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Thread: HB 854: Castle doctrine

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    Regular Member TFred's Avatar
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    http://leg1.state.va.us/cgi-bin/legp...?101+sum+HB854

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    Castle doctrine. Encodes a version of the "castle doctrine," allowing the use of physical force, including deadly force, against an intruder or attacker, with no duty to retreat and without criminal or civil liability.


    This one goes quite a bit farther than HB 251. Liberals will have a hard time with some of this.

    TFred
    Be it enacted by the General Assembly of Virginia:

    1. That the Code of Virginia is amended by adding a section numbered 18.2-91.1 as follows:

    § 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense.

    A. A lawful occupant of a residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the residence and the occupant reasonably believes deadly force is necessary.

    B. A lawful occupant within a residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection A.

    C. A person not engaged in unlawful activity who is attacked in any place he has a legal right to be outside of his residence may use reasonable and proportionate force, including deadly force, against an intruder or attacker, without a duty to retreat, if the person reasonably believes that he or another is in imminent danger of death or serious bodily harm from which he or another can only be saved by the use of such force against the intruder or attacker.

    D. The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. The defense to a civil action, however, is not available to a person who:
    1. Is attempting to commit, committing, or escaping from the commission of a felony;

    2. Initially provokes the use of force against himself or another with the intent to use such provoked force as an excuse to inflict bodily harm upon the assailant; or

    3. Otherwise initially provokes the use of force against himself or another, unless he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
    E. The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.

    F. Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his duty.

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    Regular Member SouthernBoy's Avatar
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    A. A lawful occupant of a residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the residence and the occupant reasonably believes deadly force is necessary.

    B. A lawful occupant within a residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection A.

    C. A person not engaged in unlawful activity who is attacked in any place he has a legal right to be outside of his residence may use reasonable and proportionate force, including deadly force, against an intruder or attacker, without a duty to retreat, if the person reasonably believes that he or another is in imminent danger of death or serious bodily harm from which he or another can only be saved by the use of such force against the intruder or attacker.


    We already have the above, so none of it is necessary. Have to wonder why it was included to muddy up the bill.

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    Regular Member TFred's Avatar
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    Unless I am mistaken, none of this is currently codified in state law. That gives us at least two reasons for these bills:

    1) Lawmakers do occasionally make efforts to codify case law.

    and

    2) Citizens who do not understand case law look through state law, and seeing no Castle Doctrine, bug their legislators to make one.

    As long as we don't go backwards, I don't think it's bad to codify case law, so everyone can see what it is.

    Well hidden, mostly unknown case law does little to deter crime, but if potential criminals know that victims are aware that there are no legal consequences for fully defending themselves if they decide to do a home invasion, well, they just might think twice about it!

    TFred


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    Regular Member vt357's Avatar
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    TFred wrote:
    E. The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.
    Haha, no booby traps. Didn't expect to see that in the castle doctrine.

    All in all I fully support this bill.

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    Accomplished Advocate user's Avatar
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    This is not the castle doctrine. This would, in fact, restrict the castle doctrine that I maintain is already the law of Virginia, and creates vagueness where the castle doctrine is already clear. If the legislature's purpose were to codify the castle doctrine, it could simply say that it was doing so. But there's no need, since it's already incorporated via Va. Code sections 1-200 and 1-201. Codification of common law rules is only done when, as here, the intent is to restrict the meaning of the common law rule. I'm agin' it.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    I think I'm gonna suggest toMY rep. that the bill simply read "Any citizen that lawfully uses lethal force is immune from civil liability" or somethingof thatnature.

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    Regular Member simmonsjoe's Avatar
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    There is a similar bill already. USER has the same concerns I posted about that bill, except he has tons more credibility.
    illegal ≠ immoral legal ≠ moral
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    Regular Member TFred's Avatar
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    user wrote:
    This is not the castle doctrine. This would, in fact, restrict the castle doctrine that I maintain is already the law of Virginia, and creates vagueness where the castle doctrine is already clear. If the legislature's purpose were to codify the castle doctrine, it could simply say that it was doing so. But there's no need, since it's already incorporated via Va. Code sections 1-200 and 1-201. Codification of common law rules is only done when, as here, the intent is to restrict the meaning of the common law rule. I'm agin' it.
    For those citizens who are smart enough to search LIS, but not smart enough to understand Common Law and how it protects us in this case, is there any sort of a new law you would think OK?

