I did ask for you to cite the law or statute, but I did check on it.
There is NOTHING in the Virginia Statutes that say you become a party to the problem if you give a verbal warning.
You may give a verbal warning, that you will defend yourself, or you are armed and prepared to defend yourself.
You can not say, ‘I will Kill You’… but you can warn them that you are armed and they should surrender or leave.
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If you verbally confront someone, even if it’s just a verbal warning or to ask for peace, you must retreat. This does not mean you cannot defend yourself if they continue to advance and you have retreated as far as you safely can. This is on top of the fact that as a general rule, Virginia law does not allow deadly force to prevent an entry into a home or dwelling anyway…
Bailey, 200 Va. at 96 , 104 S.E.2d at 31. See also Lynn v. Com. , at 8 (Va. App., 1998) “Excusable self-defense may be asserted when the accused, who was at some fault in precipitating the confrontation with the victim, abandons the fight and retreats as far as he or she safely can before attempting to repel the attack.”
The court in Bailey stated: “Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.”
Justified self-defense applies where a person is free from any fault in provoking the attack.
Excusable self-defense applies when using deadly force even though a person is not an entirely innocent party, but certain requirements are met.
@MikeBKY, thoughts?
Virginia does not have a codified Castle Doctrine statute but the doctrine sounds in Virginia Common Law. Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922) (recognizing the law derived from the [*680] “Defense of the Castle” doctrine provides that “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 . . . even to the taking of life”).
Hines v. Commonwealth, 292 Va. 674 (Va. October 27, 2016).
If you are in your home, you can warn someone that you have a weapon and will shoot them if they do not leave and you have no duty to retreat.
https://caselaw.findlaw.com/va-supreme-court/1752215.html
There is also a legal concept with regard to an “initial aggressor.” This would generally not apply in a castle doctrine issue but could if a confrontation was started in the home with an invited or otherwise legally present person. Here is an explanation of how it works.
“Justifiable self-defense arises when the defendant is completely without fault.” Foote, 11 Va. App. at 67, 396 S.E.2d at 855 (citing Perkins v. Commonwealth, 186 Va. 867, 876, 44 S.E.2d 426, 430 (1947)). “In such a case, the defendant need not retreat, but is permitted to stand his ground and repel the attack by force, including deadly force, if it is necessary.” Id. (citing McCoy, 125 Va. at 775, 99 S.E. at 645). Even so, the “amount of force used must be reasonable in relation to the harm threatened.” Diffendal, 8 Va. App. at 421, 382 S.E.2d at 26 (citing Montgomery v. Commonwealth, 98 Va. 840, 844, 36 S.E. 371, 373 (1900)).
In Foote, a plain-clothed police officer approached the defendant in his vehicle and attempted to unlawfully arrest him. 11 Va. App. at 63, 396 S.E.2d at 853. The officer drew his weapon, pointed it at the defendant, and attempted to remove the defendant’s keys from the vehicle’s ignition. Id. When the defendant fled in his vehicle, the officer [*9] followed the defendant in his own unmarked police car. Id. at 63-64, 396 S.E.2d at 853. The defendant then stopped his car, exited the vehicle holding a handgun, and ran toward the officer with his weapon drawn. Id. at 64, 396 S.E.2d at 853. When the officer fired his weapon at the defendant, the defendant fired back. Id. This Court held, HN6 the defendant “had the privilege to use reasonable force in repelling his attacker” because the defendant was not the initial aggressor and was entirely without fault in provoking the officer’s unlawful attack. Id. at 69, 396 S.E.2d at 856. “[The defendant] had the right to stand his ground and his initial flight in no way diminishes this right.” Id. at 68-69, 396 S.E.2d at 856. Further, as the defendant “was confronted with deadly force, it was reasonable under the circumstances for him to use deadly force in return.” Id. at 69, 396 S.E.2d at 856.
Hill v. Commonwealth, 2010 Va. App. LEXIS 219 (Va. Ct. App. June 1, 2010)
As @Seethe mentioned, if the initial aggressor retreats and the other person pursues, that person becomes the aggressor and the retreating initial aggressor may defend himself. But this would not apply to a resident of the home against a trespasser in the home.
