19 February 2010

The Castle Doctrine and Virginia

There are some basic rules that all lawyers learn in law school. First, there is a duty to retreat when faced with danger. Second, if the danger finds you in your house there is no duty to retreat, because the presumption is that you've retreated as far as any person should have to. Thus, the castle doctrine (a man's home is his castle) allows defense of habitation as an extension of defense of self. Of course every State has its own variations on these rules and Virginia looks like it's about to add some new wrinkles to its version.

History:

Virginia's common law has developed two types self defense which are in some ways broader and in other ways narrower than the castle doctrine. In "justifiable" self defense, a person is allowed to stand his ground anywhere, so long as he did not in any way provoke the aggression, and defend himself. In "excusable" self defense a person is somewhat at fault for the aggression and in this case he is required to retreat as far as safely possible before he can legally defend himself.1 This is further limited in that a person can only use "reasonable" force when attacked.2 Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property.

On top of all this is another line of cases which allow a landowner to order those illegally on his property to leave and if the trespasser does not leave to use "proper" force to expel the intruder from his land. However, this is limited in that the landowner is subject to a "breach of the peace in the outset" test. If there is such a breach the landowner may not continue to use force to expel the intruder. One case seems to say that this allows a property owner, who has given a prior warning to a trespasser on his chattels or realty, to threaten deadly force, but perhaps not to actually use it.3

General Assembly:

The Virginia House of Delegates has passed a bill which would enact a form of the Castle Doctrine over top of all this. It hasn't been considered by the Senate yet and who knows if it will pass and be signed into law and in what form it would finally appear. However, we do have the new statute as it would be if the bill was enacted in its current form:
§ 18.2-91.1. 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 the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and 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.
Threat Level Required:

This maintains the necessity of a threat against a person. There must be an overt act which makes the defender "reasonably believe" that a person is in "imminent danger of bodily injury." In this it might actually be more restrictive than normal justification self defense. Generally, in Virginia a person who attacks another with his hands is not presumed to mean to cause "injury"; instead, he is just imputed the intent to commit "harm." Of course, these are terms of art in Virginia law. Injury meaning serious internal physical damage (it's a "wound" if the skin is broken - see the post here). "Harm" doesn't seem to have been given a specific definition (at least not in cases I remember), but it has developed into a catch-all which could probably be defined as "pain, minor abrasions, and bruising."

The use of the term "injury" is a bit of untidy drafting; it really should say "wound or injury" to keep the courts from having to jump through interpretational hoops and avoid potentially confusing variant interpretations of terms of art as applied to different statutes.

Nevertheless, I doff my cap to the Delegates for drawing the line where they did. As written, the statute avoids the fairly common scenario of two Yahoos fighting in the front yard and the fight ranging into the residence. Since use of fists does not infer an intent toward bodily injury, the resident cannot legally shoot the other pugilist just because the fistfight crossed a doorway.

Level of Force Allowed:

What this statute clearly does is remove any restrictions that a "reasonable force" requirement might place upon a defender, once the requisite level of threat is reached. However, I'm not sure if this really accomplishes as much as it seems to. Anyone carrying a weapon which could cause bodily wound or injury would generally be presumed to be offering deadly force and therefore could be opposed with the same amount of force. As discussed above, an unarmed intruder wouldn't generally fall under this statute, because of the presumption that he is offering "harm", not "wound or injury." A physical attack can cross the line, but in that case the defender can already defend himself with deadly force under current law.

What This Statute Won't Do:

This statute is limited to the defense of people. It does not allow the use of deadly force in protection of property.

Additions Needed:

1) The language needs to be changed to say "bodily wound or injury."

2) I would like to see language put into it setting up certain presumptions:

a) "The victim of a rape is presumed to have a reasonable belief of danger to
life, even if the assailant is unarmed."

b) "If an intruder breaks into a dwelling after dark, the resident is presumed
to have a reasonable belief of imminent bodily wound or injury and may act
upon this belief without acting to verify or dispel it."


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1 See Foote v. Commonwealth, SEP90, VaApp No. 0484-89-3.

