Defining Self Defense Under the Law in Virginia
The concept of self-defense is as ancient as the idea of conflict itself. The harsh realities of human nature and the inevitable clash of interests force us to confront these issues over and over again, and in turn, they become part of the law. The law of self-defense is rooted in the concepts of necessity and imminence – is it necessary to act, and is the danger imminent? When such a perfect storm of need presents itself, then the law of self-defense kicks in and protects you, if you choose to use force. Otherwise, the police will enforce the law for you. As a lawyer and former police officer for the City of Richmond, Virginia, I want to share with you my knowledge of the law that governs our actions as citizens of this Commonwealth . Understanding the law helps us to stay out of trouble and to act more wisely. Our founding fathers and their successors debated the law on self-defense, and today we view it as simply a right of common sense. But the law on self-defense is never simple, and the devil is in the details.
The purpose of this article is to simply explain how self-defense works in Virginia. More detailed articles will follow, for there is much to know. My goal in this short essay is just to help you understand the basics. Once you understand those, the world becomes a slightly better from knowing this information.
Virginia’s Definition of Self Defense
Self-defense is governed by Virginia Code §§18.2-17, 18.2-280, and 18.2-281, along with the common law. The most basic definition of self-defense in Virginia is defined in CODE §18.2-18 "The right to use reasonable force in self-defense is recognized in Virginia. This code section provides that nothing in the use of reasonable force shall give rise to a civil claim for damages due to such use of reasonable force." As to the definition under the law Virginia CODE §19.2-83, when the use of physical force or physical contact is justified as self-defense, the use of force does not create an affirmative duty on the part of the user of such force to retreat, notwithstanding the provisions in §18.2-280. Under the common-law, the Virginia Supreme Court has provided us some guidance as to the minimum requirements for the Law of Self-defense to apply. In order to have a valid self-defense argument, there must be an unprovoked attack (does not apply if the defendant raises a defense) establishing that a person was acting in good faith, in the opinion of the court, the person has the right to defend themselves by using the amount of force deemed necessary to prevent injury or death. Furthermore, you can only use this defense if you see that you are in actual imminent danger of death or serious bodily harm.
Self Defense vs. Defense of Others
The legal distinction between self-defense and defense of another hinges on the notion that the one defending has an actual relationship with the person being defended. In Virginia, a person may use force in defense of themselves, or a third-party who they have a special relationship. In Virginia, a third-party is anyone who is not the victim of the reported crime. A special relationship, also known as a special mutual interest, is one where the two parties have substantial personal contact and knowledge of each other. For example, Virginia does recognize that if a person sees that a car is in the process of being stolen, under a fight or flight analysis, they are likely to help defend that person’s interest in the property. However, a person cannot shoot the trespasser over a parked car since there is no special relationship.
For crimes of assault, the law in Virginia recognizes and requires a threat of bodily harm. Additionally, the defendant has a right to scale back their response when confronted to a lesser level of force. The perception of threat, the belief that someone is going to cause violence, must be an immediate perception of harm. That threat must be demonstrated by the actions of the challenging party. The threat may not be credible, however if there exists a battery. The person defending the victim must see and perceive the battery. In cases in which the victim does not perceive the threat, the person charged must prove that he or she perceived the batter involved. There is also the rule of "imperfect self-defense," which is an honest but unreasonable belief that his or her life or property or the life of another person is in danger. Virginia does not recognize the "retreat" rule or the "castle doctrine." The castle doctrine would maintain that a person would have the duty to retreat from a situation, before using deadly force. There is no generalized retreat rule in Virginia; only in one’s home. In cases of dwelling or residence attack, the victim has the duty to retreat, but only to the extent that they must retreat before deadly force is employed.
When Deadly Force is Legally Defensible
Unless you know for sure that your life or the life of someone else would be in danger, it (almost) always makes more sense to get out of Dodge before things get out of hand. The law says people have a duty to BEAT FEET if they can before they blow someone away. But if you really are backed into such a corner, there are reasons the law backs up your right to use force to protect yourself.
In some cases where the threat of immediate death or serious bodily harm was present, the law justifies the use of deadly force. For instance, using deadly force to prevent the commission of rape or other sexual offense, or to repel brawlers, home invaders, robbers, carjackers, or muggers might be legally justified—but the defense is only available in certain circumstances.
You may not be able to use a deadly weapon against a person who comes at you with a sharpened pencil, a pocket knife, or even a baseball bat. But here’s the real kicker—most of these examples do NOT involve the use of a firearm. That is because the law requires that the person claiming self-defense must first retreat or give up their place in a brawl before deadly force is considered a valid response.
