Self-Defense Law in Virginia
Virginia falls into the minority of states that does not yet have what is commonly termed a "stand your ground" law. This term has become synonymous with "self-defense" laws and is often described as the right of an individual to defend oneself when attacked, without the duty to retreat from what is perceived as a threat, as long as the response is "reasonable" in the eyes of the law. States taking this approach are sometimes defined as "stand your ground" jurisdictions.
Specifying self-defense laws, this article will highlight the current status of self-defense laws in Virginia, how they differ from "stand your ground" laws, and what is in store for the Future.
Current Status
The Virginia State Code does not explicitly define "stand your ground" laws. Rather, whether the actor in a situation has the duty to retreat before responding with deadly force is determined based on common law. The Virginia Criminal Jury Instructions provide model instructions for two potential jury inquiries regarding a claim of self-defense:
Based on the Virginia Criminal Jury Instructions, the burden is then on the prosecution (the Commonwealth) to prove beyond a reasonable doubt that the actor was not acting within the scope of defense of life or property. If the Commonwealth is unable to prove this, the actor is entitled to an acquittal. The statutes do not provide guidance on whether the actor has a "duty to retreat." Further, although there are no provisions in the statutes or Virginia Criminal Jury Instructions that impose a "duty to retreat," there is no statute or Criminal Jury Instruction that specifically reflects the broadened "stand your ground" approach . However, Virginia courts have been consist in an "no duty to retreat" approach. Namely, Virginia courts have consistently held that an individual does not have a duty to retreat from a place he or she has the right to be, as long as the actor is not engaged in criminal conduct and is fair game. And, even if the actor does not have a right to be where the incident occurs, armed individuals have a right to protect themselves from other armed persons against whom there is a threat of physical harm.
Future
As "stand your ground" laws have received increased attention in recent years, especially with the Trayvon Martin shooting, bills were introduced in the 2012 and 2013 General Assembly Session to broaden the sufficiency of the self-defense claim. Such bills were not passed despite receiving bi-partisan support. For example, the 2012 Virginia House Bill No. 2 was narrowly rejected in a vote by the Privileges and Elections Committee. The bill sought to create a statutory duty not to retreat if faced with the threat of physical harm or sexual assault. To the contrary, a bill creating a duty to retreat prior to using deadly physical force was presented in the Virginia General Assembly in 2014, but was tabled by the Privileges and Elections Committee. This bill would have created a duty to retreat with certain exceptions, such as if the person was in his or her home or workplace. As the General Assembly kicks off its 2015 annual Session in January, it is likely that there may be attempts to strike again.
Duty to Retreat or Stand Your Ground: Understanding the Legal Distinction
‘Stand your ground’ laws allow an individual involved in a situation involving a perceived threat to use deadly force against that threat without requirement of retreating. The person, by adhering to the ‘stand your ground’ principle, may justifiably kill a person believed to be threatening his or her own life, without requirement to flee the area.
‘Duty to retreat’ is a provable defense for violent acts, suggesting a person should attempt escape from any situation requiring potentially lethal actions before acting on that urge. Note, however, that a ‘duty to retreat,’ like the one described here, differs from a ‘castle doctrine,’ which allows a person to ‘stand his or her ground’ on their property without any obligation to leave, to include those undertaken in the home.
Virginia has no ‘stand your ground’ law. However, you do not need to retreat from force employed against you at your place of employment or to be prepared to leave the area. While that is important to know, be aware that the ‘duty to retreat’ is honored in Virginia.
A Bit of Background on Self-Defense Laws in Virginia
The historic roots of self-defense laws in Virginia are deeply embedded in the common law tradition, influencing both jury instructions and statutory language. Some argue that Virginia’s common law on self-defense has more influence on the legislature than the reverse, although the General Assembly and courts have both made impactful modifications in recent years.
In 1976, the General Assembly codified self-defense as a legislative statute, while retaining aspects of the common law. However, that year marked a change in Virginia law that appears to have paved the way for the notion of immorality as justification of deadly force. The laws of self-defense under the Ultimate Sacrifice Doctrine would have prevented Mrs. Troy from being prosecuted for murder or even manslaughter. The General Assembly ratified the Ultimate Sacrifice Doctrine by adopting Criminal Jury Instruction 3, R.J.I.VA. 3-17, essentially saying: A person is justified in using deadly force against another when he reasonably believes that such other is an immediate, rather than a future or potential threat, of death or great bodily harm to him or to another person. However, in the Walker case, the Court expanded the ambiguity of "great bodily harm", and for the first time expressly incorporated rationales found in the ultimate sacrifice doctrine: that is, immorality. The legislature in Walker tried to assure the trial court that the "immoral" or "unlawful" condition could only be used to strengthen a claim of self-defense and not weaken it. The problem here, as noted above, is that when the conditions are very similar (such as in the sacrifices cited in the Ultimate Sacrifice case), there ends up being no real distinction. The Walker court was not convinced. In the Court’s view, the alleged victim was engaged in conduct that was himself "immoral." In ruling that Ms. Troy was not entitled to a self-defense instruction, the Court arguably confirmed the immorality condition, although the Court noted that the general rule is that the defense of another must be "innocent."
