Brandishing a gun to defend front yard from vandals?

[skidmark]

Are the folks congregating on your lawn merely taunting you with nasty words, or are they expressing outright threats against your life and the lives of your family? And if the latter, what ability do they have to carry out those threats? Finally, have they in fact taken action to carry out those threats?

As law-abiding folks we are going to be reacting instead of launching preemptive strikes. That's one of the ways everybody can distinguish us from the lawless VCAs*.

It sucks to always be behind the curve. But for folks with our mindset and values it sucks even more to be locked up in prison.**

If you are not willing to accept the consequences of acting contrary to the rules then quit your whining about how much doing that sucks and is not fair and makes you "feel" unhappy. Make the move on over to the other side.***

stay safe.

*VCA = violent criminal actor

**apparently time in jail/prison is not considered a Bad Thing(TM) by the other side.

*** OK, I'm finished ranting. Thanks for your patience while I got it out of my system.

 

[TFred]

Are the folks congregating on your lawn merely taunting you with nasty words, or are they expressing outright threats against your life and the lives of your family? And if the latter, what ability do they have to carry out those threats? Finally, have they in fact taken action to carry out those threats?

As law-abiding folks we are going to be reacting instead of launching preemptive strikes. That's one of the ways everybody can distinguish us from the lawless VCAs*.

It sucks to always be behind the curve. But for folks with our mindset and values it sucks even more to be locked up in prison.**

If you are not willing to accept the consequences of acting contrary to the rules then quit your whining about how much doing that sucks and is not fair and makes you "feel" unhappy. Make the move on over to the other side.***

stay safe.

*VCA = violent criminal actor

**apparently time in jail/prison is not considered a Bad Thing(TM) by the other side.

*** OK, I'm finished ranting. Thanks for your patience while I got it out of my system.

All well and good, but where does this fit into the right to expel trespassers with the appropriate level of force? Trespassers are trespassers, no matter what they are doing or saying. Do we have the right to expel them or not?

Don't mean to "rant you up"... these are very serious questions.

TFred

 

[Ranger]

Those are good points. I never thought of those. I guess mainly because I'm handgun oriented for self-defense.

No, wait. That wasn't the PC answer. How about this: I never thought of those. I guess mainly because open carry of long guns just isn't discussed in polite company on this forum.

Seriously, though, you raise good points. Always good to figure these things out before an encounter, ya know.

My first thought suggestion would be a sling for the shotgun, carrying it over your shoulder.

I wonder if daylight vs night comes into it from a legal standpoint.

This is a little confusing that carrying a firearm in your hands on your private property could be a criminal act? Last year I was stopped by a state police officer for carrying a pistol on private property and he made an acusation of me illegal hunting. I asked if carrying a firearm on private property was illegal - he never answered. He left a little mad, but did not cite me. I do not think he wanted to have a judge see his error.

 

[45acpForMe]

This is a little confusing that carrying a firearm in your hands on your private property could be a criminal act? Last year I was stopped by a state police officer for carrying a pistol on private property and he made an acusation of me illegal hunting. I asked if carrying a firearm on private property was illegal - he never answered. He left a little mad, but did not cite me. I do not think he wanted to have a judge see his error.

I would recommend having any pistol holstered unless you have enough land to be doing target practice. Brandishing is brandishing no matter where you are. The trick is that as to reasonably induce fear in the mind of another is such a subjective phrase that people have run into problems carrying a pistol (even in a holster) to their car and a neighbor complains. A reasonable person in my opinion wouldn't/shouldn't be in fear of a holstered gun. With the skidmark case in Surry we are finding that every locality isn't equal when it comes to interpretation of brandishing (in his case the use of a finger induced such terror in the security guard they had him arrested).

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-282

Yes it is bogus, yes it is disconcerning, yes we are responsible to know the laws, so that is why we sometimes get into a whining-fest about how existing law is being interpreted.

The exception is this section shall not apply to any person engaged in excusable or justifiable self-defense so if you are defending yourself or another you are ok to unholster, point etc. This thread we are talking about how to legally defend property. If someone was vandalizing your car or trying to steal it, walking out your front door with a shotgun in hand could be a no no in some LEO mind but not others. Walking out your front door with a holstered handgun isn't as legally-dangerous. The way the laws are written it is confusing as to how and what you can do without running into problems. My solution would be to void such laws when on or in your own property and or allow use of lethal force to defend your property. I agree a human life is worth more than most property (some will argue all property) but the leniency of the law should always lie with the property owner.

