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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