VCDL's LOOK AT THE CASTLE DOCTRINE FOR VIRGINIA

[peter nap]

Problem is, that really ain't gonna happen. Nothing in any statute is going to stop people from filing criminal charges or civil suits. Anyone can sue anyone at any time for any reason, good reason, bad reason, or no reason at all. And anyone can go to a magistrate and swear out a complaint. I read one state's new "castle doctrine" statute that purports to limit the ability of a person to file suit against someone who defended himself, his home, and his family with force over the injury or death to the attacker. But even that won't work. Because anyone can file suit. The question is always whether one has a good defense to the suit or charge.

As I've been working on this castle doctrine stuff, I've been persistently attacked by Richard Gardiner, formerly NRA general counsel, who keeps saying there is no "defense of habitation" defense, and challenging me to find him a case from the Virginia Supreme Court in the last fifty years in which someone raised that defense and the court issued an opinion on the subject. Fact is, I've sent him opinions on top of opinions that make reference to it, to the castle doctrine which it implements, and to the same idea in different words (right to defend the home, etc.). But there has not been any such appellate opinion for a really long time. He takes that as proof that there is no such thing. What it actually proves is that where there is such a good, well-founded, and historically authoritative defense, (1) cops don't bother to bring charges; (2) magistrates don't bother to authorize warrants; (3) prosecutors will not prosecute; (4) lawyers will not file suit; and (4) even if none of that is true, the person will win at trial. The only way an appellate opinion is generated is if someone appeals! That means someone has to have attempted to use "defense of habitation" as an affirmative defense at trial, lost, and appealed up through the layers of courts above the trial court. But that hasn't happened.

There is no opinion anywhere that I've been able to find, conclusively finding that the sky is, in fact, blue. That must mean that it isn't really blue, right? Either that, or no one's bothered to have the case tried and lost, such that there is an appellate opinion on the subject.

Here's my point: the best and strongest defense one can have against the trouble and aggravation of litigation is a statute making it clear that you've got a good defense at trial. That way, it is extremely unlikely that anyone will cause trouble, and secondly, it'll all be over pretty quickly and with a minimum of fuss and expense. Even if the statute says, "immunity from civil prosecution", that doesn't mean someone can't file suit against you. There is no magic. But you can, and should, reduce the exposure.

I'm still in the "If you say so it must be true" field Dan and that's based on the information I've been able to glean from the arguments although I assume there are volumes that have been written I don't know about.

Since your version WILL be introduced next year unless you say differently, I have one question. Assuming this years bill is signed into law, will this supersede it or will there be additional work to do?

 

[user]

...Since your version WILL be introduced next year unless you say differently, I have one question. Assuming this years bill is signed into law, will this supersede it or will there be additional work to do?

Boy, that's a good question. And optimistic. Justifiably so, I hope. Generally, when two statutes address the same topic without a formal repeal of the earlier statute, the two are taken as intended to be read together, with ambiguity resolved in favor of the more specific controlling over the more general. That means that courts' "interpretations" can go just about anywhere, since they're good at finding ambiguity in places where no one else can see it. In this case, (1) I really hope SB4 and HB48 get killed in conference committee; (2) they won't be passed by either body; (3) if passed, they get vetoed; and (4) if approved, that they be repealed. What I would not want to see happening is a court saying that because the NRA proposals contain "more specific language" requiring that a homeowner meet the standards of two different defenses at once before he can have any defense at all controls over the "more general language" in my proposal that says what each of the defenses consists of.

I think my proposal is a "nice to have" but it's sort of icing on a cake that already exists. But HB48 and SB4 are positive evil and must die.

 

[peter nap]

SB4 passed by for the day.

 

[mk4]

dangit!

hb48 passed the senate (w cmte substitute), 24 to 16.

YEAS--Black, Blevins, Carrico, Colgan, Garrett, Hanger, Martin, McDougle, McWaters, Newman, Norment, Northam, Obenshain, Petersen, Puckett, Reeves, Ruff, Smith, Stanley, Stosch, Stuart, Vogel, Wagner, Watkins--24.

