Virginia's self defense laws provide that a non-aggressor is justified in using force against another person if (1) he reasonably believes (2) that the force is necessary (3) to protect himself from imminent use of unlawful force by the other person.1
Although not codified by statute, Virginia case law supports a version of the castle doctrine, providing that under certain circumstances, a person may use deadly force against someone entering his home.2
Virginia also has a "no retreat" or more commonly know as a "stand your ground" law, which means you are not required to "retreat", in other words try to escape, prior to using self defense, under certain circumstances.3
Self defense can provide a legal basis as a defense in cases, in part, involving:
- Assault and Battery
- Malicious Wounding
- Unlawful Wounding
For more information on Virginia's self defense laws, please see below:
Virginia law allows the use of self defense where a person:
- Reasonably believes
- He is in imminent danger of an overt act
- Threatening unlawful force, serious bodily harm, or death; and
- Uses the amount of force reasonable in relation to the harm threatened.4
The reasonable appearance that the use of force was justified is assessed from the subjective viewpoint of the defendant at the time he acted.5
Therefore, a person is justified in using force to repel an unlawful, imminent attack if he holds the subjective belief that the force is necessary, even if it later turns out that his belief was wrong, provided that his belief was reasonable.6
In other words, the defense does not apply to a person who truly believed that he needed to use force to repel an imminent unlawful attack, if it later becomes apparent that his belief was unreasonable.7
The purpose of this requirement is so that a person may not claim that he punched, hit, stabbed, etc... another person because of threatened bodily injury regarding future potential harm. This reflects the position that the use of force to repel an attack may only be used when necessary.8
Merely being afraid that another person make inflict bodily injury against him does not justify inflicting bodily injury against that person.9 There must be an overt act that puts the person in immediate danger of unlawful touching.10
Imminent means "...an immediate, real threat to one's safety..."11
As the Court in Bryd stated, in the context of the threat of serious bodily injury, "There must be . . . some act menacing present peril. . . [and] the act . . . must be of such a character as to afford a reasonable ground for believing there is a design. . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution."12
There is an important distinction between threats involving mere unlawful force and threats involving serious bodily harm or death. Threats involving mere bodily harm do not permit a person to use deadly force, only threats involving great bodily injury or death justify the use of deadly force.
A person may only use deadly force if there was a present danger of great bodily injury. Words alone are not sufficient to justify the use of deadly force.13
For instance if you were defending yourself from someone trying to commit:
- A murder
- A malicious wounding
- Or a rape
You may be justified in using deadly force in self defense, provided the other elements of the defense are met.
Deadly force is defined as force intended or likely to cause death or grievous bodily injury. This definition focuses on the likely outcome as opposed to the actual result.
In contrast, many batteries do not constitute deadly force. This is true even if the victim subsequently dies unexpectedly from the injuries. However, if the person injured is elderly or very sick, or otherwise a person who would be likely to die from a battery, the battery may constitute deadly force.
In Virginia, a person is only allowed to use the amount of force necessary to repel the force used against him.14
This rule requires that the force used must be proportional to the harm threatened. Excessive force is not protected. Therefore, when threatened with a non-deadly attack, a person is not justified in using deadly force to repel the attack.
In Virginia, the law does not necessarily require a person to retreat prior to using force, or even deadly force, when he is confronted with an aggressor, provided the other elements of the defense are met.
As a general rule, Virginia does not require a person to retreat before using deadly force when confronted with an aggressor.15
However, where a person has been the aggressor or otherwise at fault he must follow the rules relating to excusable self defense (see below) for the use of self defense to be lawful.
In order to determine whether a person is required to retreat prior to using self defense it is necessary to determine whether the use of self defense is justified or merely excusable. This focuses on the prior actions of the person claiming self defense.
Justifiable self-defense applies where a person is free from any fault in provoking the attack.16
If the defendant is "even slightly at fault" in contributing to the assault, the use of self defense is not justifiable (but may be excusable, see below).17
In some circumstances a defendant may be justified in using deadly force even though he is not an entirely innocent party, but certain requirements must be met.
The court in Bailey stated: "Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm."18
An aggressor may be defined as one whose "affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences."
This follows Virginia's general rule that if you were at fault or had provoked the aggressor, you are required to retreat as far as safely possible before using deadly force.19
The aggressor may use force in self defense only after having totally abandoned the original attack.20
The legal defense of self defense does not apply in situations where two persons willingly or voluntarily mutually engage in combat to "gratify their passion."21
Where someone is assaulted, presuming the elements of self defense are met (see above) he may defend himself. The ensuing struggle between the two is not mutual combat.22
In Virginia you are allowed to defend not only yourself from harm, but also other persons in certain circumstances. Virginia's rule is that you step into the shoes of the person he/she defends. Therefore, if the person being defended would have been justified in using self defense, the third party defending that person is as well.23
However, a third party may not defend another unless he reasonably believes that the other person was without fault in provoking the attack.24
As a general rule, Virginia law does not allow deadly force to prevent an entry into a home or dwelling. Non deadly force on the other hand may be used to prevent an unlawful entry into a dwelling.25
However, Virginia case law does support a version of the "castle doctrine" which allows deadly force to prevent an entry into a dwelling where a person reasonably believes the intruder will commit great bodily injury or death against him.26, 27
It is important to note that the castle doctrine in Virginia, arguably, only applies prior to when the intruder has entered the home, but where the intruder is already in the home only the normal rules of self defense would apply with respect to the use of deadly force.28
So, if a homeowner wakes up in the night and finds the intruder already inside his house, it may be argued that he may use deadly force, but only if the usual rules regarding the use of deadly force apply.
