Survey on Self-Defense Legislation for 2012 Virgina General Assembly

+1
thanks, very much, for all the thought and effort you've put into this, Dan.

Qualified immunity section revised

Based on comments from Kurt Mueller, I've revised the section on qualified immunity - here's the revised version:
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Qualified Immunity:

8. Notwithstanding any law to the contrary, no person shall be held civilly liable or criminally responsible for any charge, claim, or cause of action with respect to acts authorized hereunder.

9. In any civil or criminal proceeding, it shall be a complete defense and bar to the action that the defendant was, with respect to the charge, complaint, or cause of action alleged, acting in accordance with the provisions of this Article; in such a case, the Court shall order the filing of a bill of particulars upon motion of the defendant. Upon the facts alleged in the bill of particulars, the defendant may assert a plea in bar or motion for summary judgment on the ground of qualified immunity to the charge, complaint, or cause of action alleged. In addition to the extension of qualified immunity to persons acting according to the provisions of this Article, and without regard to any prior ruling on the same issue, a defendant to any charge, complaint, or cause of action may affirmatively defend on the ground that he acted in accordance with the provisions of this Article.

10. Upon the termination of the prosecution of such charge, claim, or cause of action in accordance with the provisions of this Article in a manner not unfavorable to the defendant, the defendant shall be awarded his actual attorneys' fees and costs expended in the defense of such charge, claim, or cause of action. Such defendant shall also have a cause of action against any person instituting such charge, claim, or cause of action for damages resulting from the requirement of such defense, and shall, in a successful prosecution of such proceeding, be awarded his attorneys' fees and costs. This section shall have no effect upon the doctrine of judicial immunity, but shall act as a waiver of sovereign immunity for the limited purposes stated herein.

user said:

Based on comments from Kurt Mueller, I've revised the section on qualified immunity - here's the revised version

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Question and a comment:

Does this change still keep the bill within the realm of protections that are currently provided by existing case law in Virginia? I like the changes, but it seems to me that the bill is much more "sellable" to the middle-of-the-road legislators if we can demonstrate that there are literally no "new" protections being provided.

Appears you have changed the format (by numbering the paragraphs), perhaps it would be good to repost the entire bill in the new format, just for clarity and reference.

Thank you again for this effort... any word on picking up a sponsor?

TFred

Here's the revised text in PDF format - the paragraph numbers were a fluke caused by going from one word processor to another - strikethrough is deleted, double-underlined is added text. I suggest downloading it rather than opening it within a browser for better resolution:

Proposed Castle Doctrine Legislation - original draft

December 28, 2011 Revision

December 30, 2011 Revision

January 5, 2012 Revision

The answer to the question is "sorta". Qualified immunity is a judicial doctrine cooked up to let cops off the hook in civil actions under 18 U.S.C. section 1983 (violation of civil rights under color of state authority). But it's really a form of what we'd call a summary judgment motion, in a Virginia state court. Anyone can do a summary judgment motion already in any criminal or civil action, though 1) no one ever does it in a criminal action; and 2) there isn't any defined basis called "qualified immunity". But self defense or any other affirmative defense can be raised in a summary judgment motion or a plea in bar. The application of the "qualified immunity" idea adopted from 42 USC section 1983 litigation standards makes sense, because a defendant in either civil or criminal action could file a motion for summary judgment (or a "plea in confession and avoidance" at common law), in which he admits the facts regarding his use of a firearm, but asserts what is otherwise an affirmative defense, thus potentially obviating the cost of a trial, and for all the same reasons that the courts use in justifying "qualified immunity" in 1983 actions.

There is another area that's a "kinda, sorta": mobile or transient "homes", such as tents, mobile homes, and vehicles. There has never been a case on point as near as I can tell in Virginia, although trailer homes are routinely treated as residences for search and seizure purposes. The idea that a mobile residence (tent, mobile home, travel trailer) is a home has never been established. I think it could be and is a logical application of current law. I think it'd be the same thing as far as defense of the self, family, and home are concerned. So this isn't too big a stretch, if it's a stretch at all.

