I recall that you and one of your associates spoke at a recent Continuing Legal Education program that I attended. At least I think it was you - I got the email address out of the front of the outline book. I was the guy on what will have been your left, arguing that it was a bad idea to codify the castle doctrine.
Now that some bills have been introduced, purportedly to "codify the castle doctrine", I'm seriously concerned, because the net effect of any of them will be the destruction of rights, not a preservation of rights. What concerns me is that an NRA-ILA "alert" has apparently been broadcast telling members to support these bills. This, to me, is a "what, are you NUTS?" kind of situation.
After talking about it for a while with Ken Cuccinelli and Judge Michael Valentine, I became convinced that codification is a good idea, but not because of any lack in current law. Virginia common law has the strongest implementation of the castle doctrine of any state in the U.S. The problem is that people don't know it well enough, as it goes back about a thousand years. That includes not just plain folks and cops, but also judges (as Cuccinelli observed) and prosecutors (as Valentine added in defense of judges who only get the cases that prosecutors put in front of them).
I've been working hard on this issue for about the past four years, and I've developed a comprehensive legislative proposal to codify the law of personal defense in Virginia. It is, with three minor exceptions, the current state of the common law. However, regardless of whether it accurately reflects the common law, I suggest that it is what the law ought to be. I'm attaching a copy; I think it ought to be a model for every state, because I looked at all the statutes that have been enacted on this subject recently, and they are all seriously deficient - most do not incorporate the castle doctrine at all, despite the use of that phrase in the bills resulting in their enactment.
I seriously suggest that you get whoever is responsible for those alerts to fire off another one telling the members to wait a bit, because it's much more dangerous to jump in with both feet when people don't know what they're doing, than it is to wait and think about it. A year won't be a problem, because the common law is what it is, whether we codify it or not. But these bills are a complete disaster for people interested in defense of themselves, their homes, and their families.
The following is an email I shot off to a bunch of folks earlier today. I apologize for the cynical reference to the NRA - I'm a member and a certified instructor, myself. But it explains my position and why these bills are not just not ok, but downright dangerous. The membership needs to know that and tell their legislators to back off!!! PLEASE see that they get the message.
----- Original Message -----
From: "Daniel L. Hawes, Esq."
Sent: Friday, January 27, 2012 9:38 AM
Subject: So-called "castle doctrine" bill
I am deeply concerned about SB 4, referred to as a "castle doctrine" bill. I have been unable to understand why this bill has been proposed at all, and why there are so many practically identical copies of it in the legislative hopper. To me, that indicates that there is a common source for all these bills, and it is not a source that is friendly to the rights of Virginians.
The bill does not incorporate the common law castle doctrine as it currently exists in Virginia law, also called the affirmative defense of "defense of habitation". So it appears to me that the only reason for calling it a "castle doctrine" bill is to sugar-coat its real effect in order to make it palatable to those who would oppose it if they knew what it really does. This may not be what any of the bill's patrons really do intend, but that does not matter, since a court's determination will be made independently. It may be that people wish the bill would do something in particular that is not stated in the text of the proposed statute, but when it gets to court, it is usually only the exact text that is considered by that court.
I am deeply troubled by this bill, and fear it will turn Virginia into a "pro-crime" capital in the form of Prince George's County, Maryland, because it has the effect of removing almost all of the personal defense rights Virginian now enjoy in their own homes. The following paragraphs state my objections:
1) If it purports to immunize a homeowner from civil liability, why is it designated as a section proposed to go into title 18.2, which is not a procedural title at all; the purpose of that title is to define crimes and offenses. If the bill were really about civil liability, it would have been designated to go into 8.01, probably under Chapter 4, "Limitations on Actions". It omits any reference to other common law defenses, and fails to say something like, "All powers, rights, and defenses existing heretofore at common law are continued, and nothing herein shall be taken to deny or disparage such powers, rights, and defenses." The clear intent of the statute, according to the rules of judicial construction, is to remove rights, not to add them, specifically in the context of criminal charges. "Expressio unius alterius exclusio est."
