Survey on Self-Defense Legislation for 2012 Virgina General Assembly

paramedic70002 · Dec 3, 2011

On another school note, perhaps that law could be further reworded to only apply to standard/routine/usual educational activities. Maybe reference posted school hours. I don't think there is a school out there that doesn't define the hours that a student is expected to be in class. Or as in Texas, only apply in buildings, not on the open property.

Basically, something that would allow permit holders to attend football games, PTA meetings, etc.

I wonder at what point a school should no longer be considered a "sensitive place," whatever that is. I love how SCOTUS can mention sensitive places but not define what "sensitive" means.

TFred · Dec 3, 2011

paramedic70002 said:
On another school note, perhaps that law could be further reworded to only apply to standard/routine/usual educational activities. Maybe reference posted school hours. I don't think there is a school out there that doesn't define the hours that a student is expected to be in class. Or as in Texas, only apply in buildings, not on the open property.

Basically, something that would allow permit holders to attend football games, PTA meetings, etc.

I wonder at what point a school should no longer be considered a "sensitive place," whatever that is. I love how SCOTUS can mention sensitive places but not define what "sensitive" means.

As I am inclined to post from time to time... that is exactly what they did, and on purpose. The anti-gun zealots, including most of the media, have taken that reference (the Heller opinion is what we are referring to, by the way) as a blessing on the legitimacy of sensitive places. In truth, they make the reference only for the purpose of stating that they did not evaluate what they presumed to be a lawful status quo. And they would have been stretching the merits of the case to do so. Most SCOTUS cases are decided on very narrow criteria, based very precisely on the merits of the issue before them. We will have to wait for additional cases to determine a more complete definition of "sensitive".

Having said that.. the justices should have realized the word games that the liberal media would play with their opinion, and stated it more plainly, IMHO, of course. I fully believe that many lower courts are unduly influenced by the angles that the media chooses to apply to what should be more factual sides of a story. (IOW, the media is all over reporting that the SCOTUS declared "sensitive places" constitutional, so many lower courts will come to accept this as fact, even though that is nothing even close to what the opinion actually says.)

TFred

Grapeshot · Dec 3, 2011

The anti gun/freedom groups like the Violence Policy Center need to be caused to "follow (the will of the people) or get out of the way." They lead a numberless, paper army!

A picture(s) is worth a thousand words, so here is a hat full:

http://en.wikipedia.org/wiki/File:Rtc.gif

So who is winning? Freedom is.

B. Reddy · Dec 3, 2011

Nice work on the survey, TFred.

Thanks for putting that together.

grylnsmn · Dec 4, 2011

TFred said:
1. Castle Doctrine is very important to people. As often noted (even on a current thread) Virginia does already have a very good case history for castle doctrine protection. I take these results to mean that either people still don't understand that, or perhaps they really feel better about being able to read it in the Code of Virginia for themselves. Note: The second place bill actually got one more First place vote, but the overall concern represented by the lower position votes pushed this bill to the top.

I think a large part of this is actually the fact that if it is enshrined in statue, it makes it harder for the police/CA to charge you in the first place.

Right now, because it is all based in case law, it can encourage a mentality of "charge them and let the courts sort it out". While you might win at trial due to the case law, you still are looking at significant legal fees to get that far. If there is a explicit presumption of protection enshrined in statute, it makes it harder for the police/CA to justify charging people as a SOP.

While I'm aware of the strong case law in Virginia, I am also aware that statute trumps case law almost every time (constitutional interpretations notwithstanding). That's why I made Castle Doctrine my #2 item, right after state preemption.

TFred · Dec 4, 2011

grylnsmn said:
I think a large part of this is actually the fact that if it is enshrined in statue, it makes it harder for the police/CA to charge you in the first place.

Right now, because it is all based in case law, it can encourage a mentality of "charge them and let the courts sort it out". While you might win at trial due to the case law, you still are looking at significant legal fees to get that far. If there is a explicit presumption of protection enshrined in statute, it makes it harder for the police/CA to justify charging people as a SOP.

While I'm aware of the strong case law in Virginia, I am also aware that statute trumps case law almost every time (constitutional interpretations notwithstanding). That's why I made Castle Doctrine my #2 item, right after state preemption.