 

[skidmark]

All well and good, but where does this fit into the right to expel trespassers with the appropriate level of force? Trespassers are trespassers, no matter what they are doing or saying. Do we have the right to expel them or not?

Don't mean to "rant you up"... these are very serious questions.

TFred

TFred, it's not you that I'm ranting at/about.

The "answer" to your question is that you absolutely have the right to expel trespassers, but can only use that force necessary to achieve the removal without committing a breach of the peace. Clear as mud, right?

If you tell the trespasser to leave and they refuse, you can then tell them to leave or you will attempt to bring consequences upon their head (usually a warrant/citation by the police or obtained by your own visit to the Magistrate). If they still refuse to leave you can stand in front of them and physically deny them the ability to encroach further onto your property, but you must not touch them as that would be a battery. Nor can you move/act/behave in a way that clearly indicates you are going to touch them as that would be assault. (Be a big, burly bouncer who stands there with their arms crossed saying "No! You shall not pass any further", not a herding dog nipping at their heels to try to force them to move.)

If they do anything to threaten your physical safety (either assault or battery) you apparently can respond with an equal level of force. They yell that they will smash your head, you can yell back that you will defend yourself. They pick up a switch and raise it as if to strike at you, you can pick up something of about equal size to use to deflect that switch - but it probably would be better not hold it over your head as if to strike out at them 'cause all you want to do is defend yourself. If they pick up a board, or a branch, or a pipe, or a gun, you can now go to lethal force because they went there first. But I'm fairly sure your jury (not to mention your attorney) would want you to wait till they struck out at you before you shot them.

Caveats: #1 - I may be a lawyer but I am not an attorney and I certainly am not trying to be your attorney. My opinion of the law is just that and it is not being offered so you can act based on what I might or might not think. You make up your own mind. #2) Why are you wanting to go beyond harsh words and sitting there waiting for the cops to arrive. Unless, that is, your life is being threatened and you have no means of retreat (notwithstanding your legal right to stand your ground)? What do you prove, and to whom do you prove it?

I understand the thoughts behind how much effort and time one puts into obtaining nice things for themself and their family. And how trespassing is in effect stealing those things and that time/effort. But seriously, what are you proving and is it worth it? Maybe it's because I'm old and no longer see everything as a personal challenge. Maybe it's because some things are just no longer worth the expenditure of energy. Maybe it's because I've learned how to delay gratification and how to extract revenge without the immediate shedding of blood and limbs. As they say, YMMV.

stay safe.

 

[user]

Topical approach to questions raised

ejecting a trespasser (phrase: breach of peace)

An ordinary owner of an interest in real property has the right to expel trespassers for good reason, bad reason, or no reason at all. (Non-discrimination laws apply to certain business property.) The phrase, "create a breach of the peace" means just that: the ejectment cannot in and of itself create a breach. That means the same thing as "you're not allowed to use more force than is reasonably necessary under the circumstances." The breach of the peace could be caused by the trespasser, however, in which case, one is entitled to use such force as is necessary to defend against the resistence offered, up to and including deadly force (the self-defense rule applies, and you've got to know the definition like the back of your hand if you're going to carry a gun).

in the night-time

The common law definition of burglary from Merry Olde (see sections 1-201 and 1-202 of the Code of Virginia as to application of the common law) included the element that the offense was committed in the night-time. That's because the presumption is that a person who unlawfully enters the dwelling of another or the curtilage thereof with the intention to commit a felony (the word, "therein", is not part of the definition) is at least willing to kill the defenseless, sleeping, folks whom he may find there. In the day-time is different, able-bodied folks are all out working in the fields, or at least up and around so as to raise an alarm. Virginia has a statutory "daylight" burglary definition, but no one has ever written an appellate decision regarding application of the rules regarding defense against burglary by the use of deadly force in the day-time. Ordinarily, at common law, a person who breaks in during the day-time is a trespasser, not a burglar, and that's been changed by a statute which must be strictly construed as contrary to the common law. I'd be willing to argue that the same rule applies, but don't bet on success if you shoot someone just 'cause he's in your house in the day-time and not posing an immediate threat.

accomplishment of public necessity

This is part of the definition of the word, "justification". When the state does it (e.g., burning down San Francisco in order to create a firebrake against a fire raging in a small part), that's "justified". When a soldier shoots an enemy in times of war, that's "justified", and when a police officer shoots the bank robber, that's "justified". This is very different from when a citizen shoots someone; that may be "excusable", but it is not "justified".

definition of "great crime" or "serious felony"

The five serious felonies traditionally cited are: arson, burglary, rape, murder, and robbery. It is "excusable" to shoot to kill a felon in the act of the commission of a serious felony.

shooting a fleeing felon

No one may lawfully shoot a fleeing felon anymore. When a cop holds a gun on someone and tells them not to move, it's kind of silly, since the Supreme Court says it would be a violation of their right to due process if he shot 'em.

disparity of force in self defense situations

Three against one, Big guy against little guy, strong guy against weaker sex, baseball bat against weaponless, etc. All give rise to a factor to be considered when deciding whether the self defense rule applies, i.e., whether one had the requisite "good faith belief, based on objective fact, that he or another innocent third party was faced with the imminent threat of a serious bodily injury."

