Virginia Case Law on Firearms and the Use of Deadly Force


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"The right of self defence is the first law of nature..." - St. George Tucker


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Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act

Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567 (2000).
 

"In this appeal, we decide whether a deadly weapon may be brandished in defense of personal property.

Jon Douglas Alexander was charged with attempted murder in Rockbridge County. At a preliminary hearing on that charge, the general district court reduced the charge to that of brandishing a firearm in violation of Code §18.2-282 and convicted defendant Alexander of that charge.

Michael T. Eustler, an agent of the lien holder of the defendant's vehicle, sought to repossess the vehicle. When Eustler arrived at the defendant's home, the defendant agreed to its repossession provided he could remove certain papers and tools valuable to him and having nothing to do with the vehicle being repossessed.

Although Eustler agreed to permit the defendant to retrieve the items, Eustler "jacked up" the vehicle as the defendant was partially in the front seat. Eustler approached the defendant in a belligerent manner, and demanded the keys to the vehicle. Feeling threatened, the defendant entered his house and emerged with the keys as well as an unloaded rifle which he placed in a flower bed that was close to the vehicle. When Eustler again approached in a belligerent manner, the defendant retrieved the rifle and held it at his side. The defendant felt compelled to raise the rifle to his shoulder when he thought that Eustler was going to assault him. However, the defendant did not point the gun at Eustler until Eustler kept coming at him, at which time, Eustler "finally backed off." Eustler later called the police.

We need not resolve the defendant's claim that Eustler's actions were "unwarranted and illegal . . . in attempting, by other than peaceful means, to unlawfully take [defendant's] personal property." Even if Eutsler's actions were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said:

The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies.

There is a recklessness-a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty." See, also, 1 Bishop on New C. L., secs. 839, 841, 850. However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree.

The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935), we said:

Judge Moncure, in the Hardy Case, 17 Gratt. (58 Va.) 592, 600, [1867] quoted with approval from an old English case, thus: "An assault is any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, as by striking at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it."Such a threat may give the threatened person a right to defend himself by the use of a deadly weapon. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Further, as the dissenting opinion of the Court of Appeals notes, "[p]ermitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat." 28 Va. App. at 780, 508 S.E.2d at 916 (Judge Bumgardner, dissenting); 30 Va. App. at 153, 515 S.E.2d at 808 (en banc) (Judge Bumgardner, with whom Chief Judge Fitzpatrick joins, dissenting). Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. Indeed, in Montgomery, it was the landowner's brandishing of a sharpened corn-cutter that provoked the defendant's physical assertion of his right of self-defense. 98 Va. at 841-43, 36 S.E. at 372-73. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Therefore, we conclude that the Court of Appeals erred in reversing the trial court's judgment. "

See Also: Morris v. Commonwealth, 269 Va. 127, 607 S.E.2d 110 (2005).

"We disagree with Morris. "Brandish" means "to exhibit  or expose in an ostentatious, shameless, or aggressive  manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd]  like that," and then pulled up his shirt to uncover the  flare gun, he exhibited or exposed the weapon in a  shameless or aggressive manner. And Morris brandished the  weapon in such a manner as to reasonably induce fear in the  mind of Peter Molina. Although Molina may not have said he  was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is  sufficient to prove the "induced fear" element of a  conviction for brandishing a firearm under Code 18.2-282."

See Also: Huffman v. Commonwealth, 51 Va. App. 469, 658 S.E.2d 713, (2008).

 

"This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).


In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm."



Abduction by Firearm /Trespass

Bounty Hunter or Bail Bondsman Must Be Licensed In Virginia

Collins v. Commonwealth, 57 Va. App. 355, 702 S.E.2d.267 (2010)

"Appellant drove his truck into the parking lot and "parked perpendicular to the back" of C.S.'s vehicle, blocking it in. Appellant then got out of his truck with a Glock handgun in his right hand, pointing it at C.S. Appellant said, "I believe you see what it is m*****f***, you know what it is." When C.S. said he did not have any money, appellant said, "this ain't about money. Appellant then grabbed C.S. by the shoulder and started pulling him toward the truck. Appellant called him "Jimmy" and continued to curse at him...Having determined that C.S. was not the fugitive that he was seeking, appellant and his employee got back into the truck and left. After appellant drove away, C.S. called 911 and informed the dispatcher that someone had just pointed a gun at him in the parking lot...