Very good point... we have all seen and heard stories where the obviously innocent are punished "anyway" by being forced to run through the very expensive process of being found not guilty. If we can capture Code that meets or exceeds the current protection, I think everyone will be very happy. Except for those LEOs and CAs who use that "punish by trial" method as their own personal billy-club.

I am led to believe that this process is indeed under way and a very high priority for this Session.

TFred

mk4 · Dec 4, 2011

and to add to the castle doctrine thought...
the concept of "no civil tort, if use of deadly force is found to be justified" is a big issue, also. hurts badly to be cleared at or before trial only to be bankrupted with a civil judgement. and even if you win that, wouldn't you have to counter-sue to recover your own legal expenses?

2a4all · Dec 5, 2011

grylnsmn said:
I think a large part of this is actually the fact that if it is enshrined in statue, it makes it harder for the police/CA to charge you in the first place.

Right now, because it is all based in case law, it can encourage a mentality of "charge them and let the courts sort it out". While you might win at trial due to the case law, you still are looking at significant legal fees to get that far. If there is a explicit presumption of protection enshrined in statute, it makes it harder for the police/CA to justify charging people as a SOP.

While I'm aware of the strong case law in Virginia, I am also aware that statute trumps case law almost every time (constitutional interpretations notwithstanding). That's why I made Castle Doctrine my #2 item, right after state preemption.

How would you word a "Castle Doctrine" statute that would preclude someone legitimately defending their home from being charged with a crime, yet not interfere with legitimate criminal charges?

As things currently stand, self defense is an affirmative defense to (some kind) of homicide charge which resulted in the death of a perpetrator of an assault that would/could have caused grevious bodily harm or death to the (intended) victim. If this act occured in the (intended) victim's home, the location in and of itself doesn't automatically demonstrate self defense. Circumstances still must be investigated and evidence examined before such a determination can be made. If the investigation doesn't support a criminal charge, why would one be filed? To do otherwise could be prosecutorial misconduct.

The real benefit to a "Castle Doctrine" law is in the immunity from civil action against the intended victim.

grylnsmn · Dec 5, 2011

2a4all said:
How would you word a "Castle Doctrine" statute that would preclude someone legitimately defending their home from being charged with a crime, yet not interfere with legitimate criminal charges?

The key is to create the statutory presumption that, absent other evidence, a shooting of an intruder in your own home is justified. Such a presumption would make it far harder to prosecute an individual.

2a4all said:
As things currently stand, self defense is an affirmative defense to (some kind) of homicide charge which resulted in the death of a perpetrator of an assault that would/could have caused grevious bodily harm or death to the (intended) victim. If this act occured in the (intended) victim's home, the location in and of itself doesn't automatically demonstrate self defense. Circumstances still must be investigated and evidence examined before such a determination can be made. If the investigation doesn't support a criminal charge, why would one be filed? To do otherwise could be prosecutorial misconduct.

And yet, we all know that such prosecutorial misconduct happens. There are still many parts of the Commonwealth where law enforcement strongly dislikes the idea of an armed populace defending itself.

And even in cases where the prosecutorial misconduct is mostly self-evident (such as in skidmark's case), it still will cost the victim a significant amount of time and money to fight it. Additionally, not everyone winds up with a lawyer as skilled as user, with his clear command of the case law. Having the legal presumption of a justified shooting explicitly in statute makes it easier to defend people who lack the resources to fully research all the relevant case law.

2a4all said:
The real benefit to a "Castle Doctrine" law is in the immunity from civil action against the intended victim.

That is a real benefit, but it isn't the only real benefit. A properly crafted Castle Doctrine law provides equal benefits on both the Civil and Criminal sides of the law.

2a4all · Dec 5, 2011

2a4all said:
How would you word a "Castle Doctrine" statute that would preclude someone legitimately defending their home from being charged with a crime, yet not interfere with legitimate criminal charges?

As things currently stand, self defense is an affirmative defense to (some kind) of homicide charge which resulted in the death of a perpetrator of an assault that would/could have caused grevious bodily harm or death to the (intended) victim. If this act occured in the (intended) victim's home, the location in and of itself doesn't automatically demonstrate self defense. Circumstances still must be investigated and evidence examined before such a determination can be made. If the investigation doesn't support a criminal charge, why would one be filed? To do otherwise could be prosecutorial misconduct.