Finally, and what is new and different, is the idea of an award of attorneys' fees in any action, criminal or civil, for the defendant who successfully defends on the basis of an affirmative defense. The problem I am attempting to address here is what I've heard cops refer to as "punishment by lawyer". They know perfectly well that they've instituted bogus charges and that with a decent attorney the defendant will be acquitted or the charge will be nolle pross'ed. But they also know that an attorney's fee will be many multiples of the potential fines and costs, and that's in addition to the stress and inconvenience of being arrested, charged, jailed, and having to defend at trial. Similar concerns on the civil side obtain as well. If there were some reason to be more circumspect in bringing bad charges and false complaints, then this problem may be ameliorated. It really represents a sort of compromise, in my opinion, because it doesn't include all the damages one might assert in follow-on litigation for abuse of process, battery, false arrest, false imprisonment, and malicious prosecution; but if people will settle for reimbursement of their legal fees, they might be less likely to institute retaliatory lawsuits.

One thing I see as potentially controversial is the issue of no-knock searches. Under the castle doctrine as received in Virginia law, there is no authorization for a no-knock search, whether or not supported by a warrant. The Virginia Sup. Ct. routinely asserts that whatever the federal courts decide with respect to the federal Constitution applies to Virginia. I suggest that the federal Fourth Amendment minimum standards regarding to the definition of "reasonable" in that context is just that, a minimum standard. If the Virginia Supreme Court were to apply Virginia law on such issues, there would be no violation of federal minimum standards, because Virginia law is more protective of citizens' rights than those standards would allow. The castle doctrine is one such protection, which is the original standard for all American jurisprudence on the necessity to announce one's presence, office, and reason for entry, giving time for residents to allow a peacable entry, and serving papers justifying the entry,before the ninja-attired storm troopers come in with guns pointed at the family with fingers on the triggers. My feeling is that absent a genuine emergency (an immediate and objectively perceived threat to life, limb or property) there is no justification for a no-knock entry. If, on some occasions, drugs get flushed and evidence is lost, that's better than having the rights of Virginia citizens lost.

I assert that the remainder of what I've written is supported by common law of Virginia and only represents a codification of what is. As a practical matter, whenever I use the common law castle doctrine in a criminal action, the prosecutors uniformly start rolling their eyes and talking about historical anachronisms, and General District judges are not generally the sort of legal scholars who are willing to consider the common law as it was in 1607 as in any way guiding their decisions. Moreover, they are likely to take opinions of the Supreme Court as gospel in the interpretation of statutes where there is no need for an appeal to precedent, because the statute is perfectly clear and unambiguous. The result is the application of peculiar fact situations in uncertain cases (why else would they have been heard in that court) to cases that are fairly straightforward. The same thing happens with respect to the common law. Under our Constitution, the judicial branch is not free to make up new law as was the Court of King's Bench, because it, unlike the latter, does not represent the sovereign as a whole. Only the legislature can change the common law as incorporated by Va. Code sections 1-200 and 1-201.

Well done, User. I like this proposal a lot. It is readable, concise and clear.

I would agree that the provision to require "reasonable response" to lawful demand for entry (i.e. warrant) might get some opposition from police, but I think it's high time that they had some constraints placed on their acitivities in this area. We've lost at least one detective (Chesapeake) and one senior citizen (Hampton) because of overzealous warrant service. Hopefully, this would also give magistrates some pause for thought before approving warrants. I read somewhere that at least one Supreme Court Justice thought that 20 seconds was an appropriate amount of time for the cops knocking on the door to wait after announcing themselves before they barged in.

ETA: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02-473

whats this all about???? “Preempt” ALL of state government like 15.2-915.

what is “Preempt” ALL of state government like 15.2-915. about??

opencarrypalmtrees said:

what is “Preempt” ALL of state government like 15.2-915. about??

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In short it refers to the Commonwealth of Virginia occupying a superior position with regard to firearms laws. Localities may not restrict guns in a manner greater than the state statute.

