Page 1 of 12 12311 ... LastLast
Results 1 to 25 of 291

Thread: VCDL's LOOK AT THE CASTLE DOCTRINE FOR VIRGINIA

  1. #1
    Founder's Club Member - Moderator ed's Avatar
    Join Date
    Mar 2008
    Location
    Loudoun County - Dulles Airport, Virginia, USA
    Posts
    4,848

    VCDL's LOOK AT THE CASTLE DOCTRINE FOR VIRGINIA

    VCDL's LOOK AT THE CASTLE DOCTRINE FOR VIRGINIA

    The "Castle Doctrine" debate continues to heat up around the country and also here in Virginia. The Castle Doctrine basically says that a person has the right to defend themselves while in their own home (castle) and provides them special protections should they have to exercise that right.


    Virginia's self-defense laws are based on common law developed in case law over the last several hundred years. We have pretty good coverage for self-defense here in Virginia currently (many states who celebrated getting a Castle Doctrine law were not so lucky and desperately needed to improve their laws).


    Here is a summary of the current self-defense law in Virginia:


    Virginia is a stand-your-ground state. But not just in your "castle," but EVERYWHERE you might be. As long as you are not "part of the problem," you can stand your ground and defend yourself. If you end up killing your assailant, it is considered a "justifiable homicide." If you are part of the problem, say you yelled an expletive at someone who cut you off in traffic, and you are attacked, then you must retreat as far as you can, indicate you have given up the fight, and only if the assailant keeps up the attack, may you defend yourself. In that case if the assailant dies, it is considered an "excusable homicide." Also, you can only use deadly force to protect yourself or others when you reasonably fear death OR grievous bodily injury. You CANNOT use deadly force to protect property or against a trespasser.


    You might wonder why you have to retreat if you are part of the problem. That's to prevent someone intentionally murdering someone else and claiming self-defense. Let's say that John wanted to murder Jim. John could get a gun, keep it hidden and antagonize the hell out of Jim to the point that Jim might pickup something to attack John out of frustration or anger. John could then shoot Jim claiming "self-defense" since Jim had come at him with a baseball bat.


    Problem is that John had intentionally set up Jim to be murdered. By requiring the co-aggressor to retreat, the Commonwealth is trying to eliminate such a scenario.


    The push is to change the above into an actual hard-coded law. And that can be very tricky.


    Previous attempts to pass a Castle Doctrine bill have mostly centered around protecting someone in a dwelling from being sued if they have to defend themselves. The problem is that no one is being sued for such a thing. Why? Because lawyers would generally do that on contingency, most likely will lose the case under Virginia law, and they will then lose their investment. So there is no monetary incentive for lawyers to "ambulance chase" legitimate self-defense cases.


    An all-encompassing Castle Doctrine bill has been hashed around by the battery of lawyers who volunteer their time to VCDL. The bottom line is that it is hard to draft such a bill in a way that doesn't goof up our current legal protections. In that case we are better to do nothing than to make current law worse.


    Senator-elect Dick Black has been working with VCDL to draft a solid Castle Doctrine bill for the last couple of weeks. After much time spent going back and forth, Dick and I concluded that the best way to do a Castle Doctrine bill correctly is as follows:


    1. Draft a solid bill and put it on the VCDL website
    2. Encourage prosecutors, defense attorneys, judges, Delegates, Senators, and any other legal professional to look at the bill and try to shoot holes in it
    3. Correct the daft for any found deficiencies and repost to the VCDL website
    4. In the fall of 2012, prepare the final, fully vetted bill to be drafted by Legislative Services and pre-filed for the 2013 General Assembly session


    There are going to be some Castle Doctrine bills put in by others. VCDL will support them, or stay neutral, as long as the bills do no harm. If they do have the potential to harm our current protections, then we will oppose them.
    Carry On.

    Ed

    VirginiaOpenCarry.Org (Coins, Shirts and Patches)
    - - - -
    For VA Open Carry Cards send a S.A.2S.E. to: Ed's OC cards, Box 16143, Wash DC 20041-6143 (they are free but some folks enclose a couple bucks too)

  2. #2
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Interesting!

  3. #3
    Regular Member SouthernBoy's Avatar
    Join Date
    May 2007
    Location
    Western Prince William County, Virginia, USA
    Posts
    5,849
    Ed;

    A clarification if I may.

    "Virginia is a stand-your-ground state. But not just in your "castle," but EVERYWHERE you might be."

    Everywhere you may LEGALLY be.


    The old universal truth, "be careful what you wish for" comes to mind. Good post and something user points out in his seminars. Virginia's approach to the use of deadly force is one of the better in the nation. I suspect the major problem with Castle Doctrine law is the fact that it is limited by one's dwelling and does not follow them as they go about their daily activities, regardless of where they are (as long as they are there legally). So passing a Castle Doctrine bill could negatively impact one's stance when using deadly force elsewhere.