The real benefit to a "Castle Doctrine" law is in the immunity from civil action against the intended victim.

grylnsmn said:
The key is to create the statutory presumption that, absent other evidence, a shooting of an intruder in your own home is justified. Such a presumption would make it far harder to prosecute an individual.

And yet, we all know that such prosecutorial misconduct happens. There are still many parts of the Commonwealth where law enforcement strongly dislikes the idea of an armed populace defending itself.

And even in cases where the prosecutorial misconduct is mostly self-evident (such as in skidmark's case), it still will cost the victim a significant amount of time and money to fight it. Additionally, not everyone winds up with a lawyer as skilled as user, with his clear command of the case law. Having the legal presumption of a justified shooting explicitly in statute makes it easier to defend people who lack the resources to fully research all the relevant case law.

That is a real benefit, but it isn't the only real benefit. A properly crafted Castle Doctrine law provides equal benefits on both the Civil and Criminal sides of the law.

You still haven't answered the question of how such a law would be worded, i.e. a statement of such a statutory presumption. It would also have to preclude the defender from having to put his 4th amendment rights at risk, i.e. cannot be asked "was this an act of self defense?".

My conversations with other folks leave me with the impression that civil immunity is the missing link.

You said "...absent other evidence...". In order to make that determination, one must look for such evidence (commonly called an investigation). Without it, I don't see charges being filed.

In Skid's case, there were complainants who swore out warrants. If a magistrate believes your complaint supports a criminal act, then s/he has no choice. How the CA handled the case from there is a very different issue.

grylnsmn · Dec 5, 2011

2a4all said:
You still haven't answered the question of how such a law would be worded, i.e. a statement of such a statutory presumption. It would also have to preclude the defender from having to put his 4th amendment rights at risk, i.e. cannot be asked "was this an act of self defense?".

An easy way to see example wordings is to look at other states' Castle Doctrine laws, for example, Texas:

Section 9.32 Texas Penal Code said:
(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Note the part that I put in red. That creates the sort of legal presumption I am talking about.

The key is to make that presumption explicit, to make it harder for law enforcement to claim probable cause for arresting you for protecting yourself in your home (or, as written in the Texas statute, your vehicle or place of business).

If you combine that with a strong civil liability immunity (such as Texas has in section 83.001), and it gives the maximum protection for people to protect themselves in their personal spaces.

Grapeshot · Dec 5, 2011

IMO - a Stand Your Ground law would be an immense step forward. Same conditions as defined above except they apply "anywhere you have legal right to be" and w/o the necessity to retreat.

grylnsmn · Dec 5, 2011

Grapeshot said:
IMO - a Stand Your Ground law would be an immense step forward. Same conditions as defined above except they apply "anywhere you have legal right to be" and w/o the necessity to retreat.

Actually, that's in the Texas law as well, from what I quoted:

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

Overall, the Texas Castle Law (as outlined in Sections 9.31 and 9.32 of the Penal Code, and Section 83.001 of their Civil Code) is a fairly comprehensive law that can be an effective model for Virginia.

mk4 · Dec 6, 2011

just saw this one:
http://leg1.state.va.us/cgi-bin/legp504.exe?121+sum+SB4

SENATE BILL NO. 4
Offered January 11, 2012
Prefiled December 2, 2011
A BILL to amend the Code of Virginia by adding a section numbered 18.2-91.1, relating to self-defense and defense of others.
----------
Patron-- Stuart
----------
Referred to Committee for Courts of Justice
----------

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 (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) 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.

did i miss an earlier post?

Grapeshot · Dec 6, 2011

The part that gives me pause is underlined below:

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

Obviously. it is a two pronged condition. The 2nd one being "and has committed an overt act." That necessitates waiting until after he/she tries to harm you - not good, puts one way behind the curve. IMO, it should be more than sufficient with (ii)" reasonable believes.......is in imminent danger."

The antis will scream, but that will make you judge and jury. My reply will be, "Who else will be there capable of making the decision as to whether or not to protect my life - you? The innocent victims who chose self-defense have been punished too many times; it must stop now.

