Sunday, February 12, 2012

Rewriting 400 Years of Virginia Common Law

Last week, we voted on two bills relating to "The Castle Doctrine."  Some people call it the "Make My Day Law" or "Stand Your Ground" laws because they remove a common law duty to retreat if that can be done safely.  We have passed these bills in prior years, but this year, it actually stands a change of passing so it is worth talking about.

The name the "Castle Doctrine" comes from the concept that "a man's home is his castle."  The first bill (HB 48) creates a new Castle Doctrine in criminal cases - it says that if someone unlawfully enters "a dwelling" and commits and "over act" towards "an occupant," one may use deadly force.  The second bill (HB 14) creates civil immunity for the "occupant" defending the property - the shooter can't be sued by the deceased person's family. 

Virginia's current law dates back to our days as an English Colony.  It says that if you are attacked by someone or someone intrudes in your home, you are presently allowed to use a degree of force that is proportional or reasonable to your level of fear necessary to repel that person.  If you are in fear of your life, you can kill them.  If you are in fear of a paper cut, you can hit them.  It is up to jury to decide whether the force you used was justified.  On the civil side, the law is basically the same.

The proponents of this legislation haven't pointed to a single person in a Virginia jail or a single person who has had a judgment taken against them because these laws are not on the books. 

Different versions of the legislation previously required a person to fear a "serious" injury.  The word serious was struck so that if you are in fear of a papercut, you would now be able to kill someone.

The new bill uses words that are not found in similar statutes ("dwelling" instead of "dwelling house"). This kind of statutory ambiguity is the kind of thing that thirty page briefs and twenty page Supreme Court opinions are written about.

The defense applies not only to owners or residents, but any "person who lawfully occupies a dwelling." Presumably this would include invitees or guests.
Given the kinds of situations that I see in divorces and child custody disputes, these bills are going to result in a murder acquittal for someone who should go to jail.

The criminal bill was opposed by the Virginia Association of Commonwealth's Attorneys because they were comfortable with the existing law.  These proposals are bills that are in search of problems and introduce all kinds of uncertainty into what was formerly a very stable, predictable, and clear area of the law. 

I voted "No" along with twenty-seven other colleagues.

My floor comments are below.

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