Appellant relies upon Taylor v. Taintor, 83 U.S. 366, 371 (1873), and Levy v. Arnsthall, 51 Va. (10 Gratt.) 641 (1854), to support this argument that the common law allows bail bondsmen to capture their bailees if they are found in another state - whether the bail bondsman is licensed in the other state or not. The Commonwealth argues that, if such a common law right existed at one time, that right has been restricted by statute in Virginia...The licensing scheme created by the General Assembly when it enacted Articles 11 and 12 expressly limited the practice of bail bondsmen and their agents to only those people licensed by the Commonwealth to engage in these practices. In fact, the legislature specifically criminalized the practice of acting as a bail bondsmen or bail enforcement agent in Virginia "without a valid license issued by the Department." Code § 9.1-185.18; Code § 9.1-186.13. This Court would have to ignore the "expressly stated or necessarily implied" changes that the legislature made to the common law in order to find that a person, licensed as a bail bondsman by another state, may enter Virginia and act as a bail bondsman without a license issued by the Department of Criminal Justice Services....The General Assembly also expressly regulated the behavior of bail bondsmen and bail enforcement agents in Virginia by enacting Articles 11 and 12. For example, bail bondsmen and bail enforcement agents must complete firearms training if they carry a firearm, Code § § 9.1-185.11; 9.1-186.9, must verbally identify themselves on entering a residence, Code § § 9.1-185.15(B); 9.1-186.12(B), and must (absent exigent circumstances) give the police twenty-four hours notice "of the intent to apprehend a bailee," Code § § 9.1-185.15(C); 9.1-186.12(C). Bail bondsmen, who are licensed in Virginia under Code § 9.1-185, and "licensed bail enforcement agents" are the only people expressly permitted "at any time" to seize their bailees within the Commonwealth. Code § 19.2-149.

CONCLUSION: The General Assembly has enacted statutes specifically regulating the licensing and practice of bail bondsmen and bail enforcement agents, abrogating any common law authority that in the past may have permitted out-of-state bail bondsmen to enter Virginia and forcibly take a bailee back to another state. As a result, appellant had no legal justification for his attempt here to abduct C.S. from the parking lot beside the church. Furthermore, the evidence clearly supports the factfinder's conclusion that appellant intended to abduct the victim. Given the trial court did not err in convicting appellant of attempted abduction, we also find no reason to overturn his conviction for use of a firearm in the commission of a felony. Therefore, we affirm appellant's convictions for attempted abduction and use of a firearm in the commission of that felony."



Charles Hithcock v. Commonwealth, Va. App. (1998 Unpublished):

"Appellant argues that he had "legal justification" to confront and detain Austin and Perryman because they trespassed onto his property. Assuming, as the facts suggest, that Austin and Perryman were trespassing, appellant's argument has no merit.  Virginia common law has long recognized the right of a landowner to order a trespasser to leave his property, and, should the trespasser refuse, "to employ proper force to expel him, provided no breach of the peace is committed . . . ." Pike v. Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839, 840 (1997) (emphasis added). However, although a proprietor may use such force as is reasonably necessary to expel a trespasser, a proprietor may not unlawfully seize or detain a trespasser. Cf. Montgomery v. Commonwealth, 99 Va. 833, 835-36, 37 S.E. 841, 842-43 (1901) (no right to attack trespasser). Accordingly, even if Austin and Perryman were trespassing, the appellant had no right to abduct them under Virginia law." 

See Also: Walker v. Commonwealth, 272 Va. 511, 636 S.E.2d 476 (2006), Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755 (2004) , Brooks v. Commonwealth, Va. App. (2004 Unpublished).

 

 

Montgomery v. Commonwealth 99 Va. 833, 37 S.E. 841 (1901).

"That these conclusions are correct, we cannot doubt. Montgomery was on Randolph's premises, not on Davidson's, and the latter had no right to order him away. If he had been on Davidson's premises, the latter would have had the right to order him away, and, if he refused to go, to use proper force to expel him; but that right did not authorize him to commit a breach of the peace in the outset. It is one thing to commit an assault and battery for the purpose of expelling a trespasser, and quite another thing to lay hands on him in a proper manner solely to expel him. In the one case the trespasser has the right to strike in defense; in the other his right and duty are to go. If Davidson had only intended to use the proper force, he had no right to demand the gun. It did not belong to him, and no improper use had been made or was threatened to be made of it. No reasonable conclusion could be drawn from Davidson's acts and demand than that he intended to make an attack. Being in the wrong, his duty was to stop when warned that he would be shot. The warning did not put Montgomery in the wrong, but its disregard, the seizure of the corn cutter, and the quick and violent assault therewith entitled him to defend himself as far as necessary to prevent bodily harm to himself. The instruction would have so informed the jury, and should have been given.

