Is There A Stand Your Ground Law In Virginia?
Of all the U.S. states, only 28 of them have a so-called "Stand Your Ground" law. These are laws that, when an individual faces the possibility of serious bodily harm or death, allow them to use deadly force to protect themselves without incurring any legal liability for the results.
The law doesn’t require the individuals to retreat to a place of safety before using deadly force, as has been required an English law dating back to the 5th century. The principle behind these laws is that people should not have to endure physical harm simply because they failed to flee a dangerous situation .
Virginia does not have a Stand Your Ground statute. In practice, however, law enforcement officers and prosecutors in their discretion grant that right to individuals attacking the property or person of another. Those cases are rarely charged or prescribed.
In Virginia, the general rule is that an individual does not have a legal obligation to protect themselves if they are confronted with potential bodily harm, but to retreat is never recommended, especially if it culminates into a physical altercation.
Virginia’s Self-Defense Laws Explained
Virginia’s legal self-defense framework is built around a common law doctrine, called "castle doctrine," which allows a resident to use non-deadly force to protect themselves and their home from that of an unlawful, forcible intrusion. A "home" in this sense, however, includes anywhere the resident may be. So, this law is no different than applying the right to defend yourself from attack while in your home.
Although not codified, Virginia courts have adopted the presumption that a person has a right to the use of deadly force in defending oneself. The presumption, however, is rebuttable. The rebuttable presumption means a jury may still conclude that, despite the use of deadly force, a defendant has acted responsibly in his or her choices. It is also important to note that Virginia law does not impose a duty to retreat, or relinquish one’s home without first attempting to defend or warn an intruder, as a prerequisite to the use of deadly force. The Stand Your Ground law therefore overlaps with Virginia’s castle doctrine, in that both laws do not force a resident to flinch when defending themselves or their family inside or outside their home. In other words, regardless of whether the attack takes place inside or outside, a defendant may use deadly force to avoid injury or death to themselves or another person about whom they care.
Contrarily, if the defendant provoked the attack in some form, then the presumption of reasonableness no longer applies. The person will then be evaluated like any other citizen accused of inflicting harm on another. Because of this, many stand your ground clauses include limitations against those who invoke the right to self-defense despite operating or provoking violence. Without limits, self-defense would provide criminal immunity to violent crime.
Stand Your Ground vs. Duty To Retreat: What’s The Difference?
If you use deadly force in the face of an immediate threat, the law does not want to treat you like a criminal when it was necessary to protect yourself or others. However, state laws differ regarding where that protection exists and whether you have a duty to take all reasonable steps to retreat from the danger before using deadly force in self-defense. In Virginia, there is no duty to retreat. There is no requirement for you to try to escape an attacker before using deadly force in self-defense when you truly had no choice but to use such force to avoid serious bodily injury or death. Within the Commonwealth, self-defense laws assume that you do not have to escape unless an avenue for safe escape exists. Otherwise, the VA Criminal Code gives you the right to respond with proportionate force, which means any force necessary to stop the furtherance of harm against you. In the case of a reasonable apprehension of death or serious injury, you can respond with deadly force (greater than necessary). However, since Stand Your Ground laws only apply to situations of self-defense (not those involving provocation), the right of self-defense only applies when you did not provoke the attack. VA Statutes also specify that if you are handling a situation involving an assailant armed with a deadly weapon, you have no duty to retreat before you defend yourself and your loved ones with deadly force.
Virginia Cases And Precedents
Although self-defense laws are complex, the main principle is that a defendant may use deadly force in self-defense when he or she is in imminent danger of death or injury with no physical way to avoid the confrontation. In this situation, the individual must respond to a perceived threat as if his or her life was in imminent danger, using no greater force than is necessary to stop an attack from another party.
As with self-defense laws in other states, Virginia has its own case law for analyzing situations where a defendant faces criminal charges relating to self-defense.
In the case of Locke vs. Commonwealth (2017), the defendant was convicted of murder in the second degree after he shot and killed a man at a party. When the defendant was driving home, he noticed what appeared to be an argument in the vehicle behind him at a red light. At a stop sign, three men exited the vehicle, one of which was identified as the victim. The victim and defendant exchanged words, and the victim reportedly grabbed the defendant’s arm. The defendant took out his licensed handgun and shot the victim. The defendant later claimed that he acted in self-defense, and upon conviction, he appealed his case. On appeal, the court overturned the conviction based on the ruling that the trial judge accepted evidence that did not allow the jurors the opportunity to make the right judgment. The defendant’s motion for malice instruction would have the jurors believe that a threat of physical danger did not allow him the opportunity to avoid the confrontation .