Recent Changes to Virginia’s Self-Defense Law
Virginia’s legislature is no stranger to introducing bills related to self-defense and ‘stand your ground’ over the past decade, but none have gained much traction. In 2015, two bills were put forward relating to self-defense. The first attempted to clarify the law for duty to retreat by stating a person does not have a duty to retreat in any occupied structure when an intruder enters unlawfully. The second attempted to remove self-defense as a defense for exposing a firearm to another person if that person was acting aggrieved at the time. Neither bill was passed.
More recently, the primary bill of interest was one introduced in December 2018 which aimed to expand Virginia’s ‘castle doctrine.’ Such laws generally provide that individuals have no duty to retreat from their homes, workplaces , or other specified locations when threatened with force. Virginia’s castle doctrine currently provides that a person may use physical force for the protection of themselves or a third person from unlawful force when they reasonably believe that the intervention is immediately necessary to protect themselves or a third person against the other person’s imminent use of unlawful force. Several other Virginia laws also refer to the use of force and violence in self-defense, including for police use and for children.
This most recent bill was with the Virginia General Assembly for consideration in January 2020, however it was not passed.
Virginia is not likely to join the many states with explicit ‘stand your ground’ provisions and its laws largely remain unclear as to whether it imposes a duty to retreat before the use of deadly force or otherwise adjust its laws on self-defense and the use of force in general.
Virginia Polled on Stand Your Ground Statutes
Public opinion about "stand your ground" laws varies across Virginia, just as the general political sentiments about the laws can swing widely within a matter of minutes, especially after a high-profile incident where the law is called into question, as in the wake of the Trayvon Martin case and the George Zimmerman acquittal.
"Stand your ground" laws in Virginia still enjoy a high level of public support even with open carry laws now passed by the General Assembly that allow individuals to openly carry firearms in public. General Public: Most citizens believe it’s their birthright to defend themselves and their families under any circumstances, and this instinct is bolstered by their interpretation of the Second Amendment. Many gun rights advocates point to a 2011 Washington Post survey confirming that 73% of Virginians believe that "laws allowing people to use guns to protect their homes and families" should remain as they are or be made more permissive.
Gun rights advocates also argue that knowing they can adopt a "stand your ground" mentality to protect themselves keeps potential criminals at bay; however, there are others who argue that in Virginia, there are too many chances for murder to be claimed as self-defense. Lawmakers and Courts: The opinions of lawmakers regarding "stand your ground" laws have become more varied, but gun rights advocates point to one guardian of gun rights still on their side: the Supreme Court. The Virginia Supreme Court found in 2009 that "a person who is not at fault in provoking or continuing a difficulty, and who has no duty to retreat, has the right to stand his ground, and is not obliged to retreat or comply with the demands of an assailant to withdraw from a place where he … has the right to be."
One lawmaker in the area, Del. Les Adams, felt that a bill he sponsored to make Virginia’s "stand your ground" law more broad failed not because citizens aren’t in favor of it, but because the Virginia House of Delegates was not in favor of it. In a meeting of the Committee for Public Safety assembled by the Colonial Area in 2012, the committee members voted not to make any changes to the state’s laws regarding guns or self-defense.
That does not sit well with some state lawmakers. Senator Tommy Norment and Delegate Bob Marshall, both Republicans, have both sponsored bills that would remove Virginia’s "duty to retreat" provision and acknowledge the Castle Doctrine. However, both bills were killed in committee after the Attorney General’s Office recommended against the bills, stating that repealing the duty to retreat requirement would allow "justifiable self-defense in situations that are currently deemed second degree murder, aggravated assault, and brandishing."
Citizens: "Stand your ground" laws are controversial in Virginia because everyone seems to have a different opinion. Democrats support the provision that allows citizens to stand their ground inside their homes (the Castle Doctrine), while Republicans support the provision that allows citizens to stand their ground at any given time.
Legal Aid: Self-Defense Litigation in Virginia
To be prepared and to ensure that you are following the laws correctly, you should contact and discuss with an experienced Virginia self-defense attorney your options and the specific details of your situation. As stated , each case is unique and should be handled appropriately. It is also important to have competent legal representation during any questioning regarding your case to ensure that there is no interpretation error. Your lawyer will be able to provide you with sound advice and will advise you on how to proceed in the best manner for your specific case.