Not included specifically are state agencies and the like. State Forestry could allow, State Parks could disallow OC - creates a checkerboard of inconsistencies.

Take the time to read it as it stands - it is not long.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915

Grapeshot said:

In short it refers to the Commonwealth of Virginia occupying a superior position with regard to firearms laws. Localities may not restrict guns in a manner greater than the state statute.

Not included specifically are state agencies and the like. State Forestry could allow, State Parks could disallow OC - creates a checkerboard of inconsistencies.

Take the time to read it as it stands - it is not long.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915

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I hesitate to nit-pick on your post, Grape, but since this law is one of the most critical in our pro-self-defense arsenal, I do feel the need to clarify slightly.

I believe a better way to state your summary bolded above would be this:

Through 15.2-915, the General Assembly retains unto itself all authority regarding almost all aspects of firearms except discharge, specifically denying authority in those matters to local governments (counties, cities and towns.)

The weakness of your statement is the part about "greater than the state statute", which implies that localities may regulate firearms as long as the local ordinances do not exceed state restrictions. That simply is not in the law. The law prohibits any regulation that is not specifically and explicitly granted by the Code of Virginia. This may seem like a small distinction, but I believe it is an essential part of the protection we have from "Bubba Junior" laws throughout the state.

Consequently, as a side note, many jurisdictions have their own local copies of the Concealed Weapon code on their books, which, even though they are usually aligned with the Code of Virginia, I believe they are also illegal and invalid under 15.2-915. I don't know of any negative consequences to the self-defense crowd for them being there, however, so it hasn't really been a big deal to hunt them down and have them removed.

To answer the question... this proposed bill would add in all the rest of State government to the current law, along with localities, reserving unto the General Assembly the sole right to regulate all aspects of firearms. This would prevent various state agencies from having different policies, and eliminate confusion among law-abiding citizens about the legality of carry when visiting and utilizing various state government services, properties, etc.

TFred

Proposed Castle Doctrine Bill, Revised Again

After a long conversation with Senator Dick Black, yesterday, I've come up with more revisions. Please send me whatever criticism may occur to you. You can't tell if it's airtight until you hold it under water.

Revised 111230 Proposed Castle Doctrine Bill

Again, with a few minor additions, I represent that this states the law of Virginia as it is already. As Mr. Cuccinelli says about his department's production of official opinions - it represents what I think the Supreme Court would say if it were stating an opinion on the basis of settled case law and statutes.

How do we resolve the apparent conflict between what has apparently become the acceptable use of the "no-knock warrant" and any sort of a meaningful Castle Doctrine?

I'm no expert, but I can't figure out how the two of these ideas can co-exist.

TFred

TFred said:

How do we resolve the apparent conflict between what has apparently become the acceptable use of the "no-knock warrant" and any sort of a meaningful Castle Doctrine?

I'm no expert, but I can't figure out how the two of these ideas can co-exist.

TFred

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The U.S. Sup. Ct. has issued opinions finding that people are not entitled to suppression of evidence or dismissal due to an improper arrest on the basis of an unreasonable search and seizure under the Fourth Amendment, holding that when there's a warrant issued on the basis of an affidavit asserting "exigent circumstances" (such as the fact that the homeowner has a CHP or is otherwise known to own a firearm), then the bust-down-the-door-and-shoot-the-children's-dog approach is "reasonable".

Based on these opinions, the Virginia Sup.Ct. has asserted that what's "reasonable" under the U.S. Constitution is "reasonable" under the Virginia Constitution.

These things all have to do with the minimum allowable standard for "reasonable" searches and seizures. There is nothing in Virginia law authorizing no-knock warrants. What I have written echoes the common law definition of the castle doctrine as received in Virginia and Semayne's Case, the 1603 English case applying the doctrine to a no-knock entry by the local sheriff and declaring such entry unlawful. My view is that this is consistent with federal Fourth Amendment jurisprudence because Virginia can have a standard that exceeds the protection available under the minimum applicable under the U.S. Constitution. Just because a no-knock warrant may be reasonable for certain analysis doesn't mean the citizens of Virginia have to accept that minimum standard as adequate for their protection.

