The law of self-defense (in my state at least)

I would like to start a discussion on self-defense, and I want to give you the law of self-defense in my state (Virginia) as an example. Virginia is a common law state, and we have used the self-defense standard we adopted from the Common law when our state was founded. It may not be perfect, and it may not apply to you if your state’s laws are different. But I have found that understanding the basic common-law principles helps people put events and news stories in perspective. So with that in mind, here is an explanation of the common law of self-defense as applied in my state….

Acting in self-defense means that you are intentionally inflicting fear, harm, or death upon someone—and that you claim to be justified in doing so. For this reason, the first principle of the law of self-defense is it is the law of necessity. Self-defense is an act that is forced upon you by the actions of others, and it is not a right of retaliation.

These cases arise when you harm someone else, and law enforcement chooses to charge you with a crime. Say, for example, a man shoots and wounds someone, and he is charged with the felony of malicious wounding. He claims a justification for the shooting of self-defense. You are chosen as a juror. You will be given jury instructions that explain the law to you—in this case, the vital element of state of mind. Here is what the jury instructions would look like.

The crime requires proof the defendant acted out of malice when he shot someone. Malice is defined this way:

THE COURT INSTRUCTS THE JURY THAT malice is the state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate willful and cruel act against another, however sudden.

Virginia also recognizes “implied” malice, which can be inferred from the use of a deadly weapon:

THE COURT INSTRUCTS THE JURY THAT you may infer malice from the deliberate use of a deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice existed. A deadly weapon is any object or instrument, not part of the human body, that is likely to cause death or great bodily injury because of the manner and under the circumstances in which it is used.

Virginia also recognizes that fists and feet can be deadly weapons depending on how they are used. Counter-balanced with the above instruction is a right to arm yourself instruction that says you cannot infer malice because someone armed themselves against an attack:

The Court instructs the jury that when a person reasonably apprehends that another intends to attack him for the purpose of doing him serious bodily harm, then such person has the right to arm himself for his own necessary self-defense and if he has reasonable grounds to believe that an attack will be made upon him then no inference of malice can be drawn from the fact of such preparation.

So here is the starting point. As a juror you are required to look at what happened and decide whether the defendant acted out of malice. If you believe he did, then he is guilty.

His defense is self-defense, which is a “legal excuse or justification” that negates malice. After all, if you are legitimately acting in self-defense you are not acting in anger, hatred, or revenge but fear for your own safety. Your task is to decide whether he acted in self-defense or whether he acted maliciously. Here is what you will be told about the law of self-defense….

The Common Law recognizes two forms of self-defense: Justifiable self-defense (no fault) and Excusable self-defense (where you are partly to blame for the conflict)

Justifiable self-defense is also referred to as “stand your ground” self-defense. I know there has been controversy recently with some states choosing to recognize “stand your ground” self-defense, but in reality it has been a part of the common law (and thus a part of several state’s laws) since the founding of the nation.

Now assume our defendant claims he was without fault in provoking the conflict, and you believe him. Here is the self-defense instruction:

THE COURT INSTRUCTS THE JURY THAT if you believe that the defendant was without fault in provoking or bringing on the difficulty, and that the defendant reasonably feared, under the circumstances as they appeared to him, that he was in danger of harm, then the defendant had the right to use such force as was reasonably necessary to protect himself from the threatened harm. If you further believe that the defendant used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

But say, for example, there is evidence that the defendant provoked the conflict (say he punched a man in a parking lot, and the man went to his own car, got a knife, came after the defendant, and the defendant shot him). In this case, the defendant would have to “retreat to the wall” before he could act in self-defense. Here is the jury instruction:

THE COURT INSTRUCTS THE JURY THAT if the evidence showed the defendant was to some degree at fault in provoking or bringing on the difficulty, and if you further find that when attacked:
1. He retreated as far as he safely could under the circumstances;
2. In a good faith attempt to abandon the fight;
3. Made known his desire for peace by word or act;
4. He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; and
5. He used no more force that was reasonably necessary to protect himself from the threatened harm, then you shall find the defendant not guilty.

So you can see how the law of self-defense changes if you are somewhat at fault for causing the conflict. Sometimes there is a conflict in the evidence about whether the defendant was at fault or not. In these cases, as a juror you would be given both instructions, you would be told to make a finding of whether the defendant was at fault or not, and told to apply the proper instruction for self-defense based on your finding.

Another important factor in self-defense is the amount of force used. Both justifiable and excusable self-defense have a use of force restriction upon them (again, because self-defense is the law of necessity). Here is the companion instruction that explains how much force may be used—in particular, it lays out when deadly force may be used:

THE COURT INSTRUCTS THE JURY THAT the amount of force used in self-defense must be reasonable in relation to the harm threatened, and that the defendant is not allowed to use deadly force in self- defense unless he reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm.

Self-defense is not a right of retaliation. For example, if you are at a party and a man draws a knife on you, you cannot go out to your truck, get your gun, and come back in to confront him. Similarly, you must stop when the threat stops. You can’t chase someone down who threatened you and shoot them in the back.