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I will point out this is a court case, and not Virginia Statute, and while case law can impact us, it has more to consider.
In this case, the court found;
“As we interpret the finding of the lower court, it held that while the killing was shown to have been in self-defense, the defendant was deprived of the right to assert that defense because, it said, he was partly at fault in bringing about the difficulty which necessitated the killing, in that he was meeting Mrs. Pittman clandestinely at the time of the encounter.”
Now, consider, it was 1958, a far different era and a difference in ethics and how people viewed certain institutions such as marriage. This case has nothing to do with warning someone.
Giving warning is NOT participating in the ‘problem’.
If you give a ‘gesture’ such as the ‘finger’ or yell something (most likely something rude or insulting but open to debate on what you yell), then you are part of the problem… and if you then retreat and try to remove yourself, and the other person follows you, you may still be able to claim self defense (excusable self defense)… but nothing says if you warn someone who is attacking you or has invaded your home that you are armed and will defend yourself makes you part of the problem or that you must then retreat. If you are in your bedroom and can not retreat but warn someone to leave and you are armed, you can not retreat.
I point this out, and questioned you because I live in Virginia and I know most of the laws, but not all, and I have never heard what you claimed.
And I know what Justifiable and Excusable are…
In Bailey, if that were tried today, it might result in a court finding of 'Excusable" as he could not retreat and society today looks at marriage as less important than it once did (right or wrong)… and we can carry due to threats and for the purpose of self defense. Was he partially at fault for a relationship with someone else’s wife? Perhaps, but at no time was it violence or a threat of physical altercation with the husband, who did indeed intend physical harm or death.
You need to consider the era, and the circumstances.
Also, the conviction was overturned, as it was determined he did have the right to self defense.
I asked, because while I try to know the laws, I do not know them all, and Richmond is constantly attacking the people, and I would either learn something or would correct your inaccurate understanding… a win- win, either way.
Oh, just thought of something. Giving a warning is something we may all need to think about. The idea being to give warning to hopefully avoid being forced to fire… versus not giving a warning… because giving a warning gives your location to the aggressor. We need to consider both options as part of our considerations.
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Yet, there is no statute or case that establishes that if you warn your attacker that you will defend yourself, and they should leave, that you lose the claim of self defense and now must retreat.
If you could not retreat, and would hope to warn someone away without violence, by warning them, and unable to retreat it would create a mass of lawsuits and difficulty.
In the case he referenced, the era, 1958… and our values and views of marriage at the time, the court found self defense, while evidence proves it existed, the court decided that since Bailey was ‘cheating with the wife of the deceased’ that ‘cheating’ was in part , involved in the problem that led to the shooting.
Today, that might not be the same ruling. And nowhere in the case does it say you can not warn someone.
As a Virginian, I try to know the laws, but do not know them all, and that is in part why I asked. It would teach me something new, or correct the inaccurate view of Seethe.
Thanks for the other references, information is valuable.
The home owner did it right / I hope that if I was in that situation I would have done the same /
I am a strong believer and advocate that you take every other action possible before firing
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Court decisions hold are law, known as “common law”, and, unless overruled or distinguished by a court or a statute is passed to the contrary, are the law of the state.
My analysis agrees with what you are saying @Kevin29.
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@MikeBKY so in this time of delayed police response or just normal response times I’m thinking I’m not going to be standing there for several 10’s of minutes pointing a gun at some dude who is probably going to get bored with the idea too.
My tenant is this: Fear only lasts so long (as does an adrenaline rush)
Is it legal (leave ethics and morals out of it) to physically RESTRAIN someone as opposed to holding them at gun point for an extended period of time? I’m thinking all the usual suspects, zip ties, belts, rope even an old pair of handcuffs.
I would imagine sooner or later the perp is going to not be scared out of his mind and hes going to tell you “I’m getting up and I am going to walk out that door, I am no longer a threat to you and you can’t shoot me in the back or physically stop me.” and he would be correct.
Yes I know the hazards of closing with an attacker but for this argument, that I have the means and ability to affect an restraint. Can I?
