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Thread: Getting confused here... (Castle question)

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    Regular Member Cmdr_Haggis's Avatar
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    Question Getting confused here... (Castle question)

    Hey there folks,

    I'm getting really confused here reading through court documents. In trying to understand the legalities of self-defense here in Virginia, I'm getting really lost in the pile.

    I know that we cannot defend property with lethal force (Montgomery v. Commonwealth). Brandishing a weapon to defend property is also a no-no (Commonwealth v. Alexander).

    My question though is about defending oneself on one's property, in the home especially.

    I have to propose a hypothetical case, and I can hear the groaning, "oh, no, not another one." I tried to search the forum for the answer but the results came back with too many hits that were not relevant.


    You are in your own home. It is nighttime. All doors and windows are locked. You, your spouse, and kids are all upstairs for bed. Some time later, you hear glass shattering. You arm yourself with your firearm of choice. You huddle your family in the master bedroom. Your spouse calls 9-1-1 while you stand ready, crouched in the doorway. You see an unknown and unwelcome stranger ascending your staircase. You order the intruder to leave immediately. Intruder continues up towards you. You fire, intruder collapses and dies.


    Had the intruder been visibly armed, I doubt anyone would question why you shot and killed the intruder. In our hypothetical, let's say that the police determine that the intruder was unarmed but you did not know this at the time of the shooting.

    In Cook v. Commonwealth, I see that we "may use only such force as appears to him reasonably necessary to repel the attack". Further, we can see in Commonwealth v. Sands that fear alone is not enough to excuse homicide; there must be an imminent real threat.

    There is where my confusion lies. Would shooting the intruder be excessive force, per Cook? We identified an immediate real threat to our life and the lives of our family since we had no idea what this intruder's intentions were, so this should be an excusable homicide.

    Could someone help point me in the direction of some case law that either would either a) support the use of deadly force in this situation, or b) not support it. Lots of Google searching has brought up lots of links to Castle Doctrine in other states, but that hardly helps here.

    Thanks! Obviously, IANAL!

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    Accomplished Advocate user's Avatar
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    Please see my notes on the castle doctrine on my website, the link to the pdf is below the picture of the mailbox. Since the castle doctrine has never been held to be repugnant to the Constitution or general law of Virginia, I assert that it's still good law. I guarantee that the courts won't like it, though, because its main purpose is to outlaw "no-knock" warrants.

    Stopping a serious felony in progress is excusable. Burglary is one of the serious felonies (the others are rape, robbery, murder, and arson). This collection has been identified as such because of the implicit threat to human life involved in each of these crimes.
    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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    Regular Member Cmdr_Haggis's Avatar
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    Quote Originally Posted by user View Post
    Please see my notes on the castle doctrine on my website, the link to the pdf is below the picture of the mailbox. Since the castle doctrine has never been held to be repugnant to the Constitution or general law of Virginia, I assert that it's still good law. I guarantee that the courts won't like it, though, because its main purpose is to outlaw "no-knock" warrants.

    Stopping a serious felony in progress is excusable. Burglary is one of the serious felonies (the others are rape, robbery, murder, and arson). This collection has been identified as such because of the implicit threat to human life involved in each of these crimes.

    Thanks, User! Found the page and going over it now. It's a long read, so it'll take a while.

    So am I correct in thinking that the debate in GA for Castle Doctrine would be to make it clear we have this right? If I understand my reading so far, Castle Doctrine exists in Virginia insofar as it's not been challenged to be otherwise.

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    Accomplished Advocate user's Avatar
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    Yes, but... you still don't have the right to defend "mere property" with deadly force; you have the right to defend your home (and the curtilage thereof) from invasion, using such force as may be reasonably necessary.
    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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    Regular Member scouser's Avatar
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    It's my understanding that the fact it happened at night makes it a reasonable defence of your family. At night the dwelling can be expected to be occupied so anyone intruding can have a reasonable expectation of meeting one of the people occupying the dwelling. The occupiers can have a reasonable fear for their safety because this intruder has broken into the dwelling at a time when there is likely to be someone there, thus showing a lack of regard for the people in there at the time. During the day time an intruder can expect the people who live in the dwelling to be out at work, school, etc so would not have the same expectation of being disturbed.

    Key words in the above "my understanding". If I'm wrong I'm willing to listen and stand corrected.

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    Accomplished Advocate user's Avatar
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    Burglary distinguished

    The common law definition of burglary is, "breaking and entering the dwelling place of another in the night-time, with the intention to commit a felony." Statutory definitions have broadened the scope to businesses and day-time intrusions. As far as I know there has never been any case in Virginia that discussed shooting a person guilty of statutory burglary, but if someone is in your house in the night-time, then felonious intent may be presumed, and you'd be stopping a serious felony in progress by shooting a burglar.
    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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    Regular Member nemo's Avatar
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    Quote Originally Posted by user View Post
    Please see my notes on the castle doctrine on my website, the link to the pdf is below the picture of the mailbox. Since the castle doctrine has never been held to be repugnant to the Constitution or general law of Virginia, I assert that it's still good law. I guarantee that the courts won't like it, though, because its main purpose is to outlaw "no-knock" warrants.
    Stopping a serious felony in progress is excusable. Burglary is one of the serious felonies (the others are rape, robbery, murder, and arson). This collection has been identified as such because of the implicit threat to human life involved in each of these crimes.
    User,
    slight change of topic, but you held a class or two, earlier this year. Do you plan to hold more?
    Inquiring minds....