    INAL, so I do not know this for certain by any means. But you're right. Arriving at a good and effective Castle bill in our state will probably be difficult.

    Again, good post.... thanks.
    Last edited by SouthernBoy; 01-05-2012 at 08:12 AM.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  4. #4
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Quote Originally Posted by SouthernBoy View Post
    Ed;

    A clarification if I may.

    "Virginia is a stand-your-ground state. But not just in your "castle," but EVERYWHERE you might be."

    Everywhere you may LEGALLY be.


    The old universal truth, "be careful what you wish for" comes to mind. Good post and something user points out in his seminars. Virginia's approach to the use of deadly force is one of the better in the nation. I suspect the major problem with Castle Doctrine law is the fact that it is limited by one's dwelling and does not follow them as they go about their daily activities, regardless of where they are (as long as they are there legally). So passing a Castle Doctrine bill could negatively impact one's stance when using deadly force elsewhere.

    INAL, so I do not know this for certain by any means. But you're right. Arriving at a good and effective Castle bill in our state will probably be difficult.

    Again, good post.... thanks.
    I'm not going to comment much about this now for several reasons SB....but you're right.

    The problem with the way it is in Va. right now is that without it being codified, you are pretty certain to be charged directly or a Grand Jury is probably going to return a true bill, unless the circumstances are extreme.

    Just being charged, even if you're not convicted, can destroy someone.

    It needs to be written in the Code, preferably in crayon, so even Virginia Magistrates and Police officers can understand it.

    I wouldn't be happy with any proposal right now unless Dan Hawes puts his seal of approval on it.
    Last edited by peter nap; 01-05-2012 at 08:46 AM.

  5. #5
    Regular Member SouthernBoy's Avatar
    Join Date
    May 2007
    Location
    Western Prince William County, Virginia, USA
    Posts
    5,849
    Quote Originally Posted by peter nap View Post
    The problem with the way it is in Va. right now is that without it being codified, you are pretty certain to be charged directly or a Grand Jury is probably going to return a true bill, unless the circumstances are extreme.

    Just being charged, even if you're not convicted, can destroy someone.
    I would not have thought this to be the case here in Virginia. I would have guessed the opposite in cases where it appeared obvious that the victim has to use deadly force. If what you stated here is true, and I have no reason to doubt you would present information otherwise, then some sort of Castle Doctrine law that would cover you regardless of where you happened to be (legally of course) does seem to be preferable to virtually automatically having to go to court.

    Opens a new perspective for me at least.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  6. #6
    Regular Member
    Join Date
    Mar 2009
    Location
    Virginia Beach, Virginia, USA
    Posts
    130

    Sb4

    Doesnt look like you will have the opportunity to vett it though all the scrutiny that you would like to Ed...

    2012 VA GA Session will see this...

    SB 4 Castle doctrine; self-defense and defense of others.

  7. #7
    Accomplished Advocate user's Avatar
    Join Date
    Feb 2009
    Location
    Northern Piedmont of Virginia
    Posts
    2,373
    I reckon I can stop working on this issue, then. I published the final revision of the statute folks asked me to write today. I was wondering why these guys kind of got quiet all of a sudden. I guess I got my point across.
    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.

  8. #8
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Quote Originally Posted by user View Post
    I reckon I can stop working on this issue, then. I published the final revision of the statute folks asked me to write today. I was wondering why these guys kind of got quiet all of a sudden. I guess I got my point across.

    I'm not going to comment much about this now for several reasons SB....but you're right
    That's reason #1

    I'll be honest, I don't care if Black plagiarizes excerpts from the dead sea scrolls, I'm not supporting it unless it gets the User Seal. This is a potentially bad move by VCDL. One of several I've already seen, and the session hasn't even started yet.

  9. #9
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Ed, again, not to comment much yet, there seems to be a lot of duplication of effort and a little intellectual thievery going on with the crop of Castle Doctrine bills and proposals this year.

    This is a very delicate area that can cause a great deal of harm if handled poorly.

    Just remember, neither Al Gore or Kirby Birch invented the internet!
    Last edited by peter nap; 01-05-2012 at 11:20 AM.

  10. #10
    Regular Member
    Join Date
    Dec 2010
    Location
    Pacific Northwest
    Posts
    623
    Quote Originally Posted by SouthernBoy View Post
    The old universal truth, "be careful what you wish for" comes to mind. Good post and something user points out in his seminars. Virginia's approach to the use of deadly force is one of the better in the nation. I suspect the major problem with Castle Doctrine law is the fact that it is limited by one's dwelling and does not follow them as they go about their daily activities, regardless of where they are (as long as they are there legally). So passing a Castle Doctrine bill could negatively impact one's stance when using deadly force elsewhere.
    But why would that be?