The law even says you CAN’T use force to resist an "unlawful arrest" or "illegal seizure." That means if the cops stop you for a perfectly innocent reason and you feel the need to shove him in order to get away (and you’re not in any immediate danger), you just might find yourself getting arrested for assault. But if the officer moves toward you with a deadly weapon and you REALLY feel like your life is in danger, the law says you can use deadly force to defend yourself.
Once again, remember that armed self-defense under Virginia law does not mean immediately reaching for your gun as soon as the bad guy shows up pointing his weapon at you. The law only allows for self-defense if you have good cause to believe that you will face great bodily injury or death at the hands of your attacker. And once again, if you have the relative safety of retreating, you certainly have a duty to give up your home and run like the wind.
Virginia’s Duty to Retreat
The use of force in self-defense is one of the most confusing aspects of criminal law because the people who are typically prosecuted for it find themselves as the defendant. Furthermore, if you believe that you are in imminent danger of death or serious bodily harm, then you can legally fight back (even if it is potentially deadly force is used) with lethal force (see our article on how the law views self defense). This means that you can even kill someone if you reasonably fear he is going to kill you (in VA they try to get the jury to determine if that fear is "reasonable".) Also, you can even kill someone who has broken into or trespassed inside your home. Most states have a "Duty to Retreat." In cases where it’s not possible to retreat and not possible to call 911, which is deemed a Duty to De-escalate.
In Virginia, if someone threatens you with serious bodily injury or death, you have no duty to de-escalate and the law says you erected your home as a castle (VA Code § 18.2-80 – If any person break and enter or attempt to break and enter any dwelling house, or plant, or tent, or other building, movement, or enclosure, trailer, aircraft, watercraft, or other vehicle, or railroad car, freight car, or freight container, with the intent to commit murder, robbery, grand larceny, rape, aggravated sexual assault, malicious wounding, malicious bodily injury by means of a caustic chemical, or arson or other felony at any time during its occupancy or possession thereof, such dwelling house, or plant, or tent, or other building, movement, or enclosure, trailer, aircraft, watercraft , or other vehicle, or railroad car, freight car, or freight container shall be deemed to be the castle of the owner, occupant, or lessee thereof against any such person committing any of said acts with force or violence, and the owner, occupant, or lessee of such dwelling house, or plant, or tent, or other building, movement, or enclosure, trailer, aircraft, watercraft, or other vehicle, or railroad car, freight car, or freight container, may, regarding the nature of such dwelling house, or plant, or tent, or other building, movement, or enclosure, trailer, aircraft, watercraft, or other vehicle, or railroad car, freight car, or freight container, use all necessary force to repel and prevent the commission of such acts.)
This means that you can kill the trespasser even if that person is fleeing, unarmed and leaving your home. Most states have that you have a duty to retreat from the threat of death or bodily harm in your home if you can safely retreat, without putting yourself at more danger, unless you fear that the person is going to kill you immediately (NOTE: threatening a family member does not give you the legal right to kill the person). Virginia is one of only a handful of states (including Alabama, Florida, Kentucky, Mississippi, Missouri, North Carolina, South Carolina, Utah, and West Virginia) that have "Stand Your Ground" laws. This means that you can exercise your right to self-defense under any circumstances if you feel reasonably threatened or you feel that you are in danger of receiving bodily harm or killed by someone. This supersedes the Duty to Retreat.
Legal Ramifications of Unjustified Self-Defense Actions
When an individual unjustifiably uses self-defense against another, that person could still face legal consequences for that conduct. First, a person who claims self-defense has the threat of being charged criminally based on the underlying acts of violence. For instance, if an individual unjustifiably punched someone in the face because they were in the middle of committing a crime, then it is possible that the alleged victim could turn around and charge the aggressor with assault, battery, or malicious wounding. The claim of self-defense is not a complete defense if the person claiming self-defense was the initial aggressor. Second, self-defense is not a defense in any civil action for damages. In Virginia, it is illegal to use any kind of force, even a push or shove, unless there is an actual or apparent threat of bodily injury. If a person injured the alleged victim but it was not in the proper circumstances to constitute self-defense, then the person would not only face criminal charges, but could be liable in a civil suit for the injuries.