NAYS--Barker, Deeds, Ebbin, Edwards, Favola, Herring, Howell, Locke, Lucas, Marsden, Marsh, McEachin, Miller, J.C., Miller, Y.B., Puller, Saslaw--16.

=====

HOUSE BILL NO. 48
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee for Courts of Justice
on February 15, 2012)
(Patron Prior to Substitute--Delegate Bell, Richard P.)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-223.3, relating to self-defense and defense of others.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-223.3 as follows:

§ 8.01-223.3. 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.

This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law.

 

[2a4all]

Just a point:

I believe in those two lines you have summed up the prevailing motive that everyone (including "us", if you remember the results of that legislative survey I put out a couple months ago) has as a reason to codify a Castle Doctrine type law.

We want the protection of what we have in Common/Case law history, but without having to go through the risk and expense of the legal system to get it.

TFred

Perhaps something like:

"No person who has lawfully acted in self defense or in the defense of another against the threat of serious bodily harm shall be subject to civil liability for any consequences of such actions."

would be a good start.

 

[markand]

Language was added to HB48 before passage:

"This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law."

Does this "fix" it?

 

[peter nap]

Language was added to HB48 before passage:

"This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law."

Does this "fix" it?

I think that's Dan's addition which helps I think.

 

[markand]

I think that's Dan's addition which helps I think.

If that's Dan's fix, I feel much better, but he just used the language "positive evil" just a few posts prior. The steamroller momentum these bills were gathering was of concern.

 

[2a4all]

Perhaps something like:

"No person who has lawfully acted in self defense or in the defense of another against the threat of serious bodily harm shall be subject to civil liability for any consequences of such actions."

would be a good start.

Language was added to HB48 before passage:

"This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law."

Does this "fix" it?

Not for me. I was actually thinking that my statement would replace SB4 & HB48, as it doesn't limit any of the circumstances to specific situations (dwelling), and puts a barrier in front of the civil issue, which seems to be a major point of concern.

 

[user]

I think that's Dan's addition which helps I think.

Nope. I did write something for VCDL, but my version was rejected. This version doesn't fix it. Keep in mind that what that language will do will be controlled by the more specific language in the statute itself - so it will still eliminate defenses to criminal actions, and will still require the homeowner to meet the requirements of both self-defense AND defense of habitation before he can take action. Put it this way, the amendment will either (1) do nothing at all to fix the castle-doctrine elimination bill or (2) completely negate the bill, depending on the whim of a court. In other words, there will still be litigation where there wasn't a need for it otherwise, and it will create more uncertainty than ever before. It still stinks, and the only cure is to kill it dead. In my humble opinion.

 

[peter nap]

Language was added to HB48 before passage:

"This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law."

Does this "fix" it?

This does NOT fix it. It makes it less damaging.

 

[mk4]

It still stinks, and the only cure is to kill it dead. In my humble opinion.

exactly! i'm hoping that can happen in conference, where i read it's now headed. or is that wrong?

 

[peter nap]

Nope. I did write something for VCDL, but my version was rejected. This version doesn't fix it. Keep in mind that what that language will do will be controlled by the more specific language in the statute itself - so it will still eliminate defenses to criminal actions, and will still require the homeowner to meet the requirements of both self-defense AND defense of habitation before he can take action. Put it this way, the amendment will either (1) do nothing at all to fix the castle-doctrine elimination bill or (2) completely negate the bill, depending on the whim of a court. In other words, there will still be litigation where there wasn't a need for it otherwise, and it will create more uncertainty than ever before. It still stinks, and the only cure is to kill it dead. In my humble opinion.

Thanks Dan!
It's hard to keep this all straight.

The fight continues.

 

[2a4all]

IIRC, one (or more) Lamestream Media outlets referenced via links on here reported that these bills (SB4 & HB48) were headed to conference, where they were expected to die.

Given the majority vote margins they received in their respective chambers (before & after crossover), this doesn't seem likely.