2 See Diffendal v. Commonwealth, JUL89, VaApp No. 1224-87-3.

3 Alexander v. Commonwealth, JAN99, VaApp No. 2136-97-3.

Hat-tip to the Office's blog.
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34 comments:

Bill Poser said...

Your suggested addition (2a) harks back to the ancient Roman law: Si nox furtum faxit, si im occisit, iure caesus esto, which allows a householder to kill anyone who breaks into his house at night.

Anonymous said...

I have a question and how you would interpret what the outcome would be at a trial court as Va laws are now. Your in your house in the country surrounded by 1 neighbor and 100s of acres it is about 8pm on a Sunday night and your just relaxing with your girlfriend and watching a movie and then you hear some knocking/noise on the exterior far back side of your home and around a window, you have no outside lights on that part of your home.You decide to grab your handgun and go out and investigate while keeping the handgun in your hand, you turn the tack light on that is on the front of your handgun and basically use it like a flashlight to see what is going if you ended up confronting an unkown person he runs off....Would that constitue Brandishing a firearm? By the statues as they are now how I interpret them is that is threatning deadly force and you could be guilty of a brandishing charge.Please respond with your thoughts

Anonymous said...

Well did you announce that you had a gun? Did you say anything at all to the person?

If that person did not see or was told that a gun was present then you are the only one that knows.

But, I do believe that given what you described in your story that you have, by the letter of the law, did in fact brandish your weapon.

Anonymous said...

Someone who breaks into your home uninvited in the middle of the night is not there to sell you girl scout cookies but to rob/kill or rape anyone in your house, the keywords here are breaks in uninvited!

john said...

Maybe I am missing a finer point involved here, but can I be guilty brandishing a firearm if I am in or at the entrance of my own house?

Ken Lammers said...

Yes. There is no exception to the brandishing law based upon your location at time of offense.

Anonymous said...

A drug dealer came to my boyfriends house to collect money for a drugdebt that my boyfriend owed him. He entered my boyfriends house with the intention to cause bodily harm with a pipe to my boyfriend. My boyfriend killed this drug dealer in the house after he took the pipe from him and struck him back in self defense. My boyfriend has been imprisoned for first degree murder. It wasn't planned, he was under the influence of this drugdealers drugs and the drug dealer threatened to kill him because he owed him money. My boyfriend never intended to kill this drugdealer and wouldn't harm a fly. He was sentenced to life in prison. Just not seem fair that this drugdealer would've caused many more drug deaths on the street in the first place. where does this castle doctrine leave my boyfriend.

Anonymous said...

Your boyfriend disarmed the dealer. At that point danger ceased to exist unless the dealer proceeded to pull out a knife. A kick or punch to the face or a solid strike with the pipe to the dealers body would have been enough to render him harmless but remain alive; unnecessary force and attacking someone who is not presumed a threat any longer is not justifiable. Look at it like this. A guy breaks into your house with a gun. You scare him, he drops the gun and runs for your front door. Before he safely makes an exit you pick up the gun and shoot him in the back. You just murdered someone.

Anonymous said...

"Before he safely makes an exit you pick up the gun and shoot him in the back. You just murdered someone."

Not on any jury I'm a part of.

George Semper fi said...

"Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property."

Is " Generally " a key loophole here??? ie... A 100 pound lady or a frail elderly person confronted by a 200 pound thug using only his fists or a flash mob using only fists ???

Ken Lammers said...

Yes, factual situations exist wherein mere fists can be a threat to life and in those cases the use of deadly force is allowed. Of course, whether a defender is so overborne by the mere physical presence that deadly force is allowable is a question for the jury to decide and the facts are rarely as clear cut as the circumstances you described.

Jimmy said...

Criminally in many instances even you might be found not guilty or killing an intruder or for defending yourself and/or love ones with the parameters of the law. Civilly you can still be put through the ringer, family of the deceased intruder can just bankrupt you by dragging you behind through the court system, from what I have read in different places this is what really scares me.

Ken Lammers said...