In the case of Martin vs. Commonwealth (2016), the defendant was charged with two counts of assault and battery after the altercation did not result in serious physical harm. The defendant had reportedly been drinking, and his friends urged him to leave the premises after he stuck someone. After leaving the premises, he returned to the venue to apologize. While he was apologizing, the peacekeeper/owner of the establishment (an older man) reportedly sucker-punched him on the side of the head. When the defendant went to apologize again, the peacekeeper again attacked him. Only then did the defendant draw his concealed handgun and fire a shot at the peacekeeper. The defendant claimed he acted in self-defense, arguing that he was in his own home (meaning the venue was "his") and had the right to protect his property. The court found the arguments regarding the protections of his house to be irrelevant because the defendant was not a resident of the venue. Additionally, the court ruled that the fatal injury likely occurred as a result of the defendant initially removing the gun from the holster, but before he fired the weapon, the defendant stepped backward in the venue, hitting a wall and the lock on the door swinging shut, causing his hand to jerk off the gun before he was able to pull the trigger and injure the plaintiff. Since the fatal injury might have been the result of another incident entirely, the court reversed the conviction and remanded the case for a new trial.
Implications For Virginians And Legal Guidance
For residents of Virginia, the concept of Stand Your Ground laws is particularly important to understand. A person cannot, however, be arrested for committing homicide or another violent crime in self-defense if they were acting in accordance with a Stand Your Ground law, but that doesn’t always mean that a person accused of such a crime will face no penalties. Stand Your Ground laws are complex and should be understood well by any individual who may be placed in a position to defend himself. The following tips will help Virginia residents better understand how these laws work.
Pay attention to the circumstances in which a crime is committed. The particulars of what happened before and during a violent incident can make the difference between whether or not a person’s actions can be legally defined as self-defense under Virginia Stand Your Ground laws. All of the following may be taken into account in a self-defense case:
All of these factors can make it easier to prove or disprove that an individual was acting out of self-defense.
Know where you stand on the weapon issue. In Virginia, person carrying a firearm outside of their home is subject to arrest and felony prosecution. Because Virginia Stand Your Ground laws provide protection against prosecution for homicide and other violent crimes committed in self-defense, this issue is particularly important to understand.
Stay calm. Individuals who are accused of violent crimes often experience heightened emotions after the incident — including anger, remorse, shame, depression or other negative feelings. This can cloud their judgment and potentially their ability to think strategically about how to handle the aftermath of the incident. While it’s completely normal to be emotional, it’s vital to put these feelings in check and apply all of the facts to the situation in order to make the right decisions moving forward.
When in doubt, consult with a criminal defense attorney. An experienced criminal defense attorney is the best legal resource for individuals who have been involved in potentially unlawful violent incidents. A criminal defense attorney can help individuals understand their legal rights, whether or not they should assume responsibility for the incident and how to move forward with the situation. A criminal defense attorney can also help individuals navigate all the legal processes involved in such a situation and fight to protect their rights throughout the process.
A Comparison Of Virginia To Other States
When comparing Virginia’s statute to other self-defense provisions, the first thing to note is that many states’ "Stand Your Ground" laws are actually statutory exceptions written into otherwise no-retreat necessary self-defense provisions, where Virginia’s specifically does not distinguish between retreat and stand your ground. In some of these laws, the standing your ground creates an affirmative defense, while in others such as Virginia’s, they create a rebuttable presumption.
Another aspect that sets Virginia apart from many of these laws is that almost all of them have language specifically addressing the use of deadly force "unless the person knows that he can avoid the necessity of using such force with complete safety by retreating." Whereas, Virginia law only applies if the defendant does not know "the danger is urgent, obvious, and present."
When we look at the "Stand Your Ground" laws of other states, most tend to distinguish between use of deadly force and non-deadly force, whereas Virginia’s law does not. So for example, Texas law states, "a person is not required to retreat before using force or deadly force as otherwise permitted by law and does not have a duty to retreat under the circumstances described by this section and may stand his or her ground and meet force with force." And yet it retains its "duty to retreat" provision, which means in order to assert SYG in Texas you can’t have a duty to retreat first . Texas also limits Stand Your Ground protection to the use of deadly force only.
Virginia stands apart in that it is a no duty retreat state for both deadly force and non-deadly force (as defined by Virginia law).
Other "Stand Your Ground" laws vary widely regarding the rebuttable presumption. Some require that the presumption is applicable unless "the person against whom the force was used was a law enforcement officer engaged in the performance of his official duties." Others say the presumption does not rise if "the use of deadly physical force was against a peace officer who was acting in response to a verbal command with which he or she was not involved." While most require that the person be "not the initial aggressor" to be eligible for the presumption. Virginia only requires the defendant not to have been (1) the first to start the altercation and (2) without a reasonable avenue of retreat.
Some states’ laws are also slightly more or less specific in the circumstances under which they allow for a stand your ground presumption. For example, Kansas’ SYG law states there is no duty to retreat if the person "has a right to be present at the location and is not engaging in unlawful activity." Virginia’s law does not require the shooting party to have been an innocent party to the crime past self-defense.
Based upon these distinctions there may be some opportunity to argue that the rebuttable presumption where a victim was the initial aggressor should not apply.