Defending property in Virginia: Can I grip my gun?

[davidmcbeth]

Speaking of all this got me thinking. I watched a fellow officer put his hand on the top of his pistol, like as using it as a rest. I take because he or she is a officer that is OK? The gun was holstered the entire time

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Myself? I would assume he is going to shoot me at that point ... don't touch your gun unless you are planning on shooting it is my philosophy

 

[mpguy]

Myself? I would assume he is going to shoot me at that point ... don't touch your gun unless you are planning on shooting it is my philosophy

Agree with the philosophy. Just being a nosey cat I guess.

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[Walt_Kowalski]

This is why I hate it when these questions come up.

Yes, no, maybe, I doubt it!

If Bob is a whimpy little fellow with a broken arm and a heart condition...yeah, maybe he's justified.

Otherwise, flip a coin. There is no across the board answer.

Apologizing doesn't enter into it. Either he was in danger of death or serious injury or he wasn't.
Yelling and cussing is protected speech and coming toward him aggressively only becomes assault when there is a reasonable fear that he could be hurt. Even then, simple assault in itself doesn't justify use of a firearm. There has to be a little more.

That gun is NOT a magic wand that cures every situation. When it comes out there's a good chance that another soul's going a winging.

If you want to scare people, get a naked picture of Janet Napolanato.

I personally disagree with you. Hands and feet ARE deadly weapons. I've seen many people severely injured by them. If someone is approaching me, threatening me with violence, and I am carrying a firearm, I'm going to use that firearm to defend myself, before the person has the opportunity to take it from me, and use it one me.

I'd rather be judged by 12 than carried by 6.

This is my personal view, and not a reflection of the laws of the Commonwealth of Virginia.

 

[Glockster]

Two obvious conclusions are presented by this discussion: 1) I need to teach my dog to shoot as there are no restrictions on what a dog does with a firearm (Virginia's constitution doesn't preclude canine usage of a firearm, therefore it must be presumed to be lawful), and no found case law regarding dogs being prosecuted for either brandishing or discharge (of a weapon, but fail to bag could be serious trouble, and any and all hunting restrictions apply unless the dog's name begins with either the letter "Q" or "Z"); 2) Anytime someone with a vehicle realizes that it is about to be stolen, if they listen carefully they would be able to clearly hear said potential car thief claim that they intended to steal the vehicle so that they could then immediately commit vehicular manslaughter on any and all living things within a reasonable proximity, thereby precipitating the car owners belief in imminent danger of being killed.


No, I'm not serious about either of the above....just wanted to toss out my fair share of crazy scenarios that could then be explored. I'm just saying...is all.

 

[peter nap]

I personally disagree with you. Hands and feet ARE deadly weapons. I've seen many people severely injured by them. If someone is approaching me, threatening me with violence, and I am carrying a firearm, I'm going to use that firearm to defend myself, before the person has the opportunity to take it from me, and use it one me.

I'd rather be judged by 12 than carried by 6.

This is my personal view, and not a reflection of the laws of the Commonwealth of Virginia.

You might be right Walt...I think Southpark did a special on that:lol:

Personally, I don't plan on being judged or carried.

 

[marshaul]

Pepper spray, firehoses, or other less than lethal means should be ok. Maybe a territorial dog that would get right upset if someone tried taking his vehicle. Although I am not a lawyer so should ask one before acting on it...

---Use OC/pepper spray?
§ 18.2-312. Illegal use of tear gas, phosgene and other gases.
If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.
If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.
Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.

Interesting. So a person can't be shot for carjacking, but they can be fatally mustard-gassed.

Good to know.

 

[stickslinger]

This is why I hate it when these questions come up.

Yes, no, maybe, I doubt it!

If Bob is a whimpy little fellow with a broken arm and a heart condition...yeah, maybe he's justified.

Otherwise, flip a coin. There is no across the board answer.

Apologizing doesn't enter into it. Either he was in danger of death or serious injury or he wasn't.
Yelling and cussing is protected speech and coming toward him aggressively only becomes assault when there is a reasonable fear that he could be hurt. Even then, simple assault in itself doesn't justify use of a firearm. There has to be a little more.

That gun is NOT a magic wand that cures every situation. When it comes out there's a good chance that another soul's going a winging.

If you want to scare people, get a naked picture of Janet Napolanato.

Jeebus! Now there is an aweful image I'll never get out of my head. Thanks Peter

 

[Citizen]

Interesting. So a person can't be shot for carjacking, but they can be fatally mustard-gassed.