I think this is a rare happening. Most of the time the person shot would not have the resources to pursue a case and be unlikely to win.

Anonymous said...

Here's a scenario: My husband is at work, overnight. A man breaks into our home while my daughter and I are sleeping upstairs. I hear him break in, so I grab the shotgun, take cover, and wait for him to come up the stairs and in to my bedroom. It is dark, so I cannot see whether he has a weapon or not. I shoot him in the upper torso, killing him. At this point, I have killed a man who may or may not have been armed, and I was "IN FEAR OF MY LIFE AND MY DAUGHTERS LIFE" for not knowing whether he was armed, and what his intentions were. It is safe to assume that a person breaking into a home to rob it, usually won't come upstairs where the residents are asleep, unless they have the intention to kill/rape them. By shooting a "potentially" armed assailant in my room after he has broken into my house in the middle of the night, have I committed murder, or would it be considered justified?

lemmyh2 said...

So I guess it's impossible to kill someone with your hands alone? I guess I would go to jail if someone was beating or strangling me or my family members to death because I use a gun to stop the attack.

Ken Lammers said...

If your local Commonwealth Attorney chose to prosecute you, I think the jury would have to decide whether or not you engaged in a reasonable use of force by shooting the intruder. It is not a per se safe assumption that the intruder heading upstairs intends murder or rape. Burglars seek jewelry and electronics from bedrooms and they seek medicines (pills) from bathrooms.

Ken Lammers said...

No, it's not impossible to kill using hands, but it usually takes something more than is seen in a normal fist fight and the presumption is that use of hands is not lethal.

Chuck said...

Ken - It doesn't take much more than a normal fistfight to kill using hands. A good fight can incapacitate an individual, and a couple fingers locked around a throat can end a life fairly quickly. I don't know how you can dismiss killing someone with bare hands so quickly.

Anonymous said...

JSTRM says: if they cross the threshold, I warn and shoot, not necessarily in that order.

VA Senate needs to take action to allow the people that pay their salaries to protect themselves without fear of civil or criminal action.

Ken Lammers said...

Chuck,

I am not dismissing the use of hands to kill. It is possible, but far from what is typically seen. I've seen thousands of fist fight cases in court without any serious injury or wounding. In fact, most fist & foot cases I've seen where there have been actual injuries would be more akin to manslaughter cases (and are if the person dies) in that someone was knocked down hit their head, landed wrong breaking a bone, fell into a bonfire, etc.

When I say that the use of hands is presumed not to be lethal I am stating the legal presumption of lack of lethal intent in Virginia law (and I suspect most States' law) which the prosecutor or defendant who wants to show lethal use was intended must overcome.

Anonymous said...

As a father I have repeatedly taught my lil girl and lady to use all firearms in my house. I have them all around jus in case a bad scenario ever pan out. I live back in woods far off main road and my family is expected to defend the family in any sutuation and that especaily means anyone breaking in with any intentions...

Anonymous said...

Do Virginia courts (or statutory law) recognize rape as justifying the use of deadly force, whether on the theory that rape creates a reasonable fear of serious bodily injury, or any other theory?

What about the use of deadly force by a third party to protect another person from being raped, where there has been an overt act indicative of imminent danger, under Virginia law?

Thanks.

Anonymous said...

I fail to understand why I should be expected to be a capable fist fighter against an intruder in my home who's fist fighting capabilities, and motives are completely unknown to me. Why should I risk being knocked down, hit my head, break a bone and fall into a bonfire. I am in my home!!! The risk will be completely the intruder's.

Anonymous said...

i couldnt agree more. i also think that if laws were changed giving home owner the right to shoot without fear of getting im trouble. it would discourage criminals from breaking in to your house in the first place. my home is my castle and if someome breaks in im not going to risk mine and my familys lives to find out if they have a weapon, im going to shoot first.

Anonymous said...

It does seem senseless that one could have the supposed safety and security of ones domicile breached and there be a requirement that one not use whatever force available to protect/restore that safe, secure environment.

Anonymous said...

