Castle Doctrine Law: Virginia

Virginia is a state with a proud pro 2A history, but one that has been increasingly beleaguered and infiltrated by anti-gun and anti-self-defense sentiment, political action groups, and politicians in recent years.

flag of virginia

Despite this, the state still maintains a functional and recognizable set of castle doctrine laws, but they only really operate as a set of jury instructions.

This is not ideal, because it leaves much of the outcome in store for a defender up to the fickle and capricious decisions of juries.

That means that assuming our legal system is operating the way it should, citizens in Virginia should have about the same expectations as citizens in other states if they are forced to use lethal force in defense of themselves and their families inside their homes.

Keep reading to learn what you need to know, and make sure to read these particular jury instructions for yourself at the end of the article.

Fast Facts

  • Virginia law justifies a citizen who uses an appropriate level of force against an unlawful force that is directed against themselves or a third party only so long as the defender reasonably believes that the level of force used is necessary to prevent harm.
  • Specifically, lethal force is only justifiable when used to prevent forcible felonies like murder, the threat of great bodily injury or rape.
  • Virginia’s castle doctrine equivalent provisions only function under somewhat restrictive circumstances compared to other states, and are further reliant upon jury instructions.
Gun laws in Virginia: Where you can and can't carry a firearm

Overview of Castle Doctrine Law in Virginia

Looking at the law itself in Virginia will only get you to the halfway point concerning what you need to know regarding self-defense in and around your home.

The other half, unfortunately, is found in a huge amount of jury instructions and case law precedent that will further refine and specify where and how irrelevant laws are to be applied.

Despite the general anti-gun attitude present in Virginia today, it is still ostensibly a pro self-defense state, and one where citizens have no obligation to retreat in or from their own home prior to resorting to lethal force in self-defense as long as the defender holds a reasonable belief that they or someone else will suffer great bodily injury, death or rape if they don’t use force to stop it.

Probably the most troubling part of Virginia’s laws on the matter or what is known as the reasonable belief specification.

Laws of this type, including this one, mean that a defender must be possessed of a reasonable belief that the harm or other injury they or someone else might suffer is it reasonable according to the standards of the people that are judging their actions in a court of law.

Said another way, a decision that a defender makes under extreme duress and stress, in an instant, will be judged at the leisure of people who were not there and not suffering sad stress in the same circumstances.

The bottom line is a jury will judge in hindsight the actions a defender took in extremis. You don’t need me to tell you how risky and potentially unfair this can be for a defender.

Restrictions

Simply stated, deadly force may never be used in Virginia to repel or stop any attack or offense that does not entail the risk of death or great bodily injury, with rape being the only exception.

Furthermore, Virginia law, though it does not require a defender to attempt retreat prior to resorting to force in their own home, States elsewhere that self-defense is only justifiable when the person who resorts to force in defense is completely free from any provocation, fault or other engendering of the attack against them.

Might a judge or jury find a failure to attempt to retreat when you had a few seconds to spare unreasonable?

Maybe they will, maybe they won’t. In short, though it is always a good idea to do everything possible that you can so long as it does not risk further harm in order to avoid using force and self-defense, you had a really better try in Virginia.

Assessment

Virginia’s castle doctrine law seems clear enough at first glance, and is definitely easy to understand, but it is in the interpretation of said laws and the jury instructions applicable to them they can put defenders in hot water throughout the state.

Nominally, so long as someone is using lethal force to prevent death or great bodily injury or rape from being inflicted upon themselves or someone else, they should be justified.

Virginia is technically a castle doctrine State according to the standards of our day, but theirs are far from the most reassuring.

Relevant Virginia Castle Doctrine Statutes

Following excerpts from Virginia Model Criminal Jury Instructions

Instruction No. 33.800 Self-Defense--Defendant Without Fault

If you believe that the defendant was without fault in provoking or bringing on the [fight;

difficulty], and you further believe that:

(1) he reasonably feared, under the circumstances as they appeared to him, that he was in

imminent danger of being killed or that he was in imminent danger of great bodily harm;

and

(2) he used no more force, under the circumstances as they appeared to him, than was

reasonably necessary to protect himself from the perceived harm,

then the killing was in self-defense, and you shall find the defendant not guilty.


Instruction No. 33.810 Self-Defense--Defendant With Fault--Retreat to Wall

If you believe that the defendant was to some degree at fault in provoking or bringing on

the [fight; difficulty], but you further believe that:

(1) he retreated as far as he safely could under the circumstances in a good faith attempt to

abandon the fight; and

(2) he made known his desire for peace by word or act; and

(3) he reasonably feared, under the circumstances as they appeared to him, that he was in

imminent danger of being killed or that he was in imminent danger of great bodily harm;

and

(4) he used no more force, under the circumstances as they appeared to him, than was

reasonably necessary to protect himself from the perceived harm,

then the killing was in self-defense, and you shall find the defendant not guilty.


Instruction No. 33.910 Transferred Intent--Self-Defense

If you believe that the defendant was acting in self-defense as to the actions of (name of

person defended against) at the time he [killed; wounded] (name of victim) accidentally, then you shall find him not guilty.


Instruction No. 52.500 Self-Defense--Defendant Without Fault

If you believe that the defendant was without fault in provoking or bringing on the [fight;

difficulty], and you further believe that:

(1) he reasonably feared, under the circumstances as they appeared to him, that he was in

imminent danger of bodily harm; and

(2) he used no more force, under the circumstances as they appeared to him, than was

reasonably necessary to protect himself from the perceived harm,

then he acted in self-defense, and you shall find the defendant not guilty.


Instruction No. 52.510 Self-Defense--Defendant With Fault--Retreat to Wall

If you believe that the defendant was to some degree at fault in provoking or bringing on

the [fight; difficulty], but you further believe that:

(1) he retreated as far as he safely could under the circumstances in a good faith attempt to

abandon the fight; and

(2) he made known his desire for peace by word or act; and

(3) he reasonably feared, under the circumstances as they appeared to him, that he was in

imminent danger of bodily harm; and

(4) he used no more force, under the circumstances as they appeared to him, than was

reasonably necessary to protect himself from the perceived harm,

then he acted in self-defense, and you shall find the defendant not guilty.


Instruction No. 52.525 Self-Defense--Presentation of or Brandishing a Firearm (Right to Threaten Force)

If you believe from the evidence that the defendant was without fault in provoking or

bringing on the incident and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm, then his [pointing, holding, brandishing] a firearm was in self-defense and you shall find the defendant not guilty.


The following statutes taken from the Virginia Code.

18.2-30. Murder and manslaughter declared felonies

Any person who commits capital murder, murder of the first degree, murder of the second degree, voluntary manslaughter, or involuntary manslaughter, shall be guilty of a felony.


18.2-31. Capital murder defined; punishment

A. The following offenses shall constitute capital murder, punishable as a Class 1 felony:

1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;

2. The willful, deliberate, and premeditated killing of any person by another for hire;

3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof;

4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;

5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy, or attempted forcible sodomy or object sexual penetration;

6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in § 9.1-101, a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36, when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1, an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733, an auxiliary deputy sheriff appointed pursuant to § 15.2-1603, or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;

7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;

8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;

9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248, involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;

10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of § 18.2-248;

11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman’s pregnancy without a live birth;

12. The willful, deliberate, and premeditated killing of a person under the age of 14 by a person age 21 or older;

13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4;

(…)


18.2-32. First and second degree murder defined; punishment

Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony.

All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.


18.2-33. Felony homicide defined; punishment

The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 and 18.2-32, is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five years nor more than forty years.

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