These are the instructions you would get. In addition, the most important instruction would be the proof beyond a reasonable doubt instruction, which would tell you the defendant is presumed innocent, the charge must be proved beyond a reasonable doubt, and any doubt about whether it was maliciously or done in self-defense must be resolved in favor of self-defense.

You can also act in the defense of others. Similar rules apply. You can only use an amount of force that is reasonable under the circumstances. Deadly force cannot be used to defend others unless you reasonably fear that the person you are defending is in danger of being killed or suffering great bodily harm. Defense of others is viewed from the mind of the person acting to defend another. When defending another, you must reasonably believe that the person you are defending is a faultless victim of the assault you are defending against.

Here is a case on point:

Thus, under the majority view, in order to justifiably defend another, the defendant must reasonably believe that the person being defended was free from fault; whether the defended person was, in fact, free from fault is legally irrelevant to the defense in those jurisdictions. This view is based on the principle that one should not be convicted of a crime for attempting to protect one whom he or she perceives to be a faultless victim from a violent assault. Under this approach, the policy of the law is to encourage individuals to come to the aid of perceived victims of assault. We find this position to be well-grounded in principle and policy. Accordingly, we hold that the law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray. Foster v. Commonwealth, 13 Va. App. 380, 386, 412 S.E.2d 198, ___ (1991) (NOTE: the case says the “majority view” because the Court reviewed the law in all 50 states and came to the conclusion that the majority of states treated defense of others this way)

But can I use deadly force to defend my property? Say I come home from vacation and see a man running away from my back door with my TV….You can exercise some degree of force to recover your property, but you can never use deadly force to recover property. In Virginia, a person has NO RIGHT to use deadly force solely to defend his property. This applies where you are only defending your property and NOT defending yourself or your family.

But what if I just threaten the use of deadly force? Say I pull my gun and run someone off who is breaking into my unoccupied car in a parking lot. In Virginia a person has NO RIGHT TO THREATEN THE USE OF DEADLY FORCE solely to defend his property. These cases are extremely rare, however, because they generally require someone to complain about it—and the thief, having gotten away, is not going to call the police and say “look, I was breaking into this guy’s car and he came out and pulled a gun on me….”

The case that caused this shift in the law of Virginia came about when a man pulled a gun on someone he thought was breaking into his car, and it turned out he was there to repossess it. The repo agent made a complaint that the owner brandished a gun, and the Court said this:

Even if [the] actions [of the person threatening the defendant's property] were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said:
The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness and a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty." See, also, 1 Bishop on New C. L., secs. 839, 841, 850.
However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree. Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Commonwealth v. Alexander, 260 Va. 238, 242, 531 S.E.2d 567, ___ (2000).

What about my home? There are cases involving a mix of property and self-defense, particularly when you are home at night and someone breaks in. Virginia recognizes the common law “castle doctrine,” which is defined this way:

“Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like — cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, ‘a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life’ * * .”

“1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *.”

“2. Putting out of the Castle. — If a man enters another's dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.

* * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwellinghouse, will constitute felonious homicide.”

Fortune v. Commonwealth, 133 Va. 669, 686-687, 112 S.E. 861, ___ (1922)

This is a rough summary of the law of self-defense in Virginia. Please not the law may be different in your state.

 

For a hypothetical pertaining to the use of deadly force in defense of property, or other material goods. Let us say the property currently in the process of being stolen is not a television but rather a firearm, something legally recognized and classified as a deadly weapon. What is the standard then? Does the standard change if the owner knows for certain that the firearm being stolen is not loaded, but easily could be at some point in the future, and potentially used feloniously against another?

 

States have such varying laws, it's hard to have an educated discussion. In Texas, we can defend our property and have no "duty to retreat" as long as it is legal to be where we are and are afraid that we have no way to recover our property. It leaves the door open to vigilanteism, but it is not abused as much as it would be abused by those who depend on lack of stand your ground laws to get away with property.

I would have a problem with an armed robber leaving with my wife's purse or my wallet. We would be vulnerable to identity theft on top of credit card fraud and loss of valuables. Letting them get away would be allowing me to be robbed again and letting the BG know where I live. If I can stop the guy, I would rather shoot him than face the chances of him attacking my family again. (on line or in person at my house)

 

Glad I live in a Castle Doctrine State. In FL, it is presumed (and legally so by the law) that anybody burglarizing an occupied dwelling is there for more than just a property crime, and lethal force is allowed to be used in that case. That extends to automobiles and RVs.

 

Florida's use of deadly force statute is much less convoluted and easier to understand.

776.012
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

 

Very similar to Texas.

 

Many States have essentially made it illegal for people to defend themselves. Or if people do defend themselves, even if they did not actually break the law, they are being routinely arrested or having their carry permits denied. In other words, they have the right to defend themselves, but only once.

 

Citation of facts upon which your position is based please.