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Wednesday, March 07, 2012

Virginia Hollowing Out The Castle Doctrine?

The nomenclature here gets almost esoteric so I'm inclined to call my lawyer and have him parse/explain it for/to me.  And with my law education being limited to business law, I'll simply pass this on to you without comment (comment risking my looking more like a fool than I do on the average day).  It's worth knowing:
VA Legislature Prepared to Undermine “Castle Doctrine”
Gun Owners of America

Modified legislation weakens current law --

Tomorrow [note: this was published yesterday], a conference committee in the Virginia legislature will be voting on “castle doctrine” language that would make things much, much worse for Old Dominion residents.

The conference language, as currently drafted, needs to be resoundingly defeated.

The problem is this:

Virginia, like 48 other states, has inherited (ultimately from England) a body of court-made law, called “common law.” This “common law” is the “law of the land” in Virginia unless it is overturned by statute.

Virginia common law provides that you can protect yourself in your home or elsewhere against the reasonable fear of imminent death or serious bodily injury.

Thus, if a person lawfully enters your house, but pulls a gun and starts shooting at people, under common law, you can use deadly force.

If a person is standing in your bedroom holding a gun in the middle of the night, under common law, you can use deadly force, even though that person has taken no “overt act.”

Unfortunately, the conference committee language being voted on by the Virginia legislature tomorrow would require both “unlawful entry” and an “overt act.”

Fine, we said. Just add language which would provide that the statutory language does nothing to overturn the protections of “common law,” but rather is in addition to your right to defend yourself at common law.

However, this is NOT the route the conference committee has chosen to go.

So the bottom line:

The conference language would REPEAL your common law right to defend yourself and your family against someone who legally entered your house, but turned violent.

The conference language would REPEAL your common law right to defend yourself and your family against someone who was illegally in your house in the middle of the night with a gun, but had committed no OVERT ACT.

ACTION: Contact your Virginia state Senator and Delegate immediately. Urge them to oppose the conference report on the castle doctrine unless there is a provision which grandfathers our “common law” protections. Even better, urge them to support a REAL Castle Doctrine Bill -- such as what was written for Attorney General Ken Cuccinelli by defense expert Daniel Hawes over the summer. [link]
Sometimes the best of intentions go awry.

The Virginia legislature?

If it were controlled by Democrats, I could see sinister forces in exertion here. But that ain't the case. So I'll chalk it up to a lack of insight into the law as it evolved over the centuries.

Fixable?

You betcha.

So go to it. Please.