Virginia Law of Self Defense
Virginia law protects the use of reasonable and proportional force to defend life, limb, and property. This right extends to individuals and to those they seek to protect (third parties). Virginia recognizes justifiable and excusable self-defense.
Self-defense, however, is not summarized in a statue or through a simple equation. Instead, self-defense is defined broadly by Virginia courts as the amount of force used to defend oneself that is not excessive and is reasonable in relation to the perceived threat. This means that judgment as to whether the use of force was reasonable will be determined on a case-by-case basis, ex-post-facto.
Think and act carefully and cautiously when you use force. You may have to defend your actions in court.
Virginia police and prosecutors will decide whether to charge someone who used force in self-defense. They will evaluate each case based on physical evidence, eyewitness observations, and statements made by the person claiming self-defense. Unfortunately, firearm owners in Virginia frequently find themselves charged with brandishing, manslaughter or even murder when law enforcement officers and prosecutors do not believe self-defense was a valid claim.
As such, self-defense is most commonly used by a criminal defense attorney as an affirmative defense to a criminal charge. Self-defense is used as a defense in the following types of Virginia cases: Murder, Manslaughter, Assault and Battery, Brandishing a Firearm, Disorderly Conduct, Reckless Handling of a Firearm, and Resisting Arrest.
“… a person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault.”
This article is written by top rated Use of Force and Self-Defense trial attorney Marina Medvin, a former National Rifle Association (NRA) law clerk, an NRA Lifetime Member, and an avid supporter of the right to self-defense.
Ms. Medvin’s Virginia law offices are located in Alexandria and in Fairfax. Ms. Medvin has represented numerous individuals in Alexandria, Fairfax, Arlington, Vienna and Falls Church, who invoked the right to self-defense, including police officers and military officers charged or criminally investigated.
If you are being investigated by the police or have already been charged with a crime, please call us to see if you qualify for a consultation.
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Understanding Self-Defense
In Virginia and many other states, self-defense is all about proportions. Your actions must be proportional to the assailant’s actions. A person “shall not, except in extreme cases, endanger human life or do great bodily harm.” The Virginia Court of Appeals has put it best when they said:
“… the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.”
Stated simply, what we take away from this is this: you probably can’t just shoot someone for punching you in the face and call it self-defense under VA law.
You must also be able to articulate to the court that the assailant acted in a threatening manner as to your safety or life. It is not enough to just say that you feared him; the details of the threat are of ultimate importance. For this reason, it is in your best interest to only make a statement to the police under an attorney’s advice and supervision.
Under Virginia law, lone fear that a person intends to inflict serious bodily injury onto you, however well-grounded in your mind, will not warrant killing such person if the fear is unaccompanied by any overt act indicating such intention.
Compare:
“I thought he would shoot me.”
with
“He was holding a gun in his right arm, pointing it at me, and I thought he was going to shoot me.”
A Virginia Jury Will Decide If Your Use of Force in Self Defense Was Reasonable
A Virginia jury will judge whether your use of force was proportional and reasonable, or excessive and unreasonable. Whether the danger was reasonably apparent to you is judged from your viewpoint at the time of the incident, but by a jury. This commonly results in judgment by means of Monday morning quaterback.
The jury may also find that you were “at fault” for the conflict with the alleged assailant and contributed to the conflict in such a way as to be responsible for it. Virginia also has a strange requirement where you must announce a “desire for peace” before using deadly force if you had some part in bringing about the initial fight.
This is why self-defense is tricky in Virginia – it will be up to the jury to decide if you met all of the requirements if you invoke this defense. You won’t really know until after you are tried.
A model jury instruction for self-defense reads as follows
If you believe that the defendant was without fault in provoking or bringing on the difficulty, and you further believe that: (1) he reasonably feared, under the circumstances as they appeared to him, that he was in imminent danger of being killed or that he was in imminent danger of great bodily harm; and, (2) he used no more force, under the circumstances as they appeared to him, than was reasonably necessary to protect himself from the perceived harm, then the killing was in self-defense, and you shall find the defendant not guilty.
Self-defense in Virginia is a Defense to Murder
The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of the defendant’s own misconduct. Accordingly, 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 a 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. What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his actions, is the test and not what reasonably appeared to him, provided it would so appear to some other reasonable person under similar circumstances.