Is VCDL opposition too little too late?

 

[1911 Enthusiast]

I did write something for VCDL, but my version was rejected.

Well that's just ducky! Any background on the rejection decision you'd like to share? For starters, were your suggested changes rejected by the VCDL leadership? Or by the patrons? Or the committee?

And what's the status of the entire bill you wrote which was posted online earlier? Is it still in consideration for next year if this session's Castle Doctrine bills are finally killed off?

 

[nuc65]

dangit!

hb48 passed the senate (w cmte substitute), 24 to 16.

YEAS--Black, Blevins, Carrico, Colgan, Garrett, Hanger, Martin, McDougle, McWaters, Newman, Norment, Northam, Obenshain, Petersen, Puckett, Reeves, Ruff, Smith, Stanley, Stosch, Stuart, Vogel, Wagner, Watkins--24.

NAYS--Barker, Deeds, Ebbin, Edwards, Favola, Herring, Howell, Locke, Lucas, Marsden, Marsh, McEachin, Miller, J.C., Miller, Y.B., Puller, Saslaw--16.
....

The problem is that Garret sent me a response with, oh we fixed it so it doesn't change what already exists. I think they really believe themselves...

 

[peter nap]

Well that's just ducky! Any background on the rejection decision you'd like to share? For starters, were your suggested changes rejected by the VCDL leadership? Or by the patrons? Or the committee?

And what's the status of the entire bill you wrote which was posted online earlier? Is it still in consideration for next year if this session's Castle Doctrine bills are finally killed off?

I don't know the whole story 1911 but it is a delicate subject right now.
VCDL, like every organization, has it's good points and bad. As a member, I don't want them to go into the NRA file, as gunowner, I don't want bad legislation and as someone that has the utmost respect for User....I don't want to put him in the middle.

I'm working on killing this before it's signed into law but I'm afraid it's a little late. We will see.

I have a full schedule today and night but if you'll PM me I'll try to fill you in on the plans.

A number of members here and OV members are working on introducing a bill for next year that failed to go anywhere this session.
Unless User objects, his bill will be added to our list.

 

[user]

Here's the only information I got on the issue of the language of the amendment:

Mike's language is better, since it is a rule of construction. Because the statute is somewhat supplanting (and excluding) existing law (by removing the requirement that a defendant present evidence that he had a reasonable fear of imminent death or severe bodily injury with a requiremet that he only present evidence that he had a reasonable fear of imminent bodily injury), by using the words "supplant" and "mutually exclusive", the language may void (or at least confuse) the effect of the new statute.

Richard Gardiner

Can't say as how I quite follow that, other than that he didn't like some of the words I used. Regardless, I am now convinced that the amendment can only mean one thing. The courts always say the legislature is presumed to know how to write statutes, and that there can be no assumption that makes a statute into a nullity. Thus, if taken literally, the amendment sort of means, "never mind what we just wrote, we didn't mean it.", but that would run afoul of the canon of construction. So the only way to interpret it is to assume that the first two paragraphs are valid and that the amendment really means, "other than what we've said here." In other words, it's the amendment that's a nullity, not the text of the original bill.

I think we're sort of back where we were. Elimination of all criminal defenses, elimination of the right to use the defenses of self-defense, defense of habitation, and stopping a serious felony in progress, and having to prove the elements of the combination defense to a matter of scientific certainty.

"I've waited thirty years to tell you what I think of you, Elvira Gulch, but now, well, being a Christian woman... I CAN'T SAY IT!"

By the way, I've put a revised copy of my proposal on my website for download as a PDF; I added a footnote saying where I think it ought to go in the Code, and a commentary on the law of personal defense in Virginia as it exists now, and why it supports the proposal I've written.

Personal Defense proposal with commentary

You can also look at www.VirginiaLegalDefense.com, scroll down below the picture of the mailbox and click on the appropriate link which will get you to the same document.

 

[BillB]

59 pages - wow!

 

[Fenris]

Sometimes you don't appreciate what you had until you lose it.