    I guess I'm asking, how could or would you codify into present day Code of Virginia, our current level of protection under Common Law?

    TFred


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    I am, of course, highly flattered, though I am not as confident in my credibility as others may be. Reminds me of what Gomer Pyle said, "Aw, shucks, Andy, y'all are just tryin' to make mah head swell up."

    I have, at TFred's invitation, drafted an alternative. I have no illusions about its passage, because The State (with a capital "S") really doesn't like folks to have "rights". People who acquire power to act as The State want to be able to do whatever they want. And, since the Castle Doctrine is principally aimed at limiting the power of people acting as The State (i.e., the King's Sheriff), it is not likely to be well received in Richmond, and even if passed, would be construed out of existence by the courts. Do I seem cynical? Perhaps a little. Anyway, here's my proposal:

    The Castle Doctrine, as the same was known at Common Law, is declared to be the law of the Commonwealth of Virginia. And, in particular:

    1. The power of the Commonwealth and persons acting under the authority thereof, to conduct searches and seizures does not extend to the full range of powers permissible under the Fourth Amendment to the Constitution of the United States; and, in addition to being "reasonable", no such search or seizure involving entry upon the property of a citizen shall be conducted absent a valid warrant issued by a court of competent authority.

    2. The language of Article I, Section 10, of the Constitution of Virginia, stating that general warrants "ought not to be granted", shall be construed by the Courts of this Commonwealthto mean that no such warrants shall be granted.

    3. Every person within the curtilage of his own home has the right, power, and duty, to protect himself and his family against all intruders, including any person who is not in fact lawfully present, using such force and arms, up to and including the use of deadly force, as he mayin good faith believe necessary under the circumstances.

    4. The term, "home", shall be construed to include any interest in real property, however brief, including a license, as to one lawfully present on such property.
    Notes:

    -- The use of the term, "license", in connection with an interest in realty, means that a guest lawfully on the premises is just as protected, and has just as much right to protect himself, as does the "fee simple owner" of the property.

    -- Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)

    -- Section 10. General warrants of search or seizure prohibited.
    That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

    -- Hudson v. Michigan, 547 U.S. 586, 594 (2006)

    -- "Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769)" Footnote 2, Wilson v. Arkansas, 514 U.S. 927, 937 (1995).

    -- 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!' -- The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Accomplished Advocate peter nap's Avatar
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    user wrote:
    I am, of course, highly flattered, though I am not as confident in my credibility as others may be. Reminds me of what Gomer Pyle said, "Aw, shucks, Andy, y'all are just tryin' to make mah head swell up."

    I have, at TFred's invitation, drafted an alternative. I have no illusions about its passage, because The State (with a capital "S") really doesn't like folks to have "rights". People who acquire power to act as The State want to be able to do whatever they want. And, since the Castle Doctrine is principally aimed at limiting the power of people acting as The State (i.e., the King's Sheriff), it is not likely to be well received in Richmond, and even if passed, would be construed out of existence by the courts. Do I seem cynical? Perhaps a little. Anyway, here's my proposal:

    The Castle Doctrine, as the same was known at Common Law, is declared to be the law of the Commonwealth of Virginia. And, in particular:

    1. The power of the Commonwealth and persons acting under the authority thereof, to conduct searches and seizures does not extend to the full range of powers permissible under the Fourth Amendment to the Constitution of the United States; and, in addition to being "reasonable", no such search or seizure involving entry upon the property of a citizen shall be conducted absent a valid warrant issued by a court of competent authority.

    2. The language of Article I, Section 10, of the Constitution of Virginia, stating that general warrants "ought not to be granted", shall be construed by the Courts of this Commonwealthto mean that no such warrants shall be granted.

    3. Every person within the curtilage of his own home has the right, power, and duty, to protect himself and his family against all intruders, including any person who is not in fact lawfully present, using such force and arms, up to and including the use of deadly force, as he mayin good faith believe necessary under the circumstances.