    If the current state of the common law is that you can stand your ground anywhere you can legally be, and a castle doctrine bill is passed clarifying that only within your home, how does that change anything outside the home? The law would only apply to the specific circumstances stated in that law.

    A law restricting what you can do in one place doesn't impose the same restriction in other places not covered, nor does it mean that there aren't other applicable restrictions elsewhere. So why would a law protecting you in one place change protections you already have elsewhere?
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

  11. #11
    Accomplished Advocate user's Avatar
    Join Date
    Feb 2009
    Location
    Northern Piedmont of Virginia
    Posts
    2,373

    "Expressio unius alterius exclusio est."

    "The expression of one thing is the exclusion of others not expressed." A canon of judicial "construction" or "interpretation". It used to drive me nuts when I would say something to the former spousal unit who would then make all sorts of assumptions about what I didn't say. But there's the trick that the courts use to make the law mean something it doesn't say. If you specify one thing in a statute that a judge can find is similar to something else, then the judge can take the opportunity to say that the something else that used to be ok is now prohibited on the theory that the legislature said so by not saying anything about it.

    Part of the trick to being effective as an attorney is to understand that it's humans running the system; that humans do what they do; not trying to make sense of it, and not letting it make you crazy.

    Thank you for the expressions of support, by the way; I am humbled and grateful for your confidence.
    Last edited by user; 01-05-2012 at 11:43 AM.
    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.

  12. #12
    Regular Member
    Join Date
    Dec 2010
    Location
    Pacific Northwest
    Posts
    623
    Quote Originally Posted by user View Post
    "The expression of one thing is the exclusion of others not expressed." A canon of judicial "construction" or "interpretation". It used to drive me nuts when I would say something to the former spousal unit who would then make all sorts of assumptions about what I didn't say. But there's the trick that the courts use to make the law mean something it doesn't say. If you specify one thing in a statute that a judge can find is similar to something else, then the judge can take the opportunity to say that the something else that used to be ok is now prohibited on the theory that the legislature said so by not saying anything about it.

    Part of the trick to being effective as an attorney is to understand that it's humans running the system; that humans do what they do; not trying to make sense of it, and not letting it make you crazy.

    Thank you for the expressions of support, by the way; I am humbled and grateful for your confidence.
    Then couldn't that easily be solved by having the bill state something to the effect of "This section does not apply to any use of force that happens outside of the home"?

    And, since self defense is (by my understanding) an affirmative defense, wouldn't that legal doctrine mean that the inclusion of one affirmative defense by statute would preclude all other affirmative defenses? (After all, expressing one affirmative defense would be the exclusion of others not expressed, right?)
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

  13. #13
    Regular Member coondog22554's Avatar
    Join Date
    Mar 2008
    Location
    Stafford, VA, ,
    Posts
    62
    Quote Originally Posted by AJG View Post
    Doesnt look like you will have the opportunity to vett it though all the scrutiny that you would like to Ed...

    2012 VA GA Session will see this...

    SB 4 Castle doctrine; self-defense and defense of others.
    Along with...

    HB 14 Persons acting in defense of property; civil immunity provided for an occupant of dwelling, etc.

    HB 47 Persons acting in defense of property; civil immunity provided for an occupant of dwelling, etc.

    HB 48 Castle doctrine; self-defense and defense of others.

    Larry

  14. #14
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Quote Originally Posted by coondog22554 View Post
    Along with...

    HB 14 Persons acting in defense of property; civil immunity provided for an occupant of dwelling, etc.

    HB 47 Persons acting in defense of property; civil immunity provided for an occupant of dwelling, etc.

    HB 48 Castle doctrine; self-defense and defense of others.

    Larry
    Yep and, that's not the only interesting trend this year. I'm getting an end of the world size popcorn now.

    Make sure you group them in the right categories though.
    14 and 47 only provide civil immunity. They are pretty much useless.
    Last edited by peter nap; 01-05-2012 at 12:37 PM.

  15. #15
    Regular Member coondog22554's Avatar
    Join Date
    Mar 2008
    Location
    Stafford, VA, ,
    Posts
    62
    Quote Originally Posted by peter nap View Post
    Yep and, that's not the only interesting trend this year. I'm getting an end of the world size popcorn now.

    Make sure you group them in the right categories though.
    14 and 47 only provide civil immunity. They are pretty much useless.
    Ah...you are correct!
    ---------------------
    HB48 and SB4 are identical and read as...

    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.

  16. #16
    Regular Member SouthernBoy's Avatar
    Join Date
    May 2007
    Location
    Western Prince William County, Virginia, USA
    Posts
    5,849
    Quote Originally Posted by coondog22554 View Post
    Ah...you are correct!
    ---------------------
    HB48 and SB4 are identical and read as...