Virginia law does not allow deadly force to defend property, aside from a dwelling.
The defense of property defense in Virginia allows a person to retain possession of property he is in rightful possession of.
He may only use the amount of force necessary to prevent the dispossession of his property, and no more.
There are numerous criminal charges which routinely bring up self defense issues. Most of the time these are crimes of violence. The most common would likely be assault and battery cases due to the large volume of these cases in Virginia. Other common crimes include assault on law enforcement, resisting arrest, burglary, robbery, and murder.
A battery in Virginia is defined as the least touching of another, willfully or in anger; this includes touching done in a spirit of rudeness or insult.29
The conduct punishable as a battery ranges between an intentional bump or spitting on another to punching and kicking someone.
An unlawful touching against another would allow the person touched to use self defense against the aggressor, provided the other elements are met. It is important to remember that any defense used must be proportional to the initial unlawful touching by the aggressor. Therefore, for instance, if someone spit on another person, the victim is not justified in taking out a knife and attempting to to repel the aggressor in this manner.
A battery on a police officer prohibits the unlawful touching of a law enforcement officer. The Virginia Code makes this crime a felony. A police officer is entitled to use force when making an arrest if the situation requires it. However, if a police officer arrests you unlawfully, you are entitled to use reasonable force to defend yourself.30
Va Code § 18.2-479.1. Fleeing from a law-enforcement officer, or resisting arrest, prohibits a person from intentionally preventing or attempting to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant.
In cases where the law-enforcement officer's arrest was not lawful, or the force used in the arrest was excessive in nature, self defense may apply as a legal defense. But in order for the defense to apply the elements must be met, i.e. reasonable belief of an imminent overt act by the officer using unlawful force, and the resistance applied by the defendant must be proportional or reasonable.
Robbery, a common law crime in Virginia, is defined as a "taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation."31
The crime of robbery requires violence or intimidation. Therefore, in most cases using self defense to a robbery will be justified. If the assailant in the case used a knife or gun in the robbery, the use of deadly force will likely be justified, presuming the other elements of the defense are met.
Rape in Virginia is defined by § 18.2-61. Rape. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape."
If a person reasonably believes that he/she is in imminent danger of being raped, he/she will be justified in using self defense against his/her assailant, and in many cases will be justified in using deadly force to repel the attack.
Murder is the killing of a human being with malice aforethought.32 The full definition of malice aforethought is beyond the scope of this article, but is defined in part as, "(1) the intent to kill, (2) the intent to inflict grievous bodily harm, (3) extremely reckless indifference to the value of human life..., or (4) the intent to commit a felony."33
In cases where a person reasonably believes he has been placed in imminent danger of being killed, or imminent danger of grievous bodily harm, he/she is justified in using deadly force to repel the attack.
Burglary in Virginia consists of: (1) The entering at night with or without breaking; the entering in daytime by breaking; or the entering and concealing of oneself; (2) Within a dwelling house, office... (3) With intent to commit murder, rape, robbery, larceny, arson, or any felony.
When someone enters a persons home with the intent to commit a felony, in many cases the castle doctrine as discussed in this article will apply. Furthermore, if the assailant places a person in danger of imminent serious bodily injury or death, he/she is justified in using deadly force against the assailant.
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- "To establish a claim of self-defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).Whether the danger is reasonably apparent is judged from the viewpoint of the defendant at the time of the incident. Id. The defendant must also show that he was in imminent danger of harm, that is, a showing of an overt act or other circumstance that affords an immediate threat to safety. Commonwealth v. Cary, 271 Va. 87, 99, 623 S.E.2d 906, 912 (2006).
- Finally, when a party assaults a homeowner in his own home, as in this case, the homeowner has the right to use whatever force necessary to repel the aggressor. Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922) (recognizing the law derived from the "Defense of the Castle" doctrine provides that "a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant . . . even to the taking of life"). Hines v. Commonwealth (Va. App., 2016)
- Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958).
Hill v. Com, 553 S.E.2d 529 (2001).
- McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). (stating "The law of self-defense is the law of necessity.... [A] defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim. It is not essential to the right of self-defense that the danger should in fact exist. If it reasonably appears to a defendant that the danger exists, he has the right to defend against it to the same extent, and under the same rules, as would obtain in case the danger is real. A defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted. These ancient and well-established principles ... emphasize the subjective nature of the defense, and why it is an affirmative one.")