    4. The term, "home", shall be construed to include any interest in real property, however brief, including a license, as to one lawfully present on such property.
    Notes:

    -- The use of the term, "license", in connection with an interest in realty, means that a guest lawfully on the premises is just as protected, and has just as much right to protect himself, as does the "fee simple owner" of the property.

    -- Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)

    -- Section 10. General warrants of search or seizure prohibited.
    That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

    -- Hudson v. Michigan, 547 U.S. 586, 594 (2006)

    -- "Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769)" Footnote 2, Wilson v. Arkansas, 514 U.S. 927, 937 (1995).

    -- 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!' -- The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'


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    Regular Member TFred's Avatar
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    user wrote:
    I am, of course, highly flattered, though I am not as confident in my credibility as others may be. Reminds me of what Gomer Pyle said, "Aw, shucks, Andy, y'all are just tryin' to make mah head swell up."

    I have, at TFred's invitation, drafted an alternative. I have no illusions about its passage, because The State (with a capital "S") really doesn't like folks to have "rights". People who acquire power to act as The State want to be able to do whatever they want. And, since the Castle Doctrine is principally aimed at limiting the power of people acting as The State (i.e., the King's Sheriff), it is not likely to be well received in Richmond, and even if passed, would be construed out of existence by the courts. Do I seem cynical? Perhaps a little. Anyway, here's my proposal:

    The Castle Doctrine, as the same was known at Common Law, is declared to be the law of the Commonwealth of Virginia. And, in particular:

    1. The power of the Commonwealth and persons acting under the authority thereof, to conduct searches and seizures does not extend to the full range of powers permissible under the Fourth Amendment to the Constitution of the United States; and, in addition to being "reasonable", no such search or seizure involving entry upon the property of a citizen shall be conducted absent a valid warrant issued by a court of competent authority.

    2. The language of Article I, Section 10, of the Constitution of Virginia, stating that general warrants "ought not to be granted", shall be construed by the Courts of this Commonwealthto mean that no such warrants shall be granted.

    3. Every person within the curtilage of his own home has the right, power, and duty, to protect himself and his family against all intruders, including any person who is not in fact lawfully present, using such force and arms, up to and including the use of deadly force, as he mayin good faith believe necessary under the circumstances.

    4. The term, "home", shall be construed to include any interest in real property, however brief, including a license, as to one lawfully present on such property.
    Notes:

    -- The use of the term, "license", in connection with an interest in realty, means that a guest lawfully on the premises is just as protected, and has just as much right to protect himself, as does the "fee simple owner" of the property.

    -- Semayne's Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195-196 (K. B. 1603)

    -- Section 10. General warrants of search or seizure prohibited.
    That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

    -- Hudson v. Michigan, 547 U.S. 586, 594 (2006)

    -- "Semayne's Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769)" Footnote 2, Wilson v. Arkansas, 514 U.S. 927, 937 (1995).

    -- 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!' -- The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'
    Wow, if that is really what the Common Law provides (provided?) for us, then it would seem that the courts have indeed taken a lot away. So much for the legislative process being the source of our governing laws.

    Thanks for taking the time to put that together, maybe we should send it to the sponsor of this bill!

    TFred

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    Regular Member ChinChin's Avatar
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    So based upon User's comments; the only bennifit in this bill is civil immunity from the family of the badguy who gets shot while breaking into a home/dwelling.

    My understanding was that while already present in "common law" a person who shot an intruder inside of his home still stood a chance of being arrested, billed and sent before a judge/jury where the presence of common law would have to be clarified. . .by which point the homeowner has gone through the prison system, had to fork over their own money for defense lawyers, expert witnesses, suffer loss of wages, public humilitation, etc.

    With this bill it could be determined at the home and over the dead badguy that the homeowner was justified and thus avoiding prison and having to shell out major cash and go through the trial process.

    Is my undertsnading in error?
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    Regular Member Thundar's Avatar
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    user wrote:
    The Castle Doctrine, as the same was known at Common Law, is declared to be the law of the Commonwealth of Virginia. And, in particular:

    1. The power of the Commonwealth and persons acting under the authority thereof, to conduct searches and seizures does not extend to the full range of powers permissible under the Fourth Amendment to the Constitution of the United States; and, in addition to being "reasonable", no such search or seizure involving entry upon the property of a citizen shall be conducted absent a valid warrant issued by a court of competent authority.