Case Examples of Self-Defense Cases in Virginia Courts
Case study 1: Use of deadly force
The case of Smith v. Commonwealth illustrates when the use of deadly force is considered reasonable. In Smith, the defendant was being threatened with a knife during a drug deal gone bad. Smith had the gun but was being held at knife point. He said he feared for his life, shot at the suspect but missed his mark. When police arrived they found the suspect in the defendant’s passenger seat holding the knife. Smith claimed he shot at the suspect because he feared for his life. The defendant was charged with aggravated malicious wounding; however, the trial judge found the defendant not guilty because the victim threatened "more than a trespass upon [Smith’s] personal safety." The Commonwealth appealed. The Court of Appeals found no reasonable basis to support the trial judge’s conclusion that Smith acted in self-defense. Smith admitted he was afraid of being stabbed, however there was no evidence presented that supported this fear. Therefore, the trial judge’s finding of no probable cause was reversed.
Case Study 2: Use of force in one’s home and the duty to retreat
The new Virginia Castle Doctrine was applied in a recent case, Baker v. Commonwealth. In that case, Baker was convicted of felony assault for a domestic incident that occurred in his home. Baker was on the ground when someone came into his home, who he knew to make previous threats against him and his family. Baker admitted to reaching for his gun, but was unsure if he fired it. Baker was tried and convicted of felony assault. On appeal, the Supreme Court of Virginia held that the trial court should have instructed the jury regarding the defendant’s right to defend himself in his home. According to the Supreme Court, even though the defendant did not present evidence that he acted in self-defense, he was still entitled to have the jury consider whether he had acted in self-defense under the newly enacted statute, section 18.2-280. Because the trial court refused to instruct the jury on defendant’s right to defend himself in his home, the case was remanded for further proceedings.
Case Study 3: Reasonable Belief Standard vs. Objective Standard
The case of Commonwealth v. Cox illustrates when a defendant’s mistaking an object for a deadly weapon may defeat a "self-defense" claim. According to the facts, the defendant and his girlfriend were arguing inside his home. Cox took a box cutter from the table and pointed it in the direction of his girlfriend. Based on the girlfriend’s testimony it was determined that she was fearful for her safety and that the defendant was pointing the box cutter in her direction and appeared to be threatening her at the time. Several days later, the defendant was at the grocery store with his girlfriend. Cox began arguing with his girlfriend again. Her father (another patron at the store) tried to break up the argument and was cut by the defendant with the box cutter. Cox was charged with malicious wounding. At trial, the trial judge dismissed the charges finding that the defendant acted in self-defense when he pointed the box cutter at the complainant. The Commonwealth appealed. The Court of Appeals found that the defendant was not threatened at the time he wielded the box cutter at complainant. This is where the defendant’s belief of danger to himself or his family must be considered in light of an objective standard. Since the defendant was not being attacked and the complainant was trying to separate the two arguing parties, there was no immediate threat to the defendant or anyone else and therefore no self-defense.
Choosing a Self Defense Attorney in Virginia
When it comes to choosing a self defense lawyer, you want an attorney who has an experienced understanding of the law as well as the attorney’s potential bias or predisposition toward violent or other criminal behaviors. While many lawyers are perfectly wonderful, some have persuasion techniques or even psychological strategies they utilize. You want to make sure that your lawyer does not have a preconceived notion about violent criminal behavior or about self defense. Here are some tips and questions you should ask when you are meeting with potential attorneys:
• Education: What school did they attend? What were their majors? Do they have further certifications or training outside of the law? Are they currently enrolled in any special legal training programs or involved in any groups like the Virginia Association of Criminal Defense Lawyers?
• Experience: Ask about the number of years they have been in practice . How many of their cases are related to self-defense and homicide? Have they defended clients found guilty of violent crime? If so, how is their success rate?
• Success Rate: While the lawyer cannot predict the outcome of your case, they can give a general idea based on the facts and their experience. If they are vague or non-committal, it could be a red flag.
• Specialization: Ask if they specialize in self-defense law or homicide law. Is this an area of their specialty or is it something they do on the side? If it’s on the side, they may not have the time to give you the attention you deserve.
• Fees: What do they charge? Do they offer payment plans or do they accept credit cards? If they are willing to do payment plans, how much are they willing to take each month and over what period of time do the payments need to be made?
You can pick up a lot about an attorney simply by meeting with them. Pay attention to their body language, eye contact, tone of voice, and mannerisms. You want a lawyer who knows their stuff, but who also knows how to listen when you are speaking and who can sympathize with your unique situation – without assuming that you’re guilty of a crime.
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