- "The 'bare fear' of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life. Stoneman v. Commonwealth, 66 Va. 887, 900 (1874).
- 'There must [also] be some overt act indicative of imminent danger at the time.' Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E. 775, 776 (1935)
- Black's Law Dictionary 399 (7th ed.1999).
- Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893).
- Harper v. Com, 196 Va. 723 (1955).
- Hill v. Com, 553 S.E.2d 529 (2001).
- Adams v. Com. 163 Va. 1053 (1935).
- Lynn v. Com., 499 S.E.2d 1, 9, 27 Va.App. 336 (Va. App., 1998) (stating "A claim of self-defense may be either justifiable or excusable; if it is either, the accused is entitled to an acquittal. See Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958). "Justifiable homicide in self-defense occurs [when] a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Id. (emphasis added). "If an accused `is even slightly at fault' at creating the difficulty leading to the necessity to kill, `the killing is not justifiable homicide.'")
- See Smith v. Com., 435 S.E.2d 414, 416, 17 Va.App. 68 (Va. App., 1993) (stating "If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Quoting Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985); Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933). Any form of conduct by the accused from which the fact finder may reasonably infer that the accused contributed to the affray constitutes "fault." Quoting Bell v. Commonwealth, 2 Va.App. 48, 58, 341 S.E.2d 654, 659 (1986)."
- Bailey, 200 Va. at 96, 104 S.E.2d at 31. See also Lynn v. Com., at 8 (Va. App., 1998) "Excusable self-defense may be asserted when the accused, who was at some fault in precipitating the confrontation with the victim, abandons the fight and retreats as far as he or she safely can before attempting to repel the attack."
- See Adams v. Com. 163 Va. 1053 (1935).
- See Jones v. Com., 82 S.E.2d 482, 196 Va. 10 (Va., 1954) (stating "When two persons enter willingly into a combat, not for self protection but to gratify their passion by inflicting injury upon each other, the doctrine of self-defense cannot be invoked on behalf of either.")
- See Harper v. Com., 165 Va. 816, 183 S.E. 171 (Va, 1936) (stating "To be mutual it must have been voluntarily and mutually entered into. If this were not so, every fight would be a mutual combat, without regard to the manner in which it began. Mutual combat would be its synonym and have no special meaning. One who is assaulted may and usually does defend himself, but the ensuing struggle cannot be accurately described as a mutual combat."
- Coleman v. Com, 184 Va. 197 (1945).
- See Foster v. Com., 412 S.E.2d 198, 201, 202, 13 Va.App. 380 (Va. App., 1991) (stating "Like self-defense, the circumstances in which the protection of others may be raised as a defense are carefully circumscribed so as to preclude such a claim in situations where one has instigated the fray in order to provide an excuse for assaulting or murdering his enemy. In a majority of jurisdictions, a person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself. 40 Am.Jur.2d Homicide § 171 (1968). Thus, the right to defend another "is commensurate with self-defense." Id. Consequently, in those jurisdictions which recognize the defense, the limitations on the right to defend one's self are equally applicable, with slight modifications, to one's right to defend another. One must reasonably apprehend death or serious bodily harm to another before he or [13 Va.App. 386] she is privileged to use force in defense of the other person. The amount of force which may be used must be reasonable in relation to the harm threatened. See Diffendal, 8 Va.App. at 421, 382 S.E.2d at 25-26 (delineating limitations in self-defense context)."
- See Id at 202. "Accordingly, we hold that the law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray."
- See Fortune v. Commonwealth, 133 Va. 669, 112 S.E. 861 (Va., 1922) (stating "The general rule is that, while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the—
"Defense of the Castle.—In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense; and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that, while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like—cases not within the line of our present exposition. From this doctrine is derived another, namely: That the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan: 'A man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life.'"But in no case, even within one's own home or curtilage, is a person wholly justified in taking the life of another who has entered the home or curtilage peaceably, on an implied license, merely to punish or subdue him, or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony."
If a man enters another's dwelling house peaceably, on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein. * * * Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling house, will constitute felonious homicide.")
- See Hines v. Commonwealth, 791 S.E.2d 563 (Va., 2016) (stating "Finally, when a party assaults a homeowner in his own home, as in this case, the homeowner has the right to use whatever force necessary to repel the aggressor. Fortune v. Commonwealth , 133 Va. 669, 687, 112 S.E. 861, 867 (1922) (recognizing the law derived from the “Defense of the Castle” doctrine provides that “a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant ... even to the taking of life”)."
- Hinkel v. Com., 137 Va. 791, 794, 119 S.E. 53, 54 (1923); Lynch v. Com., 131 Va. 762, 766, 109 S.E. 427, 428 (1921).
- "It has long been held in Virginia that where an officer attempts an unlawful arrest, the officer is an aggressor which gives the arrestee the right to use self-defense to resist so long as the force used is reasonable." Brown v. Commonwealth, 27 Va. App. 111, 116-17 (1998).
- Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968).
- Black's Law Dictionary 399 (7th ed.1999).