Stand Your Ground Law: Virginia

Despite recent, serious and marked anti-gun initiatives, Virginia is a state that still has reasonably robust laws concerning self-defense on its books. It even has a form of what would recognizably be called Castle Doctrine and stand-your-ground provisions.

However, Virginia is far more restrictive regarding the circumstances under which one may claim self-defense and take advantage of either provision, and in both cases part of the protection is afforded by jury instructions or an omission of statutes to the contrary.

Virginia is a state where you must act in an absolutely and indisputably upright fashion and hopefully in the most clear-cut circumstances if you want to have a positive outcome after a self-defense encounter.

Keep reading to learn more and be sure to check out the provided relevant jury instructions and statutes concerning self-defense at the end of the article.

What You Need to Know

• The State of Virginia allows a citizen to use an appropriate level of force in meeting unlawful force against themselves or someone else provided that the defender reasonably believes the level of force is necessary to prevent harm.
• Virginia has a recognizable stand-your-ground provision but it may only be invoked under fairly strict circumstances and it relies upon jury instructions to benefit the defender.
• Lethal force may only be employed as a defense against certain forcible felonies, particularly murder, malicious wounding that could result in great bodily injury or rape.

General Provisions

The use of force in self-defense within the State of Virginia is fairly clear cut according to the state statutes, but where most people get snared when they find themselves in the aftermath of such unhappy circumstances is in the copious amounts of case law and jury instructions that further focuses and defines the law as it is applied.

Generally, self-defense is permissible in Virginia and one, ostensibly, has no duty to retreat so long as all elements required for justifiable use of force and defense are present.

Regarding lethal force in defense, a person must hold a reasonable belief that they will be facing death or great bodily injury or rape if such force is going to be used in defense. Furthermore, the attack, whatever it is, must be imminent, not something that may or may not occur in the future.

Once again we find the reasonable belief mandate, which specifies that the defender must have a subjective viewpoint that the force being used against them warrants the use of an appropriate level of force at the moment to prevent it.

It is worth noting that even if the defender’s belief turned out to be wrong, provided it was reasonable and informed by the circumstances the claim of self-defense will still be valid. This is so perilous because it is up to a jury to decide whether or not the decision was reasonable in hindsight.

Restrictions

The use of force in self-defense must always be proportional to the unlawful force being directed at the victim. Deadly force may never be used to repel a non-deadly attack with the sole exception being rape which is classified as grievous bodily harm for the purposes of self-defense.

And though Virginia nominally does not require a defender to retreat before using force in defense in any place they have a legal, lawful right to be, self-defense is only classified as justifiable when the defender is otherwise completely free from any fault and provoking or instigating the attack.

If the defender has any responsibility, no matter how slight, in provoking the attack self-defense may still be validly claimed, but it will now be categorized as excusable self-defense.

Once again, this will come down to the opinions of judges and juries, and in an increasingly leftist State like Virginia, you don’t want to take your chances.

Lastly, now as always self-defense may never be claimed in cases of legitimate mutual combat entered by agreement between both parties.

Assessment

The state of Virginia is a decidedly mixed bag when it comes to self-defense law. The statutes on the books are reasonably clear-cut and seem to affirmatively protect citizens’ rights to employ force in defense of themselves or someone else when they are threatened with the use of unlawful force.

Unfortunately, the guidelines and provisions for claiming self-defense and standing one’s ground are mostly established due to case precedent and jury instructions, and are far from sturdy compared to other states with legally enshrined provisions of like kind.

Relevant Virginia Use of Force 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 are 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;

14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under § 16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and

15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person’s duties in such case.

B. For a violation of subdivision A 6 where the offender was 18 years of age or older at the time of the offense, the punishment shall be no less than a mandatory minimum term of confinement for life.

C. If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.

…

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.