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    Accomplished Advocate user's Avatar
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    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    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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    Regular Member nemo's Avatar
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    Quote Originally Posted by user View Post
    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    I would bet that the class of six was at the place below Winchester. If I had been able to attend as planned, it would have been seven (if that makes you feel any better!), but my boss had other plans for me, at the last minute. Being in Winchester, I would not mind Fredericksburg, but would not likely go to Virginia Beach.

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    Regular Member Cmdr_Haggis's Avatar
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    Quote Originally Posted by user View Post
    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    If there is one held in NoVA or down to Fredricksburg, I will do my best to attend.

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    Quote Originally Posted by user View Post
    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    I would most definitely try to attend a class if you held one in Fredericksburg, or especially if it was on a Saturday!

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    Regular Member mk4's Avatar
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    Quote Originally Posted by user View Post
    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    I'd also make every effort to attend a session in Fredericksburg. Weekend would be best.

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    Regular Member Bubba Ron's Avatar
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    2 for VB

    Quote Originally Posted by user View Post
    The simple answer is, "yes". The more complicated question is where and when? I've been thinking for some time that Fredericksburg and Virginia Beach would be good places. One problem is that for some of these things I get about 120 folks to show up, and at one, I had 6. I need a better way to keep track of that stuff and to arrange for pre-enrollment.
    We would be very interested in attending any in the Virginia Beach/Tidewater area !!!

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    Founder's Club Member thebigsd's Avatar
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    +1 for NOVA or Fredericksburg
    "When seconds count between living or dying, the police are only minutes away."

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    Founder's Club Member Skeptic's Avatar
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    With that arsonist in Richmond fan , got me to wondering about the law there as well.

    Briefly, there have been some gasoline fires set , one place was set alight twice. The perp is setting fire to the doors too to make it tougher for people to get out.

    I would hate to think that if I saw a someone on my front porch trying to set it on fire I would have to wait for him to either A) enter the house or B) actually start a fire.

    Oh well probably won't happen so I will try not to lose sleep over it, but still would feel better if we had a law more like Texas, on that count anyhow

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    Regular Member 45acpForMe's Avatar
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    Quote Originally Posted by user View Post
    Please see my notes on the castle doctrine on my website, the link to the pdf is below the picture of the mailbox. Since the castle doctrine has never been held to be repugnant to the Constitution or general law of Virginia, I assert that it's still good law. I guarantee that the courts won't like it, though, because its main purpose is to outlaw "no-knock" warrants.

    Stopping a serious felony in progress is excusable. Burglary is one of the serious felonies (the others are rape, robbery, murder, and arson). This collection has been identified as such because of the implicit threat to human life involved in each of these crimes.
    Quote Originally Posted by Skeptic View Post
    With that arsonist in Richmond fan , got me to wondering about the law there as well.

    Briefly, there have been some gasoline fires set , one place was set alight twice. The perp is setting fire to the doors too to make it tougher for people to get out.

    I would hate to think that if I saw a someone on my front porch trying to set it on fire I would have to wait for him to either A) enter the house or B) actually start a fire.

    Oh well probably won't happen so I will try not to lose sleep over it, but still would feel better if we had a law more like Texas, on that count anyhow
    I don't know if it is considered arson until after he lit the match but arson is one of the serious felonies that you are allowed to defend yourself with deadly force.

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    Regular Member Badger Johnson's Avatar
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    "User" has great info. One thing to add. If you use your firearm, just be aware that the outcome CAN depend on what you say to the police.

    1. Say nothing, (see don't talk to police) outside of what you are REQURED to say;
    2. Be careful what you say to 911 - might even be good to research a script (Fear for my life, blah-blah);
    3. Be aware of what you should NOT say: 'that mofo had it coming...blah-blah';
    4. Get some insurance covering counter suits, wrongful death, all that stuff. It's a cheap rider to most homeowner's insurance plans, AFAIK;
    5. Have a lawyer of some kind who knows you that you can call. If he/she can't handle an emergency, have a referral.

    Among other things, pre-preparation like the above can be a big help so you don't have to extemporize at the scene and screw up.

    $.02
    A gun in a holster is better than one drawn and dispensing bullets. Concealed forces the latter. - ixtow

    Hi, I'm hypercritical. But I mean no harm, I just like to try to look deeply at life

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    Regular Member mk4's Avatar
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    ^^^
    ProShooter gives a great rundown on interaction and communication with LE, after a defensive shooting, in his "Intro to Concealed Carry in VA" class. By far the most notes I took were for that section.
    Last edited by mk4; 09-28-2011 at 02:00 PM.

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