gauge out and use it on them.
User has discussed this on several occasions. It goes back to English Common Law. I suppose you would have to use some imagination to put yourself in that situation, consider what technology you would not have at your disposal at that time and why does that make the night much more dangerous, and therefore worthy of much more severe punishment.

Off the top of my head: 1. No telephone, no neighbors are likely to be awake to come to your aid. You are literally on your own. 2. No lights. During that time, one could not flip a switch to see what was going on, and there were no outside floodlights. Others, I'm sure?

TFred
 

Hawkflyer

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45acpForMe wrote:
SouthernBoy wrote:
 There are five crimes which may warrant the use of deadly force: arson, robbery, burglary, rape, and murder.
SouthernBoy wrote:
.... Someone who breaks into your home during the day is a trespasser. If it is night, he's a burglar.

I never understood this part of the law.  Why if someone breaks into my house during daylight hours is it less offensive to the legal system than at night?   Even if the door happens to be open (unlocked) and they come in, I still plan to defend myself.  Many robberies happen during the day while people are away at work.

There was a recent case in York County where a kid was home sick from school and the mom was out running errands.  Two men tried to break in and the kid called 911 and police scared the criminals away before they made entry.  If I were the kid I would feel threatened enough to pull my dad's 12 gauge out and use it on them.

 

No robberies only happen if someone is "robbed". Burglaries happen if nobody is around.

Regards
 

user

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SouthernBoy's list is correct.

You're right, though, that burglary doesn't require someone to be present, arson's in the same category. Both involve a presumptive threat to human life, though.

The use of deadly force to stop a serious felony in progress is excusable because of the threat to human life. But when you think about it, it's the same as the self defense/defense of innocent third parties defense, because the presumptive victims of the crimes are probably innocent third parties being faced with an imminent threat of serious bodily injury.

I discuss all this at greater length in the "Lethal Force" seminar.
 

user

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I've been thinking of expanding the program to go to different parts of Virginia and to have the thing in more accessible places. I hadn't thought about the timing though.

I don't remember where West Point is, sorry to say, but if there's a place there or near there where lots of people would show up I'd be willing to go.
 

fully_armed_biker

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user wrote:
I've been thinking of expanding the program to go to different parts of Virginia and to have the thing in more accessible places. I hadn't thought about the timing though.

I don't remember where West Point is, sorry to say, but if there's a place there or near there where lots of people would show up I'd be willing to go.

Well, when you come to Hampton Roads to give the seminar, I'll definitely be there! I'm surewe could muster up at least 50 people to attend...probably even more!

BTW - West point is roughly half way between Richmond and Williamsburg.
 
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