Cheers,
Craig6
The issue is that—in Virginia—you cannot just shoot someone because they’ve entered your home. You also cannot brandish a firearm to protect private property. By “warning them,” or even brandishing your firearm without being able to prove their intent… would this not make you the aggressor or in other words “party to the problem?”
What am I missing?
@Craig6, I cannot speak to all jurisdictions but, if you are restraining someone by holding them at gunpoint, it would be hard to imagine that the use of some other less than lethal restraint, such as handcuffs, zip ties, belts, nylon stockings, oops, forget that one, would not be considered reasonable.
I believe Virginia common law is clear on the extent of the “Castle Doctrine”
“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 [***31] 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’ * *.”
Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922)
I cite this because this is where the castle doctrine was made the law by the VA Supreme Court.
Keep in mind, verbal warnings are considered part of the force continuum, the lowest lever. Police give verbal commands and then escalate depending on the threat and objective. The same is true of civilians, “Get out of my house or I WILL SHOOT YOU” is a warning and is a use of force, but that does not suddenly make you the aggressor when someone has unlawfully entered your abode.
Likewise, your presence, or your presence with a weapon is an escalation in force, but, when someone breaks into your home, any needed force, including taking life, falls under the castle doctrine.
And yes @Seethe , force can be used, when someone enters a home uninvited. In today’s terms, there is a legal presumption, under the castle doctrine, that someone who enters a home uninvited has the intent to do wrong.
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I think I would do this me …I would hold him at gun point I agree if police don’t hurry up that time is go to change the circumstances He May choose to leave - in my opinion let him go - I prevented from harm happening to me - I didn’t have to shoot anyone and when the cops finally arrive - What $&#% took you long I could have been killed or killed someone -
That is the exact citation I could not find when I needed it. Thank you @MikeBKY ! on the previous note I agree with you assertion that being held at gun point is legal and all other form are less than but there is that sticky bit about kidnapping, unlawful restraint, detention false imprisonment and a host of others. I read a quote (paraphrasing) “There comes a time where being a good citizen is no longer justifiable because the criminal and the prosecution are on the same side.” Not advocating any action or non action just a search for facts that may be held against me in a court of law. I’m asking for a friend which has a household less than lethal. Yeah I know deep dive and you are not getting paid for it but you have better search tools than I do. Love you bro, first round on me!!!
Cheers,
Craig6
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Hate to say it, but you are missing the entire episode and skipped the chapter.
You can not say “I will ‘kill’ you” as a warning, that would be outside of the self defense criteria. You might kill them in your efforts to stop the threat, but you can not set that as your desired outcome.
You can not ‘brandish’ a firearm in public. In your HOME… you may very well draw your firearm and have it ready. You are on private property, you are in your home, and any intruder already has proven ill intent.
You do not… repeat … NOT… become an aggressor if you are warning someone you will defend yourself. That is in fact an extension of and proof of self defense. You are warning the aggressor, the intruder, that you will defend yourself unless they depart. That is NOT aggressive, it is defensive.
As stated before, and I believe MikeBKY stated also, if you are the instigator, but then you attempt to disengage and show you want peace and to retreat, and the other party pursues you, then you may defend yourself… .and you even pointed out the definitions of Justifiable and Excusable self defense. While you may consider it a ‘threat’ to say you are armed and will defend yourself, it is not a threat in the sense you are only stating to the aggressor party that you will defend youself.
I have a question;
I live in Virginia, have for over 50 years. I would ask, where did you obtain the idea that to warn someone that you were armed and would defend yourself was somehow becoming the aggressor? Who told you or taught you that, or from what book did you read it?
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As long as you do not say “Get out of my house or I will kill you”… that might bring you trouble.
Forget what? Never heard you say anything.