Good to know.

(chuckle) Wanta take bets on whether possession of mustard gas or phosgene is illegal under federal law? You won't get prosecuted by the state for deploying them in defense of property; but, I'll bet its 10 to 20 for possession federally.

 

[TFred]

Here's the stupid question of the day:

If lethal force is not authorized for the defense of property, why do all these laws say except "in protection of life or property?"

And "case law" is not the answer I'm looking for. How can any "case law" completely override the codified law as explicitly written in the Code of Virginia?

Perhaps the next question should be, if the courts have invalidated that part of the codified law, why haven't they fixed it?

::dumb face::

TFred

 

[marshaul]

(chuckle) Wanta take bets on whether possession of mustard gas or phosgene is illegal under federal law? You won't get prosecuted by the state for deploying them in defense of property; but, I'll bet its 10 to 20 for possession federally.

OK, so you can fatally gas them with carbon monoxide then.

 

[va_tazdad]

And

You may never use deadly force to protect property. If you are in your house and see someone breaking into your car, call the police. Do not go out there, and certainly don't go out there gripping a pistol.

4 days later a detective will call and ask you if you still need the police to respond.

That is what RPD did.

Although I agree with you, it is difficult to trust the police will show up after they have screwed the pooch so many times here in Richmond. Chesterfield is a bit faster responding, but not by much.

 

[user]

I always cringe when these questions come up.

Gripping your gun, pulling up your shirt, turning your hip to the person and doing a belly dance...are brandishing.

If someone is stealing your car, brandishing may or may not be illegal.

There is no simple answer.

Would I brandish if someone were stealing my car....try it sometime and you'll get the answer.

Actually, there is a simple answer. The use of deadly force is not permitted merely to protect personal property. Thus, the threat of deadly force is brandishing a firearm. No question about that. On the other hand, if you are in your car and someone attempts to take valuable personal property away from you by threats, force, or intimidation, that's robbery, and that would justify the use of force under the category of "stopping a serious felony in progress".

I do not recommend the use of threats of any kind at any time, and that's under both my lawyer and NRA instructor hats. If it is necessary to use deadly force, then take Tuco's advice, "If you need to shoot, shoot, don't talk." If you don't NEED to shoot, don't think about the gun, don't talk about it, don't gesture towards it, don't make any reference to it, and don't touch it. In the movies (and some of the NRA's PPOH instructional materials), people are depicted as taking control of a situation by holding a gun. In my opinion, that turns the situation into a shooting match, because the person you're trying to control may simply (and reasonably) assume that you intend to kill him, drop, and start shooting at you. And he'd probably have a good defense at trial when they charge him with the homicide.

 

[peter nap]

Actually, there is a simple answer. The use of deadly force is not permitted merely to protect personal property. Thus, the threat of deadly force is brandishing a firearm. .

The not so simple issue comes up with part B of Brandishing. Anything that resembles a firearm.
They make pepper dispensers now shaped like a gun. Bad idea IMO but popular.

I usually carry a Taser which is very gunlike. Both are less than lethal but still brandishing. Now for me...it's easy. If I pull the gun or Taser out of the holster, I'm going to use it...but I'm not going to pull it out unless I'm sure it's needed. Others will brandish.

 

[user]

Here's the stupid question of the day:

If lethal force is not authorized for the defense of property, why do all these laws say except "in protection of life or property?"

And "case law" is not the answer I'm looking for. How can any "case law" completely override the codified law as explicitly written in the Code of Virginia?

Perhaps the next question should be, if the courts have invalidated that part of the codified law, why haven't they fixed it?

::dumb face::

TFred

Don't forget that this is the state that first imported the Castle Doctrine; it was part of the common law in 1607, and is thus the law of Virginia today. Va. Code sxn's 1-200 and 1-201. In Virginia, appellate opinions refer to this branch of the Castle Doctrine as "defense of habitation". The reason you can defend your habitation with deadly force, absent any specific threat or felonious intent, is the risk inherent in what will appear to be a home invasion to the occupants. There is no similar threat with respect to personal property or real property beyond the curtilage; the cases don't say "no deadly force to defend property", they say, "no deadly force to defend MERE property". Defense of habitation is not defense of mere property, it's defense of the people in the property; and stopping "carjacking" which is a form of robbery, is not "defending mere property", it's defending the person from whom the property is being stolen from the risk of serious bodily injury inherent in the concept of robbery.