2) By its failure to make provision for defenses against criminal charges, the proposed bill effectively repeals the affirmative defenses now available as a matter of law: self defense, defense of others, defense of habitation, and stopping a serious felony in progress. This purported "castle doctrine" bill actually revokes the castle doctrine (defense of habitation).
3) The state of the law at present only requires that a person have a "reasonably held, good faith belief, based on objective fact" that someone posing a threat must be dealt with through the use of potentially lethal force. Because this proposal fails to make any reference to that criterion in sub-paragraph "i", a person will have to be absolutely certain of the situation before he responds to an attack or intrusion after the passage of this bill. Because the same rule applies generally, whether within the home or without, and to all persons regardless of status, it applies to police officers in the field. It is not uncommon, in an otherwise routine traffic stop, for someone to be shot and killed by police because he suddenly took out a cell phone or cigarette lighter, and all the police officer knew was that the person suddenly pulled out a shiny metallic object that made a clicking noise like the sound of pulling back the hammer on a revolver or chambering a round in a semiautomatic pistol. And, having a "reasonably held, good faith belief, based on objective fact" that he or another innocent person was faced with the threat of imminent serious bodily injury, shot and killed the "assailant". This bill would revoke that defense for homeowners. A person wishing to make use of the proposed statute in litigation would be required, as a matter of scientific veracity, to show that the intruder was unlawfully present and that he had already made an aggressive attack. This will probably require expensive expert witnesses.
4) The proposal, by its terms, eliminates the presently existing rights of Virginians in their own homes to the defenses of self defense, defense of others, defense of habitation (the real castle doctrine), and stopping a serious felony in progress. It requires that, before a homeowner may use deadly force against a burglar, he must first determine BOTH a) that the person has entered the home unlawfully; and b) that the person has already committed an overtly aggressive act; where any one of the four defenses now extant would suffice. Paradoxically, the homeowner must also have a reasonable belief that the intruder is about to attack someone, which makes very little sense if the statute requires that the intruder has already committed "an overt act toward the occupant or another person in the dwelling". All of which means that the homeowner has to wait until he's already been shot or his daughter raped, before he can shoot a burglar at 2:00 a.m. in his own bedroom, and he may still be charged with murder, since the defenses otherwise presently available to the homeowner finding himself criminally charged in such an incident will also have been removed by this statute.
5) The word, "immune", as used in the last sentence, is presently undefined. Does that mean he has an affirmative defense (which he already has), does it mean that the complaint will be dismissed on a plea in bar or demurrer, or does it mean that prospective complainants will be prevented from even filing the complaint? Does this resurrect the plea in abatement, which has been abolished by statute as to civil cases? How, exactly, does a dwelling result from the use of "such force"? The sentence makes no sense, in terms of practical litigation.
This proposal is designed to create and foster litigation where none exists at present. It will create a burden on our judiciary, and extraordinary expense to the parties. I have recently been telling people that this bill is actually good for lawyers, because it will generate so much new work. But seriously, I fear this proposal, if approved, will eliminate all of the rights of personal defense a person now has in his own home and substitute a new, stricter rule designed to limit his ability to defend himself, his home, and his family. It will therefore result in an increase in violent home intrusions. It is a very bad bill for Virginians, and I request that it be withdrawn.
Daniel L. Hawes, Esq. [Admitted in all Virginia courts, U.S. Sup. Ct., 4th Circuit Ct. Apps., & Fed. Dist. Cts. in the Eastern District of Va.; about 90% of the firm's civil and criminal litigation practice involves firearms; NRA certified firearms instructor; approved attorney for members of the United States Concealed Carry Association and the Armed Citizens' Legal Defense Network, author and principal presenter of "the Deadly Force Seminar" (tm). Former vice-chair, Fairfax Republican Committee, former president of the Southeast Fairfax Citizens' Association.]
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