Since no-knock warrants have been subject to abuse recently, and because a number of police departments in Virginia have been executing ordinary warrants without judicial authorization for bust-down-the-door tactics, and because there is (as the Court in Semayne's Case observed) a serious risk to life and limb on both sides if such tactics were permitted, I think the common law should be completely stated as-is for the protection of the citizens. We are not required to settle for the minimum level of protection.

user said:

The U.S. Sup. Ct. has issued opinions finding that people are not entitled to suppression of evidence or dismissal due to an improper arrest on the basis of an unreasonable search and seizure under the Fourth Amendment, holding that when there's a warrant issued on the basis of an affidavit asserting "exigent circumstances" (such as the fact that the homeowner has a CHP or is otherwise known to own a firearm), then the bust-down-the-door-and-shoot-the-children's-dog approach is "reasonable".

Based on these opinions, the Virginia Sup.Ct. has asserted that what's "reasonable" under the U.S. Constitution is "reasonable" under the Virginia Constitution.

These things all have to do with the minimum allowable standard for "reasonable" searches and seizures. There is nothing in Virginia law authorizing no-knock warrants. What I have written echoes the common law definition of the castle doctrine as received in Virginia and Semayne's Case, the 1603 English case applying the doctrine to a no-knock entry by the local sheriff and declaring such entry unlawful. My view is that this is consistent with federal Fourth Amendment jurisprudence because Virginia can have a standard that exceeds the protection available under the minimum applicable under the U.S. Constitution. Just because a no-knock warrant may be reasonable for certain analysis doesn't mean the citizens of Virginia have to accept that minimum standard as adequate for their protection.

Since no-knock warrants have been subject to abuse recently, and because a number of police departments in Virginia have been executing ordinary warrants without judicial authorization for bust-down-the-door tactics, and because there is (as the Court in Semayne's Case observed) a serious risk to life and limb on both sides if such tactics were permitted, I think the common law should be completely stated as-is for the protection of the citizens. We are not required to settle for the minimum level of protection.

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That sounds great to me... and I don't mean that in any sort of a condescending manner at all, I mean literally great! Now we just have to convince the legislators and the "give LEOs anything they want" crowd. No small task, because they can't see beyond "if you've done nothing wrong then there's nothing to fear from a 'no-knock warrant'". I think we will need to hit the "criminals impersonate cops as they do home invasions" hard.

TFred

Would proposed legislation include the front/rear porch, as in PA?

Just saw this regarding "Castle Doctrine" in Pennsylvania:

Revised 'Castle Doctrine' successfully argued in arrow killing case

District Attorney Jerry Spangler acknowledged that the expansion of the so-called Castle Doctrine, which governs the right to use deadly force without retreat, played a role in the decision not to prosecute Woolley.

In June, Gov. Tom Corbett signed legislation enlarging the definition of one's "castle" to include a home's attached porch, deck or patio.

Previously, a person outside his home was required to take steps away from a potential assailant before having a reasonable belief that deadly force was necessary to protect himself.

...

Kim Stolfer of McDonald, chairman of the group Firearms Owners Against Crime, said the prosecutors' decision in the Somerset County case was an appropriate interpretation of the Castle Doctrine.

"Citizens shouldn't live in fear of prosecution when they're also in fear of serious harm or death," he said.

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Since I'm not an attorney in Pennsylvania, I don't know (and haven't bothered to find out) whether the castle doctrine, or the common law generally, is part of their law, and I'm not sure what's meant by the term, "expansion". Did they have a castle doctrine statute before that limited the scope of the protection available at common law?

user said:

Since I'm not an attorney in Pennsylvania, I don't know (and haven't bothered to find out) whether the castle doctrine, or the common law generally, is part of their law, and I'm not sure what's meant by the term, "expansion". Did they have a castle doctrine statute before that limited the scope of the protection available at common law?

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See here, regarding HB 40, signed into law by Governor Tom Corbett. How does that text suit you?

Repeater said:

See here, regarding HB 40, signed into law by Governor Tom Corbett. How does that text suit you?

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The question was, "Did they have a castle doctrine statute before that limited the scope of the protection available at common law?" The text of the Pennsylvania statute doesn't answer that question.

By the way, I did read that statute during my initial research in drafting what I've presented. I think it's terrible; it's excessively complicated, internally inconsistent, and neither expands nor preserves the common law castle doctrine. A great deal of the statute reverses the castle doctrine. I had trouble reading it and I cannot imagine for a minute that any judge is going to try to analyze it. But here are a few of the problems I see with that statute: it defines the words, "dwelling" and "residence" to exclude most of the curtilage as at common law; it eliminates the privilege and right to defend against unlawful arrest; it authorizes forcible self defense by trespassers on property of another to resist the force used by the property owner to repel the trespasser; it imposes a limitation on the use of deadly force to specific kinds of threats and is not general as to the threat of serious bodily injury; and it imposes a duty to retreat other than in one's residence or unless one is a cop. That's just the tip of the iceberg. This PA statute should be called the "Castle Doctrine Castration Act".

I still don't know whether the castle doctrine was law in PA prior to the passage of that statute (which, I repeat, does not codify the castle doctrine).

user said:

The question was, "Did they have a castle doctrine statute before that limited the scope of the protection available at common law?" The text of the Pennsylvania statute doesn't answer that question.

By the way, I did read that statute during my initial research in drafting what I've presented. I think it's terrible; it's excessively complicated, internally inconsistent, and neither expands nor preserves the common law castle doctrine. A great deal of the statute reverses the castle doctrine. I had trouble reading it and I cannot imagine for a minute that any judge is going to try to analyze it. But here are a few of the problems I see with that statute: it defines the words, "dwelling" and "residence" to exclude most of the curtilage as at common law; it eliminates the privilege and right to defend against unlawful arrest; it authorizes forcible self defense by trespassers on property of another to resist the force used by the property owner to repel the trespasser; it imposes a limitation on the use of deadly force to specific kinds of threats and is not general as to the threat of serious bodily injury; and it imposes a duty to retreat other than in one's residence or unless one is a cop. That's just the tip of the iceberg. This PA statute should be called the "Castle Doctrine Castration Act".

I still don't know whether the castle doctrine was law in PA prior to the passage of that statute (which, I repeat, does not codify the castle doctrine).

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I agree with you. I often apply Occam's razor to statutes to see if the text measures up. This statute seems contrary to what would be optimal. Actually, it could even serve as a model of what not to do.

Further Revisions

120105 Proposed Castle Doctrine Legislation

Revisions based on very thoughtful comments by Attorney Robert W. Herron III, at Anderson & Associates, PC, 2492 N. Landing Rd., Ste 104, Virginia Beach, VA 23456. (757) 301-3636. He's a member here, btw, and a good attorney.

^^^
It just keeps getting better and better.
THANK YOU for all of your hard work on this! I, for one, hope that the 3 prefiled 'castle'-type bills get scrapped in favor of yours, Dan.

user said:

120105 Proposed Castle Doctrine Legislation

Revisions based on very thoughtful comments by Attorney Robert W. Herron III, at Anderson & Associates, PC, 2492 N. Landing Rd., Ste 104, Virginia Beach, VA 23456. (757) 301-3636. He's a member here, btw, and a good attorney.

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I like it even better than the first draft!

But, the 1/3 acre lot size seems a bit arbitrary. My home is at the 12:00 o'clock position on a cul-du-sac; the lot is odd-shaped with a shed in the back yard at the farthest corner from the house, and is 0.4 acres, so how would I determine which (if any) portion was excluded from "curtilage thereof"?.

Does "exclusively residential" exclude homes that are also used by the homeowner as a place of business?