When our team of VA criminal lawyers provide free criminal defense consultations to potential clients who are seeking a local criminal defense attorney, some cases require us to explore the possibility that self defense might be a plausible issue to raise as a defense to a criminal charge. Self defense is a nuanced concept and not as applicable as most people think, but we’ll try to provide you with a bit of clarity about self defense laws in Virginia in this post.
WHAT IS SELF DEFENSE?
Self-defense is the right to protect one’s person or property against some injury attempted by another. For centuries, that right was sacrosanct, but modern courts have chipped away at the right to defend one’s self and one’s property so that in many situations self defense is no longer a legal defense to a crime.
State and federal courts still pay lip service to the right to self defense, but as a practical matter, modern judges and juries often do not recognize the right when asked to acquit a person who in fact acted in self defense.
Nevertheless, the defense is still a legal defense to a criminal charge when a person believes another is about to commit an assault against him, his property, or another person.
JUDICIAL CONSIDERATIONS WHEN EVALUATING A SELF DEFENSE CLAIM
When considering the validity of a self defense claim, judges and juries have numerous questions to consider. For example:
- What is a sufficient level of force or violence for someone to use when defending themselves or others?
- What goes beyond that level?
- What if the intended victim provoked the attack?
- Is it the responsibility of the intended victim to try to flee from the violence if possible?
- Was the threat real or only perceived?
Over time, specific criteria have been developed which must be considered in order for a claim of self defense to be vindicated in the courts.
VIRGINIA SELF DEFENSE LAWS
Generally, self defense or defense of others is only considered to be justifiable in the face of an imminent threat. Imminence can be displayed through spoken words, which imply a threat of violence or through an actual physical display of force.
It should be noted that a self defense claim is only justifiable during the time in which a threat is ongoing. After the threat has ceased, the use of force is no longer appropriate and would be considered as an act of retaliation as opposed to self defense.
In addition to facing an imminent threat, self defense (or defense of others) requires a reasonable fear to justify an act of force or violence.
But what level of fear can be considered to be “reasonable”? Judges and juries are instructed to apply a “reasonable-person standard” which asks what an ordinary and reasonable individual would perceive under the same circumstances.
There are times when self defense can be justified even if the victim incorrectly believed that a threat was imminent. What matters is whether a “reasonable person” in the same circumstance would have also felt reasonable fear they were in danger of immediate harm.
When considering the validity of a self defense (or defense of others) claim, judges and juries must also consider whether the force used by the defendant was proportional to the threat perceived; that is, was the force used to repel the attack no more than was reasonably necessary under the circumstances as they appeared to the defendant?
For example, if the defendant was threatened with a baseball bat and chose to defend himself by shooting the aggressor, this might not qualify as self defense on the ground that the force used in defense was not proportional to the attack. However, if the defendant had reasonable fear that they were about to be shot and shoots back at the perpetrator, then this could be justified as reasonably necessary force.
Duty to Retreat
Virginia and many other states require a defendant, if he or she was to some degree at fault in provoking the initial attack, to have made an effort to retreat as far as safely possible in a good faith attempt to avoid a fight and make known his or her desire for peace before they can invoke self defense.
In these cases where the defendant is determined to be at fault, reasonable force, including deadly force, is only justified if the defendant can prove that they first tried to abandon the situation as a means of resolving the imminent threat.
STAND YOUR GROUND IN VIRGINIA
Because of the Virginia “Stand your ground” law, you can still make a self-defense claim even if you did not retreat before defending yourself. This only stands if every other qualification of self-defense is true.
Virginia deadly force laws state that whether or not you retreat or “stand your ground,” you can only use self-defense as justification for killing someone else if there was actual deadly danger present (not, for instance, if the person just used words to threaten you).
It can be complicated and a bit confusing to navigate Virginia law on deadly force and self defense. Even as a “Stand Your Ground” state, the use of deadly force in Virginia is a very serious situation.
If you have questions about the “Stand Your Ground” law in Virginia or any other self-defence matter, please contact Cook Attorneys immediately and let us help you know your options.
DO YOU THINK YOU MIGHT HAVE A SELF DEFENSE CLAIM?
Situations in which persons can defend themselves and the amount of force they are allowed to use can be complicated. Everything can be made much simpler with the advice and advocacy of an effective local criminal defense attorney.
If you or someone you know is in need of a lawyer for self defense law in Virginia, start by contacting our team at Cook Attorneys. We offer free initial consultations for most criminal defense clients.
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