There was a guy who wanted to retrieve papers from his car which was being repossessed from his driveway. He went out and got in the car, but the repo-man started jacking the car up onto the truck. The guy took that as a threat and pulled out a handgun to make him stop. It did, but the car owner was convicted of brandishing and that conviction was sustained by the Va. Sup. Ct., on the theory that he was trying to protect his car (who knows, maybe that's really what he was doing) and you can't use deadly force, even in your own front yard, to protect "mere property".

As to the other question, the courts do not have the power to reject statutes. Instead, they "interpret", which is often much worse. Virginia is a common law jurisdiction, which means that the common law of England is the law of Virginia, unless changed by the legislature or the Constitution. But since the advent of Virginia's Constitution which was the first to separate the powers of government into three branches, the judiciary lacks any legislative power, unlike the Court of King's Bench which made up most of what constitutes the law of Virginia today. The Code is only a tiny bit of our law, which dates back to the Norman Conquest in 1066.

 

[Marco]

And he'd probably have a good defense at trial when they charge him with the homicide.

When I worked at a casino a Security Supervisor had taken a class teaching folks take down techniques using something similar to this: http://www.spyderco.com/catalog/details.php?product=6

When he asked my opinion about the tool/techniques, I explained that thing would get someone killed (shot) as it appears to be a knife.

 

[The Wolfhound]

you gave good advice

If some wingnut tried that device on me, the likely outcome would be serious bruises where I tried to impale him with his training tool. The dislocated elbow would be the same outcome in either case, sharp or blunt. I do not think "gun" first, but as I get older that may change.

 

[skidmark]

....

There was a guy who wanted to retrieve papers from his car which was being repossessed from his driveway. He went out and got in the car, but the repo-man started jacking the car up onto the truck. The guy took that as a threat and pulled out a handgun to make him stop. It did, but the car owner was convicted of brandishing and that conviction was sustained by the Va. Sup. Ct., on the theory that he was trying to protect his car (who knows, maybe that's really what he was doing) and you can't use deadly force, even in your own front yard, to protect "mere property".

....

Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567 (2000).

emerged with the keys as well as an unloaded rifle which he placed in a flower bed that was close to the vehicle. When Eustler again approached in a belligerent manner, the defendant retrieved the rifle and held it at his side. The defendant felt compelled to raise the rifle to his shoulder when he thought that Eustler was going to assault him. However, the defendant did not point the gun at Eustler until Eustler kept coming at him, at which time, Eustler "finally backed off." Eustler later called the police.

Handgun, unloaded rifle. Same-same.

But the explanation about why the Code of Virginia of 1950, as amended is not actually the law of the land, and why checking case law is so important, is probably the best legal education one can get outside of law school.

Don't know of any lawyer that does not use http://www.lexisnexis.com/en-us/products/shepards.page or something comparable. Most law school libraries have a subscription and you can do a search there on their dime. Or - you could use the law library at the prison.

stay safe.

 

[peter nap]

Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567 (2000).



Handgun, unloaded rifle. Same-same.

But the explanation about why the Code of Virginia of 1950, as amended is not actually the law of the land, and why checking case law is so important, is probably the best legal education one can get outside of law school.

Don't know of any lawyer that does not use http://www.lexisnexis.com/en-us/products/shepards.page or something comparable. Most law school libraries have a subscription and you can do a search there on their dime. Or - you could use the law library at the prison.

stay safe.

Every Circuit Court has a public law library also. One of the best kept secrets around.

 

[CharlesC]

Is it brandishing if a cop puts his hand on his gun?

Say I'm in Starbucks waiting for my latte open carring as usual an a couple of LEO's walk in. After a bit they notice I'm carring and one decided he wants to grip his gun and eyeball me while we wait for our order. Do I have a case of intimidation or brandishing by the officer?

I've seen cops do this and I've always felt it was a form of intimidation.

I don't want to even mention the thought that always comes to mind when I see them do this.

Thanks,

~ Charles

 

[skidmark]

Say I'm in Starbucks waiting for my latte open carring as usual an a couple of LEO's walk in. After a bit they notice I'm carring and one decided he wants to grip his gun and eyeball me while we wait for our order. Do I have a case of intimidation or brandishing by the officer?

I've seen cops do this and I've always felt it was a form of intimidation. Bingo! We have a winner.

I don't want to even mention the thought that always comes to mind when I see them do this. Little children have security blankets. Saggy-pants gang bangers are not just holding their pants up when they grab the front of their pants.

Thanks,

~ Charles

stay safe.