The motion to set aside the verdict should have prevailed. The evidence shows that Davidson ordered Montgomery to leave premises which were not in his possession or under his control; that, because Montgomery said he would go when he got ready, Davidson made an assault upon him, and a demand for Montgomery's property, which he would not have been justified in doing if Montgomery had been a trespasser on his possession; that Montgomery got up, warned Davidson that he would shoot him if he persisted, jumped back 10 or 12 feet, was immediately set upon with great violence by a man armed with a dangerous weapon, was disarmed by his gun being discharged when knocked up by his adversary, and by its breaking in two from a lick which made bruises, but does not appear to have caused one moment's hesitation on Davidson's part, or to have lessened his ability to overcome Montgomery; that Montgomery, in the scuffle, got possession of the corn cutter, gave Davidson one cut on the scalp about 1 1/2 inches long, was pressed back 30 or 40 yards, thrown to the ground, and beaten by Davidson after he was down."

 


Instigation Produces Manslaughter, Not complete Justifiable Homicide

 

 Connell v. Commonwealth, 34 Va. App. 429, 542 S.E.2d 49 (2001)
 

"If we interpret the discussion of "imperfect defense" in Hash for the proposition that one can provoke a confrontation and still avail himself or herself of the defense of justifiable homicide, such holding was overruled by Jackson v. Commonwealth, 98 Va. 845, 36 S.E. 487 (1900). However, if we interpret Hash to hold that one may avail himself or herself of "imperfect defense" if he or she provoked an attack without felonious intent, such holding merely is the law of voluntary manslaughter as it currently stands in the Commonwealth...

...Five years after Hash, the United States Supreme Court cited several common law treatises for the proposition that "where the accused embarks in a quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or killing, and under reasonable belief of imminent danger he inflicts a fatal wound, it is [manslaughter,] not murder." Wallace v. United States, 162 U.S. 466, 471 (1896). Applying that principle, the Court observed the following: Granting that the jury would have been justified in finding that [the accused's] intention in going for the gun and returning with it as he did was to inflict bodily harm on [the deceased] if he did not leave, still the presumption was not an irrebuttable one, and it was for the jury to say whether [the accused's] statement that he procured the gun only for self protection was or was not true. And if they believed from the evidence that this was true, and that the killing was under reasonable apprehension of imminent peril, then it was for the jury to determine under all the facts and circumstances whether [the accused] had committed the offense of manslaughter, rather than that of murder, if he could not be excused altogether. Id. at 477. "


Instigation As Applied in Another Case

 Darryl Carneal Law v. Commonwealth, Va. App. (2001 Unpublished)
 

"A jury convicted Darryl Carneal Law of second degree murder, use of a firearm in the commission of a felony, and maliciously discharging a firearm in an occupied building. On appeal, he contends the trial court erred in refusing his proffered instruction of justifiable self-defense. We conclude the defendant was at fault in bringing about the dispute, and the trial court properly refused the instruction...

On the day of the murder, the defendant and the victim installed a new phone in Watkins' sitting room, but then they got into an argument over whether to discontinue the caller identification service. The argument shifted to payment for long distance charges made by the defendant and continued to whether the defendant should pay rent. The defendant accused Eggleston of failing to take care of his sister, of infidelity, and of not being the father of his children. Eggleston told him to mind his own business, and the defendant replied, "I think I am minding my damn business." Eventually, Eggleston ordered the defendant to leave the house if he could not pay rent and said, "I will fix your damn ass." Eggleston backed into a nearby room and put his hand in his pocket.

The defendant testified that he felt "real fear" when Eggleston said, "I will kill your damn ass" because he understood the victim carried a weapon. The defendant thought Eggleston "had something in his pocket" and "was aiming to do me bodily harm." The defendant grabbed a gun, fired it twice, and killed Eggleston.

"Justifiable homicide in self-defense occurs where 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." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958) (citations omitted). If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985) (citing Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933)). Verbal statements may constitute fault that defeats a claim of justifiable self-defense. In Scott v. Commonwealth, 143 Va. 510, 129 S.E. 360 (1925), the victim's father, the town policeman, arrested companions of the defendant. The defendant confronted the victim and started insulting his father calling him a bootlegger and a gambler. The victim told the defendant not to say such things; the defendant dared the victim to stop him. The court held misconduct "includes . . . violent and indecent language . . . calculated to provoke a breach of the peace." Id. at 516, 129 S.E. at 362. Though the victim struck the first blow, the defendant was at fault which eliminated his claim of justifiable self-defense.