    2. The language of Article I, Section 10, of the Constitution of Virginia, stating that general warrants "ought not to be granted", shall be construed by the Courts of this Commonwealthto mean that no such warrants shall be granted.

    3. Every person within the curtilage of his own home has the right, power, and duty, to protect himself and his family against all intruders, including any person who is not in fact lawfully present, using such force and arms, up to and including the use of deadly force, as he mayin good faith believe necessary under the circumstances.

    4. The term, "home", shall be construed to include any interest in real property, however brief, including a license, as to one lawfully present on such property.
    -- 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement!' -- The Oxford Dictionary of Quotations (2d ed. 1953), 379. In Hansard, Parliamentary History of England (1813), vol. 15, column 1307, under the proceedings in the Commons on the cider tax in March, 1763, we find: 'Mr. Pitt spoke against this measure, particularly against the dangerous precedent of admitting the officers of excise into private houses. Every man's house was his castle, he said.'
    User,

    I am one of many RV owners on the forum. How do you think we could get domicile like legal protection when my home is parked in Virginia?

    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    Accomplished Advocate user's Avatar
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    RV owners: I'd change the language in paragraph four to read, "any interest in property, real or personal, ..."
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    ChinChin wrote:
    So based upon User's comments; the only bennifit in this bill is civil immunity from the family of the badguy who gets shot while breaking into a home/dwelling.

    My understanding was that while already present in "common law" a person who shot an intruder inside of his home still stood a chance of being arrested, billed and sent before a judge/jury where the presence of common law would have to be clarified. . .by which point the homeowner has gone through the prison system, had to fork over their own money for defense lawyers, expert witnesses, suffer loss of wages, public humilitation, etc.

    With this bill it could be determined at the home and over the dead badguy that the homeowner was justified and thus avoiding prison and having to shell out major cash and go through the trial process.

    Is my undertsnading in error?

    Yes. A statute like this is not a get-out-of-jail-free card. It provides a defense at trial if you are arrested or sued. It's generally better, of course, not to wind up in court at all. But when the police or prosecutors decide not to charge someone with a crime on the basis of some legal defense to prosecution, it's not because they can't but because they know it would be pointless.

    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Isn't Section D still an improvement over the current state of affairs? Oughtn't it make it much harder for the family of a criminal to successfully sue an innocent homeowner victim?

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    user wrote:
    RV owners: I'd change the language in paragraph four to read, "any interest in property, real or personal, ..."
    By the way, that change would protect people who are camping in tents and trailers, as well.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  18. #18
    Regular Member TFred's Avatar
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    I hadn't followed this bill closely, but after another post earlier today mentioned it, I took a look at its progress.

    The bill was severely modified in committee, it's much simpler now. Maybe someone was reading our forum...

    The current version of the bill is below.

    TFred
    Be it enacted by the General Assembly of Virginia:

    1. That the Code of Virginia is amended by adding a section numbered 18.2-91.1 as follows:

    § 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self- defense.

    Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

    Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.







  19. #19
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    I've got a couple of problems with that language. First, the thing may be taken by the courts as having changed the rules that apply at common law. Such as the "stopping a serious felony" rule which provides that any degree of force may be used to stop a serious felony (rape, robbery, arson, burglary, murder). So if someone breaks into your house in the night-time you can presume he's a burglar and shoot him. (During daylight hours, he's a trespasser and possibly a thief, but not a burglar.) What I worry about is that the courts will say this is the new language on the subject, and require an "imminent threat" to a person before one can take action against a burglar.

    Another thing is that one is permitted to use such force as is reasonably necessary under the circumstances to eject a trespasser, short of deadly force unless the trespasser's resistance amounts to a threat of serious bodily injury. (One is not authorized to use deadly force to defend property). I wouldn't want courts to say that an "imminent danger" to an occupant of the dwelling is required before a person can use any force.

    Finally, I wouldn't want to have the courts say that this provision codifies the common law "castle doctrine", which is a bit broader than this section in its protection for folks in their houses.

