Friday, March 9, 2012

What Happened to Virginia's "Castle Law " ?

       As simply as I can put this, Virginia Common Law evolved a little differently than state law in some places. Remember that the Virginia Legislature is the oldest continuously and presently operating body of lawmakers in the US, and possibly beyond.     In Virginia Law, one is permitted to stand ones ground in a self defense situation, providing he did nothing to provoke such aggression. We are also expected to use only the amount of force which is reasonably required to repel such aggression. This applies generally to the protection of people, and not property.   When one is in one's home, and is threatened by an aggressor, then we may use reasonable force to repel and attack or prevent injury to family or in a sense, property as well.
              In the last few months, the Virginia legislature tried to pass a "Castle Law" which would in essence, lie over top of Virginia's pre-existing Common Law.   The House of Delegates, therefore passed this:

     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.


     The positives of such a law would be that no civil action or lawsuit could stick, should the family of your robber or attacker sue you later for killing their son, husband, or brother etc.

  Here are some of the criticisms as well elucidated by:

The writing within the two sets of undulating lines is solely the work product of Ken Lammers.

 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."


  From my standpoint, the issue here is that under current Virginia law, depending upon how voracious the prosecutor in your jurisdiction might be, that if you justifiably shoot and kill and intruder in your home, that although you are unlikely to be convicted when it is demonstrated that you shot to stop an individual who represented a threat to your life in your home, that you still will be arrested, jailed, will sit before a Grand Jury, and will lose a fortune to a legal team before your acquittal.
      I don't want to see people shooting one another in their home without legal recourse, but I do want to see a measure of legal protection for those who shoot within their own homes in order to save their own lives or those of their children. Experts are not sure that present Common Law in Virginia coupled with the present verbage of the Virginia proposed "Castle Law" will do that.  As a result, early this month, the Castle Law in Virginia was voted down. It was felt that Virginia's Common Law is already strong on certain points and that this is therefore unnecessary as presently written.
        I don't know how I feel about this.   I want people prosecuted when they inappropriately use firearms, just as I do when they inappropriately use knives or baseball bats.  However, I want some measure of legal protection when I am forced to stop a burly intruder in my home who has braved the multiple acreage, the dogs,  the gates, the fencing, and the security system.  Chances are, he did not break in to have tea.


Matt said...

I started on a longer comment but decided not to as it would most likely turn into a rant. :)

However allow me to say, I find that the very idea that we even need a law to protect ourselves from criminal and civil prosecution while protecting ourselves only goes to prove the idiocy of the anti-gun crowd.

JaneofVirginia said...

I agree with you Matt. I am in my house and I should be safe. If there is an intruder then I should be able to take action which keeps my kids and myself safe. The fact is though, that three times recently in this county and in the next one, a homeowner shot and killed an intruder. (All of the shooters were men) One in the next county paid $40,000 to attorneys to defend him after the case went to the grand jury. He was a former military man who has since moved to Belize. He was acquitted, but he was tried. A local man shot and killed a very drunk man who broke into his home one night, thinking it was his. This was in the courts for more than a year, and I have no idea what it cost him for defense. The third case did not make it past a coroner's inquest and was in broad daylight. I really think that many times, the anti-gun crowd are those who wish to be able to break in to my house.

russell1200 said...

As for the wonders of the VA legislature. It is as far as I know the only legislature that was so corrupt, and so inept, that the people of the colony rose up and actually chased them out of office- burning Jamestown in the process -1676 Bacon's Rebellion.

JaneofVirginia said...

Fortunately, since 1676, they have changed the location of the capital, and are a little better than they were then. Still, one gets the impression that a number of our delegates are of the self-serving variety.

Matt said...

Maybe the legislatures are drinking out of that tritium contaminated lake... that would help explain things ;)

JaneofVirginia said...

Legislators from the US are definitely drinking something !