 

[45acpForMe]

So as TFred and I are asking where in the force continuum would keep us within the law?

If I can't brandish or shoot a tresspasser/robber, would pepper spray be allowable assuming they won't leave, taser? Do they make pepper spray grenades for gangs on my lawn?

As far as a robber breaking into your car, you can't tackle him because that would be assault & battery????

There has to be some caveat in that THEY are committing a crime which should allow you to throw normal civility out the window and all of its legal ramifications. (my two cents)

Is this horse dead yet?......

 

[TFred]

I think what I'm starting to see here is that there is no answer before the fact, and the only answers available will come after the fact, in front of a judge or jury of your peers. Not a very civil way to run a country.

TFred

 

[Don Barnett]

Does Virginia Have a "Castle Doctrine"?

Just scanning the thread leads me to several comments:

1. I don't believe Virginia has a Castle Doctrine so you can't use lethal force to protect property unless there is a threat to your physical well being. Even with a Castle Doctrine, such use of force is NOT morally correct, IMO.

2. Arguing with punks is like wrestling with a pig; you both get dirty but the pig likes it.

3. Letting the situation escalate is not the correct and "adult" thing to do.

4. Brandishing a weapon, or threating the use of lethal force, is letting the situation escalate. Better to say that you are going to call the police, retreat inside the house and then call the police.

Just my thoughts.

 

[TFred]

Just scanning the thread leads me to several comments:

1. I don't believe Virginia has a Castle Doctrine so you can't use lethal force to protect property unless there is a threat to your physical well being. Even with a Castle Doctrine, such use of force is NOT morally correct, IMO.

2. Arguing with punks is like wrestling with a pig; you both get dirty but the pig likes it.

3. Letting the situation escalate is not the correct and "adult" thing to do.

4. Brandishing a weapon, or threating the use of lethal force, is letting the situation escalate. Better to say that you are going to call the police, retreat inside the house and then call the police.

Just my thoughts.

Virginia does have a Castle Doctrine, based on Common Law. Even though it is difficult to use, a search through the Virginia forum, especially for posts by "User", will provide you with a lot of information on this.

TFred

 

[TFred]

Risk of ejecting a trespasser WITHOUT sufficient force...

Well, the article does not explicitly say whether the suspect is actually camping on the victim's property or not... but the victim tried to forcefully eject him and look what happened...

TFred

Teen sought in stabbing
Police say man was walking his dog when he came across the suspect in some woods behind his Spotsylvania house.

Snips:

A Spotsylvania County man was stabbed multiple times early today after he confronted a young man who was camping out in the woods behind his home, police said.

The boy told the victim that he was supposed to be staying with a friend, but the friend’s mother wouldn’t let him into the house. Timm said the victim told the suspect that he could not stay in the woods and asked him for his parents’ contact information.

The suspect said he did not want his mother contacted and said he wasn’t leaving the woods with the victim. After a brief argument, the victim grabbed the suspect’s shirt and began pulling him toward his home.

Timm said the suspect responded by stabbing and slashing the victim repeatedly. One slash across the back opened a particularly large gash, Timm said.​

 

[skidmark]

newspaper may have confused "victim" and "criminal"

Given the information provided:

After a brief argument, the victim grabbed the suspect’s shirt and began pulling him toward his home.

Timm said the suspect responded by stabbing and slashing the victim repeatedly. One slash across the back opened a particularly large gash, Timm said.

I'm going to suggest that the young man may (very tentative "may" at that) have had a valid self defense claim that may or may not have gone all pear-shaped when he started stabbing/slashing. If the kid was not on the victim's property then the victim was the instigator of an assault/battery and/or abduction.

Rather than get into a law school casebook study of the various possible crimes committed by either of the players, let's focus on the fact that most of the time you are better off walking away and calling the cops to determine ion what way they should deal with the person whose action/behavior you do not approve of.

stay safe.