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I do not disagree with you on any of this. You need to look at this from “the reasonable person” standpoint. There will always be a possibility of a poor outcome for any use of force from a verbal command to deadly force. In law enforcement, we look at it as a continuum beginning with “officer presence” as the lowest level then rising to verbal commands, open hand force, closed hand, less than lethal (or less lethal) force (pepper, baton, taser) and finally deadly force. Restraint follows a similar pattern. Telling someone they are being detained is the first and, in many cases, their compliance is submission to your “authority” to detain them. If they do not comply, you use force to obtain compliance and cause submission whether it be an arm bar, taking them to the ground, tasing them, cuffing them, holding them at gunpoint or even shooting them.
You are the authority in your home or castle.
From the perspective of unlawful arrest or kidnapping, holding them at gunpoint is no less a restraint then handcuffing or otherwise tying them up in some fashion. Under Kentucky law, a civilian can make an arrest “when a felony has been committed in fact and he or she has probable cause to believe that the person person being arrested has committed it.” KRS 431.005(6).
Virginia recognizes that citizens can make an arrest under common law for a breach of peace.
At common law, a private citizen may arrest another for a breach of the peace committed in his presence. See Gustke, 516 S.E.2d at 291-92; see also Carroll v. United States, 267 U.S. 132, 156-57, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“ ‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence …’ ” (quoting 9 Halsbury’s Laws of England 612)); accord W. Page Keeton, ed., Prosser and Keeton on the Law of Torts § 26 (5th ed. 1984) (“Broadly speaking, either an officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace which is being committed … in his presence.”) (footnotes omitted).6 Despite argument on brief that he could only be the subject of a citizen’s arrest for a felony, Hudson conceded at trial that *380 “any normal citizen can pull somebody over for breach of the peace.”
Hudson v. Commonwealth, 266 Va. 371, 379–80, 585 S.E.2d 583, 588 (2003)
In Kentucky, burglary is a felony and, if someone came into my home, I could make a citizen’s arrest. I will assume that someone unlawfully entering a hoe in Virginia is a “breach of peace” and would also authorize a citizen’s arrest.
The question then becomes, once arrested, how are you going to keep your prisoner in custody? If the police are within minutes away, holding them at gunpoint until the police arrive is more than likely reasonable. But, if there is going to be an extended delay, there are other considerations, most importantly, the safety of you, your family and your prisoner. Reasonableness comes back into play. Holding someone at gunpoint, otherwise unrestrained, has inherent dangers, such as a negligent discharge or the prisoner attempting to attack you or escape. These dangers increase as more time passes. Likewise, using physical restraints also has its own dangers, especially getting them on if you are alone and the prisoner is not cooperative. Even when you are not alone, there are dangers in subduing and restraining a person. Just look at what happened with Rayshard Brooks in Atlanta.
All that being said, if you can safely restrain on someone so you do not need to keep them at gunpoint, it would seem reasonable to do so. If you cannot do so safely, then don’t.
I would also be concerned about letting them get up to walk out. First, if you are holding them at gunpoint, I would suggest that they be made to get on the ground, on their stomach with feet crossed at the ankles and hands out to their sides. If they stay that way, both you and your prisoner are safe.
Let’s assume they tell you they are going to get up and walk away. Are you going to let them get up? If you do, they may do what they said or they may use the moment to attack you. Are you going to take that chance?
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This does bring up an interesting point.
If they do get up and start to walk out, they are not a threat, and you really can not shoot them, and I am not sure about forcibly detaining them at that point (depends on each state I would guess). Would it be best to back away, give them room, and let them walk, prepared to defend yourself if they attack?
This does raise a very interesting scenario.
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Again this is all based on assumptions correct ? No matter how we play this out in our heads, at the moment this is happening it is difficult to assess what one will do - I am just saying with all due respect - Based on the scenario,
I would not try to restrain the perpetrator. I think that is a risk,
If the perpetrator decided to move - unfortunately he is at risk of getting shot
Lets assume he attempts to stand up after waiting 10 min and the police did have not arrive (10 min is a long time) well at least it will feel that way , - going back to him standing up I will hope that I will warn him that he is at risk of getting shot - I would try to gain some distance if I can / again lets assume there is no more distance to gain - I understand a lunge or an attack is on RED ALERT - I feel I would still have to take that risk unfortunately, he is talking the same risk , But one thing I am sure of - any wrong move, tweak, look will result in me shooting him - Again this is not real life so I can only assume and hope that my reactions are, that I gave him every opportunity not to get shot - I can live with that regardless what the legal outcome is, and hope that my action will assist the lawyer on a justified shooting.