    So I want to add a new paragraph, that will say,
    "This section shall be taken as a supplement to, and not supplanting, prior law regarding the lawful use of deadly force. It shall not be taken as codifying the common law, nor shall it be taken to restrict the rights of persons lawfully occupying dwellings that already exist under the laws and Constitutions of Virginia and the United States."
    The "imminent danger" language gets me to my second point. The word, "imminent" is a term of art, it's legalese, not English. And in law it doesn't mean "likely to happen" or even, "will definitely happen in five minutes." It means, it's going to happen right now. It's a synonym for "immediately" (i.e., without mediation of any kind, no intervening interval of time between the perception and the action). For the self defense/defense of others doctrine to appy, for example, there has to be an imminent threat of serious bodily injury. So if the threat is to the child sleeping upstairs, and the bad guy is downstairs, that's not "imminent"; so you'd have to wait until he's just ready to strike or abduct the child before you can take any action at all (deadly or not).

    One thing I like about it is how neatly it takes care of the RV/Tent camper problem we talked about earlier. No question in my mind that an RV that is being used as someone's residence, however temporarily, is a "dwelling".
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  20. #20
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    user,

    Wouldn't the word 'dwelling' limit the scope of the law to just places where one could reasonably expect to seek shelter? Thus restricting one's ability to exercise the same rights over the rest of their property that isn't a dwelling?

    Or does the entire property (land + any domicile/house/place of rest/etc) fall under dwelling?

    Thanks!

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    darthmord wrote:
    user,

    Wouldn't the word 'dwelling' limit the scope of the law to just places where one could reasonably expect to seek shelter? Thus restricting one's ability to exercise the same rights over the rest of their property that isn't a dwelling?

    Or does the entire property (land + any domicile/house/place of rest/etc) fall under dwelling?

    Thanks!
    True - another good reason for limiting the effect of the statute. The castle doctrine applies to one's "dwelling place and the curtilage thereof", including the yard and outbuildings in which one might reasonably expect to find humans.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  22. #22
    Regular Member TFred's Avatar
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    user wrote:
    So I want to add a new paragraph, that will say,
    "This section shall be taken as a supplement to, and not supplanting, prior law regarding the lawful use of deadly force. It shall not be taken as codifying the common law, nor shall it be taken to restrict the rights of persons lawfully occupying dwellings that already exist under the laws and Constitutions of Virginia and the United States."
    Well, the house version has been "engrossed" and is on the third and final reading today, which I think means no more amendments, so your best bet is to find a Senator who would be willing to amend it over there, then persuade the House to accept the changes when (if) it gets back to conference.

    Do we have any friendly Senators on the committee that this bill will be assigned to? It's now or never... maybe you should drop a note to PVC.

    TFred

  23. #23
    Regular Member TFred's Avatar
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    HB 854 passed it's third reading 75-24!

    TFred


  24. #24
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    TFred wrote:
    HB 854 passed it's third reading 75-24!

    TFred
    Fightin' Joe Morressey flips out during floor debate. See/hear from WRVA:
    Thetension was evident during one preliminary debate Monday, where Delegates argued the Castle Doctrine. The bill would allow potentially deadly force to be used against someoneentering his or her home.

    Del. Joe Morrissey (D-Henrico) argued the force allowed, compared to the act being committed, was "beyond the pale." He also said all police departments and many Commonwealth's Attorneys opposed the idea. Del. Todd Gilbert challenged Morrissey on that, saying he needed more than just the Democrat's word.
    So Gilbert basically called Joe a liar!

  25. #25
    Regular Member TFred's Avatar
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    Repeater wrote:
    TFred wrote:
    HB 854 passed it's third reading 75-24!

    TFred
    Fightin' Joe Morressey flips out during floor debate. See/hear from WRVA:
    Thetension was evident during one preliminary debate Monday, where Delegates argued the Castle Doctrine. The bill would allow potentially deadly force to be used against someoneentering his or her home.

    Del. Joe Morrissey (D-Henrico) argued the force allowed, compared to the act being committed, was "beyond the pale." He also said all police departments and many Commonwealth's Attorneys opposed the idea. Del. Todd Gilbert challenged Morrissey on that, saying he needed more than just the Democrat's word.
    So Gilbert basically called Joe a liar!
    I believe that today Delegate Griffith also corrected the record saying that the Virginia State Police informed him that they were officially neutral on the bill.

    TFred

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