What if you warn an intruder that has broken into your house and is coming upstairs that you have a gun and if they continue to proceed you will shoot to kill. And then said intruder continues to proceed upstairs and you shoot and kill him. Is that justifiable homicide?

Anonymous said...

The USMC trains Marines in specific fields to terminate their enemy with their hands in less than 3 seconds...so do you still think that if attacked by a person using only his hands that you are going to be capable of fihhting back and come out a winner...Duh..I don't think so...Maybe a demonstration using lawmakers as victims would prove the point... yes ..hands do and can murder an untrained person...

Anonymous said...

1. Is my assumption that the firing of a "warning" shot(s) is illegal in Virginia?
If you make the decision to arm yourself with a firearm with intent to shoot an intruder in your home, then you should only shoot to stop the threat. "Warning" shots can too easily find an innocent target.

2. It seems reasonable and prudent to assume that an intruder who breaks into one's home at night would have a reasonable expectation of the home being occupied by the residents. Therefore it seems reasonable for the resident to assume that the intruder is in fact armed with some sort of deadly weapon.
Correct?

John R. Wright said...

The flip side of this coin is that by going to the castle doctrine of states like Texas, Oklahoma and Florida, you protect the innocent person doing the self-defense shooting, i.e., relieve him of criminal and civil law liability. But at the same time others will try to use the laws to cover criminal acts. I am not wrong to make that claim, and the facts to support it are accumulating. The Zimmerman/Martin incident in Sanford Florida may have involved vigilante motives. So also did the Joe Horn killing of two Mexican burglars in the Houston area. My own grandson was shot to death in Oklahoma, unarmed, less than a week before his court date as a prosecution witness, yet the same prosecutor who was going to use him as her witness turned the shooter loose and ruled self-defense! What did he witness? Interstate drug trafficking between McKinney Texas and Calera Oklahoma and an associated homicide that took place only hours after that movement of drugs across a state line. Apparently the FBI or the DEA was never involved (perhaps never informed) By some hearsay accounts the same prosecutor or an assistant also illegally released the one who committed that first murder. Then my grandson was killed about six months later, which prevented him from testifying. His own toddler daughter was in the house where he was killed, probably as a lure to get him there. Supposedly the Oklahoma law doesn't even apply when a child or grandchild of the one killed is present. Sometimes the castle laws work the way they are supposed to, but sometimes they don't. Check out my blog on castle law failures at www.cliffs-of-cotter.com

John R. Wright

Anonymous said...

Ok..what about this, I am fully disabled, I have titanium rods and screws in my back. Just picking up one of my kids causes debilitating pain. I cannot see anybody, big,small,thin, or muscular attacking me with just fists or kicks, and me being able to defend myself by the use of fists or kicks. All it would take for anybody to over power me and render me defenseless would be just a push that would make me turn in an abnormal manner, considering my condition. The only way I can defend my self or my children (after trying to avoid the conflict in a reasonable manner)would be to use a fire arm. It is my honest opinion and fear, that a simple hand attack from anybody could result in serious permanent bodily harm and or failure of back "hardware repair", resulting in further and worse injury to my back.With this in mind, after trying to avoid an attack without positive outcome, would me using deadly force to defend myself or my children result in a murder charge instead of a self defense decision??

Anonymous said...

If lawmakers were put in a situation where they needed to defend their lives or their family's lives the laws would be much different.

Anonymous said...

As a Virginia resident, I have to put my 2 cents here. I find it simply outrages and offensive that myself and/or family have to flee from the safety of "INSIDE" our home to the safety of "OUTSIDE" our home because of an uninvited intruder gaining entrance to my home by illegal means such as breaking and entering. Fleeing to the outside is not guaranteed to be anymore uneventful that staying inside. The LAW itself is not written in a way that defines reasonable force by definition. It is written more like, just try whataver you think works at the time, then we will decide if you should be tried for murder or not.

CJ said...

§ 18.2-91.1 was not enacted.

Ken Lammers said...

Correct and none of the similar bills offered since has passed either.