I think for me , its a greater risk trying to restrain any person with any kind of handcuffs/ rope etc. I would want this guy not to move an inch if I was able to even get him to lay down on the floor. and I would surely let him know - Don’t make me do something I don’t want to do - and let him know making any move will/can result in me having to shoot him
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What would the justification be to shoot?
I agree that gaining distance, to stay away from the attacker, but you can not actually detain the person at that point I do not think, not legally. If they are not being a threat to you, you may be required to let them walk away, and you can not warn them they may be shot if they do get up, as getting up is not a threat, regardless of what threat they had posed just a few minutes prior.
This could lead to legal difficulties, as you can not shoot once the threat has ceased.
If he attacks once he is up and starts to walk out, but turns to attack you, you are then back in self defense and may justifiably shoot.
That is why I said we should be considering this scenario. It is something that can lead to difficulties.
It is an interesting situation as you said @Kevin29. And, as @DavidM58 noted, it is all based on assumptions and the wrong one could send you or the assailant to a hospital or the morgue.
I would say a response has to be based on all of the facts and circumstances. I will presume that we didn’t have the ability to search the assailant before laying him out on the floor so you really don’t know what, if any, weapons he may have. Also, unless you have some restraints readily available or can have someone get them, is that really an option.
In my opinion, the assailant is a threat laying on the floor and once he moves, that threat increases, although you don’t know to what degree. My instinct is that the assailant should not be able to get his legs under him or his hands close to his body because of the potential danger if he is able to control his movement. He may say he wants to get up and leave, stand up and shoot, stab or beat you before you realize what happened. Giving him distance is OK for close quarter weapons but you cannot get far enough away to beat a bullet.
The scene remains dynamic until the assailant has been properly searched and physically restrained but searrching or restraining him puts you in a compromised position.
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For some reason you’re under the impression that just because there is an intruder, you can use deadly force against them and that is not the case in Virginia… It is also important to realize that Virginia is only a stand-your-ground state in practice, not codified by statute.
In Virginia, a person is only allowed to use the amount of force necessary to repel the force used against him. This rule requires that the force used must be proportional to the harm threatened. Excessive force is not protected. Therefore, when threatened with a non-deadly attack, a person is not justified in using deadly force to repel the attack. As I stated before, as a general rule, Virginia law does not allow deadly force to prevent an entry into a home or dwelling.
Threatening the use of a firearm, as in the context of a brandishing case, is not lawful when done solely in the defense of personal property. When brandishing a firearm in response to a perceived threat, the brandishing must be reasonable in relation to that perceived threat. For instance, a property owner displaying a shotgun to unarmed trespassers in an effort to expel them from the property is likely not proportional to any perceived harm, even if they are on the property illegally.
Having worked with law enforcement, I can 100% guarantee that you can be charged with brandishing even if you do it on your own personal property… It’s no different than if you were to break any other law. For instance, being on your own private property does not protect you from domestic assault charges…
“You can instruct juries all you want to on what the law is, but juries have the ultimate power to acquit for any reason they want.” - Ronald Bacigal, University of Richmond’s law school.
“The truth is, when a criminal gets on to somebody’s property like that, his life is in serious danger. But he’s the one putting his own life in danger. Juries don’t tend to be sympathetic to someone like that.” - Philip Van Cleave, VCDL
It’s not as cut and dry as, it appears to me, you think it is. Ultimately, it will be up to the jurors to decide whether or not your defense was reasonable — after what could be a lot of legal fees.
For the record; I’m not saying you shouldn’t do whatever it is you feel you need to do to defend what’s yours. I’m not saying I wouldn’t shoot an intruder — regardless of why they have broken in — I’m just saying it’s going to be one helluva legal battle and the jury will still do whatever it wants to do. You have to find peace with the fact that you could end up being punished (even if it’s just a reduced charge) for protecting yourself or your family.