    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.

    "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"

    Ah, a fly in the ointment. Someone entering at night meets the one-of-five felony criteria which can be answered with deadly force (burglary in this case). If you must wait until an overt act has been committed against you or yours, it could be too late.

    I hope user jumps in on this one because it is from him I learned this little tidbit and if I got this wrong, please do correct me.
    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  17. #17
    Regular Member mk4's Avatar
    Join Date
    Sep 2011
    Location
    VA
    Posts
    548
    Dan's proposed bill-to-be (?) beats all of these, hands down. I hope it gets sponsored and considered.

  18. #18
    Accomplished Advocate peter nap's Avatar
    Join Date
    Oct 2007
    Location
    , ,
    Posts
    13,580
    Quote Originally Posted by mk4 View Post
    Dan's proposed bill-to-be (?) beats all of these, hands down. I hope it gets sponsored and considered.
    No comment just yet except
    +1

  19. #19
    Regular Member
    Join Date
    Mar 2009
    Location
    Virginia Beach, Virginia, USA
    Posts
    130

    where is it???

    Quote Originally Posted by mk4 View Post
    Dan's proposed bill-to-be (?) beats all of these, hands down. I hope it gets sponsored and considered.
    And where might one find this document?

  20. #20
    Regular Member Marco's Avatar
    Join Date
    Jul 2007
    Location
    Greene County
    Posts
    3,844
    Quote Originally Posted by AJG View Post
    And where might one find this document?


    Quote Originally Posted by user View Post
    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.
    Here you go.
    If you think like a Statist, act like one, or back some, you've given up on freedom and have gone over to the dark side.
    The easiest ex. but probably the most difficult to grasp for gun owners is that fool permission slip so many of you have, especially if you show it off with pride. You should recognize it as an embarrassment, an infringement, a travesty and an affront to a free person.


    ~Alan Korwin

  21. #21
    Regular Member
    Join Date
    Mar 2009
    Location
    Virginia Beach, Virginia, USA
    Posts
    130

    TY

    Thank You...

  22. #22
    Founder's Club Member - Moderator ed's Avatar
    Join Date
    Mar 2008
    Location
    Loudoun County - Dulles Airport, Virginia, USA
    Posts
    4,848
    Quote Originally Posted by peter nap View Post
    Ed, again, not to comment much yet, there seems to be a lot of duplication of effort and a little intellectual thievery going on with the crop of Castle Doctrine bills and proposals this year.
    Many constituents went to their legislature reps and said 5 words "Happy New Year, Castle Doctrine". So.. everyone is doing a version. VCDL will support a "correct one" if it exists. My gut says it will not this session. Dan and I went back and forth with Cucinelli on a couple points and then spent an hour on the phone going over language with Dick Black. Even Richard Gardner and Kurt Mueller have chimed in. Bob Herron also spend alot of time commenting. If it takes next session to make it perfect, then so be it.

    Ed
    Carry On.

    Ed

    VirginiaOpenCarry.Org (Coins, Shirts and Patches)
    - - - -
    For VA Open Carry Cards send a S.A.2S.E. to: Ed's OC cards, Box 16143, Wash DC 20041-6143 (they are free but some folks enclose a couple bucks too)

  23. #23
    Regular Member TFred's Avatar
    Join Date
    Oct 2008
    Location
    Most historic town in, Virginia, USA
    Posts
    7,705
    Quote Originally Posted by ed View Post
    Many constituents went to their legislature reps and said 5 words "Happy New Year, Castle Doctrine". So.. everyone is doing a version. VCDL will support a "correct one" if it exists. My gut says it will not this session. Dan and I went back and forth with Cucinelli on a couple points and then spent an hour on the phone going over language with Dick Black. Even Richard Gardner and Kurt Mueller have chimed in. Bob Herron also spend alot of time commenting. If it takes next session to make it perfect, then so be it.

    Ed
    And lead the effort to fend off any "bad versions" that may set us back thousands of years....

    TFred

  24. #24
    Regular Member wylde007's Avatar
    Join Date
    Jan 2009
    Location
    Va Beach, Occupied VA
    Posts
    3,037

    Cool

    I'd just like to see us set back about 151 years.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  25. #25
    Accomplished Advocate user's Avatar
    Join Date
    Feb 2009
    Location
    Northern Piedmont of Virginia
    Posts
    2,373
    Quote Originally Posted by wylde007 View Post
    I'd just like to see us set back about 151 years.
    I'm with you on that. But then, as a History major in college, the one thing I came away with was the perception that the only thing that has really changed in the last eight thousand years of recorded data is that humans have learned to move bigger and heavier things farther and faster. People are pretty much the same. There's just lots more of them, now.
    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.

Page 1 of 12 12311 ... LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •