Question on use of force for you to ponder and give me input on

SouthernBoy said:

OMG. Big difference. Huge difference. Almost an insult. Especially Prince Georges County, MD. That place is a dump. Look what runs their local government and mans its agencies and look what lives there. A real mess.

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peter nap said:

That's not what I meant. The syndicate feed just said Prince George County. Since I only try to take feeds from Va, I assume Va...but since NOVA and Maryland are close (as in Southside Va. and NC) NOVA news feeds sometimes include Maryland.

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NovaCop10 said:

Wylde, why must you always bring your anti-LEO comments to every thread? If you believe LEOs are savagely beating innocent citizens to death then please let me know who and where. My coworkers and I would be more angry than you. Trust me, simply pepper spraying someone results in a month long internal investigation. I don't see how any officer could savagely beat someone to death and get away with it. Can you even provide a cite of a time when an officer savagely beat someone to death and it was not warranted?

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user said:

Defense of others is justified only when the "other" is an innocent victim; unless you know you can meet that threshold question, it makes absolutely no difference whether the attacker is a cop or not, or how much force the attacker is using. It might be a good idea to be available as a witness, if you can do so safely, and I'm all in favor of eliminating injustice - but you're not going to help by jumping into a fight when you don't actually have personal knowledge of the facts, especially the identity of the parties. If the cop has run down a fleeing felon who is offering resistance, and you think the cop should be called for unnecessary roughness, and get in the middle of it (not knowing that the running man is a felon), you're going to have some serious problems. It won't make a spit's worth of difference how rough the cop was, because the "victim" was not "innocent".

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user said:

Defense of others is justified only when the "other" is an innocent victim; unless you know you can meet that threshold question, it makes absolutely no difference whether the attacker is a cop or not, or how much force the attacker is using.

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user said:

Defense of others is justified only when the "other" is an innocent victim; unless you know you can meet that threshold question, it makes absolutely no difference whether the attacker is a cop or not, or how much force the attacker is using. It might be a good idea to be available as a witness, if you can do so safely, and I'm all in favor of eliminating injustice - but you're not going to help by jumping into a fight when you don't actually have personal knowledge of the facts, especially the identity of the parties. If the cop has run down a fleeing felon who is offering resistance, and you think the cop should be called for unnecessary roughness, and get in the middle of it (not knowing that the running man is a felon), you're going to have some serious problems. It won't make a spit's worth of difference how rough the cop was, because the "victim" was not "innocent".

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Self-defense and defense of others are affirmative defenses for which the accused has the burden of persuading the fact finder that he or she acted in defense of self or another to the degree necessary to raise a reasonable doubt about his or her guilt. See Smith, 17 Va. App. at 71, 435 S.E.2d at 416; Foster v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201-02 (1991) (recognizing defense of others “is commensurate with self-defense”). Although undisputed facts may establish self-defense as a matter of law, see, e.g., Hensley v. Commonwealth, 161 Va. 1033, 170 S.E. 568 (1933), whether the accused establishes that he or she acted in either respect is generally a question of fact. See Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977).

A claim of self-defense may be either justifiable or excusable; if it is either, the accused is entitled to an acquittal. See Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958). “Justifiable homicide in self-defense occurs [when] a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.” Id. (emphasis added). “If an accused ‘is even slightly at fault’ at creating the difficulty leading to the necessity to kill, ‘the killing is not justifiable homicide.’” Smith, 17 Va. App. at 71, 435 S.E.2d at 416.

Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.

Bailey, 200 Va. at 96, 104 S.E.2d at 31 (citations omitted).

“[A] person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself.” Foster, 13 Va. App. at 385, 412 S.E.2d at 201 (citing with approval 40 Am. Jur. 2d Homicide § 171 (1968)). Thus, one may be justified in using deadly force to defend another person where he or she reasonably believes that the person defended faces an imminent threat of serious bodily harm or death and that such person was not at fault in bringing about the necessity to use the deadly force. See Foster, 13 Va. App. at 385-86, 412 S.E.2d at 201-02; see also 1 Wayne R. LaFave, Substantive Criminal Law § 5.8 (1986).

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As to Foster's contention that he was entitled to have the jury instructed on defense of others, we hold that the trial court did not err in refusing the instruction. Foster's tendered instruction was an erroneous statement of the Virginia law. However, because the issue will necessarily arise on remand, we address what is the state of the law in Virginia on defense of others. The Supreme Court has clearly recognized that one is privileged to use force in defense of family members. See Newberry v. Commonwealth, 191 Va. 445, 459, 61 S.E.2d 318, 324 (1950); Green v. Commonwealth, 122 Va. 862, 871, 94 S.E.940, 942 (1918); Hodges v. Commonwealth, 89 Va. 265, 272, 15 S.E. 513, 516 (1892). We find no Virginia cases, nor have any been cited to us, determining whether and when a person can use force to protect or defend a third person. Generally, however, this privilege is not limited to family members and extends to anyone, even a stranger who is entitled to claim self-defense. See 40 Am. Jur. 2d Homicide § 170 (1968); In re Neagle, 135 U.S. 1, 75-76 (1890); State v. Saunders, 330 S.E.2d 674, 675, 76 (W. Va. 1985); Yardley v. State, 100 S.W. 399, 400 (Tex. Crim. App. 1907); State v. Bowers, 65 S.C. 207, ___ , 43 S.E. 656, 657-58 (1903); Stanley v. Commonwealth, 86 Ky. 440, ___, 6 S.W. 155, 155-57 (1887); Mitchell v. State, 22 Ga. 211, 234 (1857). Like self-defense, the circumstances in which the protection of others may be raised as a defense are carefully circumscribed so as to preclude such a claim in situations where one has instigated the fray in order to provide an excuse for assaulting or murdering his enemy. In a majority of jurisdictions, a person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself. 40 Am. Jur. 2d Homicide § 171 (1968). Thus, the right to defend another “is commensurate with self-defense.” Id. Consequently, in those jurisdictions which recognize the defense, the limitations on the right to defend one's self are equally applicable, with slight modifications, to one's right to defend another. One must reasonably apprehend death or serious bodily harm to another before he or she is privileged to use force in defense of the other person. The amount of force which may be used must be reasonable in relation to the harm threatened. See Diffendal, 8 Va. App. at 421, 383 S.E.2d at 25-26 (delineating limitations in self-defense context).

Jurisdictions which recognize the defense are split on the question whether the person to whose aid one comes must be free from fault in order to claim the defense of protection of others. The majority of those courts which have addressed the question have adopted an objective test so that one “may act on and is governed by the appearance of conditions when he arrives upon the scene, provided he acts honestly and according to what seems reasonably necessary in order to afford protection.” 40 Am. Jur. 2d Homicide § 172 (1968). Thus, under the majority view, in order to justifiably defend another, the defendant must reasonably believe that the person being defended was free from fault; whether the defended person was, in fact, free from fault is legally irrelevant to the defense in those jurisdictions. This view is based on the principle that one should not be convicted of a crime for attempting to protect one whom he or she perceives to be a faultless victim from a violent assault. Under this approach, the policy of the law is to encourage individuals to come to the aid of perceived victims of assault. Id. We find this position to be well-grounded in principle and policy. Accordingly, we hold that the law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray.

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