Though the victim may have started a verbal argument, continuing it may constitute fault that defeats a claim of justifiable self-defense. In Adams v. Commonwealth, 163 Va. 1053, 178 S.E. 29 (1935), the victim remarked to a group that included the defendant, "You sons of bitches certainly can sing." Id. at 1057, 178 S.E. at 30. The defendant took exception to the remark, and the two began to curse each other. The defendant challenged the victim to continue the argument out in the street. There the victim threw the first blow, but the defendant was not justified in slaying him because the defendant was at fault. Id. at 1058, 178 S.E. at 31.

Continuing a long standing conflict may constitute fault. In Smith v. Commonwealth, 165 Va. 776, 182 S.E. 124 (1935), the ongoing feud was so bitter the defendant armed himself in case of a chance encounter with the victim. On the day of the murder, the defendant refused to leave when asked and though the victim struck first, the bitterness of the feud was sufficient to constitute fault. Continuing the bitter feud prevented the defendant from being free from fault "in the minutest degree." Id. at 785, 182 S.E. at 128. The trial court properly refused to instruct on justifiable self-defense.

...When the victim attempted to end it by saying, "just drop it," the defendant changed the subject of dispute and renewed the argument. He continued that course of conduct until the tragic end. Any form of conduct by the accused from which the fact finder may reasonably infer that the accused contributed to the affray constitutes "fault." Bell v.

Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d 654, 659 (1986). "The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).

We conclude the defendant was at fault in bringing about the difficulty, and the trial court properly refused to instruct on justifiable self-defense. "


Justifiable Homicide When Appropriate Force is Used

 Kevin Harris v. Commonwealth, Va. App. (2001 Unpublished)
 

"Here, the evidence is sufficient to support Harris' conviction for voluntary manslaughter. While armed with a handgun, Harris went to Wilhite's house to confront Wilhite's brother about assaulting Harris' brother. Before leaving, Harris threatened the boys, stating "I will deal with y'all when I come back." Wilhite, however, followed Harris to the convenience store, and the two argued and fought inside the store. When Harris left the store, before the police arrived, the store clerk believed that "everything was all right."

Wilhite followed Harris. Harris faced Wilhite, told him to "get back," and shot Wilhite four times. Wilhite was standing three to five feet away from Harris, and Wilhite was unarmed. The Commonwealth's evidence was competent and not inherently incredible.

"Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citation omitted). "Whether the evidence raises such a reasonable doubt is a question of fact that will not be disturbed on appeal unless plainly wrong or unsupported by the evidence." Utz v. Commonwealth, 28 Va. App. 411, 415, 505 S.E.2d 380, 382 (1998) (citation omitted).

Killing in self-defense may be either justifiable or excusable. If it is either, the accused is entitled to an acquittal.

"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. "Smith, 17 Va. App. at 71, 435 S.E.2d at 416 (citations omitted).

Harris' evidence does not prove as a matter of law that he acted in self-defense. See Nelson v. Commonwealth, 168 Va. 742, 747, 191 S.E. 620, 622-23 (1937) (recognizing principle that undisputed facts may establish self-defense as a matter of law);

Hensley v. Commonwealth, 161 Va. 1033, 1034-35, 170 S.E. 568, 568-69 (1933) (finding self-defense as a matter of law where accused shot and killed victim after victim, in an unprovoked attack, stabbed the accused in the face);

Whether Harris was acting in self-defense was a factual issue for the jury. The jury was properly instructed on the law of self-defense.

Although Harris contends that Wilhite was the aggressor and that he, Harris, acted in self-defense, the jury was not required to believe this testimony. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

Moreover, even if the jury believed that Wilhite in some manner had threatened Harris, by striking Harris again outside the store or by advancing toward him, on this evidence, the jury could have found that Harris used more force than necessary to repel the threat. See Cook v. Commonwealth, 219 Va. 769, 773, 250 S.E.2d 361, 364 (1979) (stating that one "may use only such force as appears to him reasonably necessary to repel the attack"); Foote, 11 Va. App. at 69, 396 S.E.2d at 856 (same).

The evidence does not prove as a matter of law that Harris acted in self-defense. The jury was instructed on the law of self-defense and implicitly rejected that claim."
 
 
 



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