The following was submitted as a guest post. First a disclaimer: I am not a lawyer nor do I play one on the internet. I didn't even stay at a Holiday Inn Express last night. I'll answer the questions to the best of my knowledge, but my answers are not to be construed as legal advice. Only a lawyer can give you legal advice and I am not a lawyer. The original guest post is in black text. My answers are in red.
As a new member of VCDL, I thought you would be the right source to answer questions I have concerning the use of lethal force in Virginia.
1. Does Va. have a castle doctrine? How is it defined?
No. Castle doctrine bills have been introduced but we have not gotten one passed. Yet.
2. In Va. can you use lethal force to protect your property? What of the business owner?
No. Virginia law is very clear that the use of deadly force is only justified when there is a reasonable fear of death or great bodily harm. Protecting property does not fit that definition.
3. Does Va. recognize “Disparity of Force” "Example"(A 90 lb. 82-year-old man shooting a 25 year old, 300 lb. attacker who is unarmed?
Yes, however disparity of force is not a defense in and of itself. There still needs to be an overt act which would cause a reasonable person to be in fear of death or great bodily harm. In other words...if grandpa is afraid because the 300 lb youngster is following him, turns around and shoots him, he's probably going to jail. If, on the other hand, the 300 lb youngster physically attacks grandpa, disparity of force would PROBABLY be considered sufficient to justify using a deadly weapon even if the attacker were unarmed.
4. In Va. does a person have to retreat from an attacker or can he stand his ground?
There is no "duty to retreat" in Virginia, provided that the victim who defends himself was engaged in lawful activity when attacked, or was in his own home or place of business.
5. In Va. if you can use lethal force to protect yourself can you use it to protect someone else even if you are not in danger but the other person is?
Yes. Deadly force may be used to defend someone else IF you have a reasonable belief that the person you are defending is a "faultless victim" and they are in danger of death or great bodily harm.
6. In Va. can a private citizen make a citizen’s arrest, using a firearm if needed, on a misdemeanor or only a felony and does that person have the same arresting power as a police officer?
Virginia recognizes the Common Law concept of citizen's arrest, but only for felonies or "breaches of the peace" which the citizen effecting the arrest personally witnessed.
It is unclear whether using a firearm when effecting such an arrest would be appropriate, but I would imagine that it would not be unless there was a reasonable fear of death or serious bodily injury to the arresting citizen.
An arresting citizen does not have the same arresting power as a police officer in that a citizen cannot transport a suspect after arrest but can only detain him until Police arrive to take him into custody. Also, a citizen effecting a citizen's arrest is not protected from liability claims as Police conducting official duties are. If your citizen's arrest is eventually deemed to have been in error, or if you caused any physical harm during the arrest, you can be sued and would not have the liability protections afforded to Police Officers.
If this is not the right place to ask these questions maybe you can point me to the right place!
A good attorney is always the best place for legal information and the only place to get legal advice.
Thanks,
Sources: Summary of Virginia Firearms Laws