2a4all · Dec 6, 2011

Grapeshot said:
The part that gives me pause is underlined below:

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

Obviously. it is a two pronged condition. The 2nd one being "and has committed an overt act." That necessitates waiting until after he/she tries to harm you - not good, puts one way behind the curve. IMO, it should be more than sufficient with (ii)" reasonable believes.......is in imminent danger."

The antis will scream, but that will make you judge and jury. My reply will be, "Who else will be there capable of making the decision as to whether or not to protect my life - you? The innocent victims who chose self-defense have been punished too many times; it must stop now.

Actually, I read this a three-pronged requirement.

The belief of imminent danger would likely be foremost in a potential victim's mind, but it's the one that's hardest to prove. The victim would need to articulate something specific that the perp did that caused him/her to feel they were in imminent danger. Because of the "committed an overt act" clause, the victim must reinforce his/her belief. This seems to mitigate any risk to the victim (i.e. the perp just being there) which can currently be satisfied if a burglary is in progress.

This bill is too burdensome to the victim.

2a4all · Dec 6, 2011

grylnsmn said:
An easy way to see example wordings is to look at other states' Castle Doctrine laws, for example, Texas:Note the part that I put in red. That creates the sort of legal presumption I am talking about.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

The key is to make that presumption explicit, to make it harder for law enforcement to claim probable cause for arresting you for protecting yourself in your home (or, as written in the Texas statute, your vehicle or place of business).

If you combine that with a strong civil liability immunity (such as Texas has in section 83.001), and it gives the maximum protection for people to protect themselves in their personal spaces.

All this says is that there are certain situations in which the use of deadly force for self-protection is authorized. It only makes it easier for LE to say "Looks like self defense to me". It doesn't require them to prove it. Given the latitude that LE has in these matters, one could just as easily be charged and burdened with proving that they were in compliance with this law. "Big City" Texas might not see things the same way as "Cow Country" Texas.

Until Texas gains some experience here, I'm not sure we'd want this in Virginia.

grylnsmn · Dec 7, 2011

2a4all said:
All this says is that there are certain situations in which the use of deadly force for self-protection is authorized. It only makes it easier for LE to say "Looks like self defense to me". It doesn't require them to prove it. Given the latitude that LE has in these matters, one could just as easily be charged and burdened with proving that they were in compliance with this law. "Big City" Texas might not see things the same way as "Cow Country" Texas.

Until Texas gains some experience here, I'm not sure we'd want this in Virginia.

You are completely misreading it. It doesn't say that there are certain situations where use of deadly force is authorized. Instead, it sets up the presumption that the use of deadly force was self defense and was reasonable.

What the Texas law does is make it so that law enforcement doesn't have to prove it was self defense. They need to prove that it wasn't. It is a complete shifting of the burden of proof.

Under that section, the presumption, the starting point, is that it is self defense if the person had reason to believe that the intruder/attacker entered unlawfully (i.e. they didn't invite them in) or was trying to remove them unlawfully (i.e. without their permission), or if the attacker was committing "aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery".

In order for it not to be ruled self defense, law enforcement needs to have clear evidence that the above presumption(s) are false. However, the burden is completely on law enforcement for that.

Baked on Grease · Dec 7, 2011

Grapeshot said:
The part that gives me pause is underlined below:

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

Obviously. it is a two pronged condition. The 2nd one being "and has committed an overt act." That necessitates waiting until after he/she tries to harm you - not good, puts one way behind the curve. IMO, it should be more than sufficient with (ii)" reasonable believes.......is in imminent danger."

The antis will scream, but that will make you judge and jury. My reply will be, "Who else will be there capable of making the decision as to whether or not to protect my life - you? The innocent victims who chose self-defense have been punished too many times; it must stop now.

Once the perp is in your home, and has anything in their hands, and makes a movement or threatening words, it would seem to me to fulfill the requirements of that wording.

I think it was worded this way to keep a certain scenario from being automatically considered reasonable under law, which would be you hear a noise, investigate and find an "intruder" and shoot without "knowing" their intentions for being there... And find out it's your son that sneaked out and came back drunk and that's why the "intruder" didn't respond well to your verbal commands...

I'd have to ask the author of the bill for the intention of the wording.

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Baked on Grease · Dec 7, 2011

Though I do agree, word to the affect of reasonably believes etc would be better.

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