The court instructs the jury that where a killing is proved by the use of a deadly weapon, and the accused relies upon the plea of self-defense, the burden of proving such defense rests upon the accused; the burden resting upon an accused relying upon the right of self defense is to establish such defense, not beyond a reasonable doubt, nor even by the greater weight of the evidence, but only to the extent of raising in the minds of the jury a reasonable doubt as to whether or not he acted in the lawful exercise of such right. And, in determining whether or not such defense has been established, the jury should consider all of the evidence and circumstances in the case, that for the Commonwealth as well as that for the accused.
The Virginia jury instruction for self-defense in a homicide case read as follows:
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.
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.
Click to read more about Murder and Manslaughter
The Right to Arm Yourself In The Presence of Danger
Another’s threat to use deadly force by brandishing a deadly weapon has long been considered an assault.
“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.
Virginia law allows you to arm yourself with a deadly weapon when you believe that someone intends to kill or cause you serious harm. (Meaning you can brandish your firearm without penalty under these circumstances.)
Virginia has a jury instruction that advises the jurors as follows:
“A person who reasonably believes that another intends to attack him for the purpose of killing him or doing him serious bodily harm has a right to arm himself for his own necessary self-protection. In such a case, no inference of malice can be drawn from the fact that he armed himself.”
This instruction can be given only when the evidence shows that the accused armed himself with planning and deliberation for the purpose of being able to defend himself from a future attack. It cannot be given when the evidence shows that the accused, in fending off a sudden attack, disarmed his assailant and killed the assailant with the assailant’s own weapon.
Virginia’s Castle Doctrine: The Right to Kill to Protect the Home
Virginia recognizes the common law castle doctrine. A person’s right to defend himself in his own home dates back to the classic American freedom reasoning:
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.
Hence, a homeowner may always use force upon the reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the homeowner at the time she or he used force. In the context of a self-defense plea, the danger must have been imminent, which means it must have appeared to the homeowner as an immediate and real threat to safety.
Use of Force to Defend Your Property
The Virginia higher courts have ruled consistently that you have the right to defend your property through the use of reasonable force, but you “cannot, except in extreme cases, endanger human life or do great bodily harm.” Our courts rely on an old case form 1842 where it was stated:
“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.”
Interview with Marina Medvin on Reason.com
Virginia Man Shoots an Active Robber in Store, Is Arrested Himself
The store owner thought his employee acted in reasonable defense of property and self. The police disagreed.
(Arlington Smoke Shop website)
An employee temporarily sleeping in Arlington Smoke Shop in Arlington, Virginia, was arrested early Sunday morning on three charges related to him firing a weapon—one that his boss had supplied to him—at burglars who had broken into the store. He ended up wounding one of the three burglars—a juvenile.
As Arlington Now reports, “Police say a group of three suspects broke into [the] store…and began stealing cash and merchandise.” According to police reports, 33-year-old Hamzeh Abushariah then “opened the door to the sales floor and discharged the weapon, striking one juvenile subject. The employee retreated to the back room but reentered the sales floor and discharged his weapon again as the subjects were attempting to flee the business.”
The other two burglars escaped on foot, and Abushariah was arrested and charged with malicious wounding, reckless handling of a firearm, and violation of a protective order, as the shooter was, according to police, under a previous order to not legally possess a firearm. Conviction on all three charges could lead to him spending up to 25 years in prison.
Interest in armed self-defense is demonstrably spiking, likely due to fears of criminal unrest in a country where up to one-third of the population suddenly has no income because of COVID-19 economic shutdowns. In such times especially, the notion that using a weapon to defend your business from robbers makes you the criminal unsettles the owner of the smoke shop.
Jowan Zuber, the owner of the store, took to Tucker Carlson Tonight last night to decry the police’s actions. “The neighbor upstairs said when they broke the window it sounded like a car smashing into the store. The employee said it sounded like a shotgun,” he said to Carlson. “It’s very sad for America today as American citizens practice their Second Amendment to protect the store and their lives….Do you know what the [responding] police officer told [Abushariah]? ‘Why didn’t you run out the back door?'”
According to Zuber, he was not able to post the $25,000 bond for his employee, as it was successfully “appealed by the prosecutor.” It’s always dangerous to be in jail or prison, for whatever reason, and especially so in the age of COVID-19, something that prosecutors might want to consider more soberly.
The Democratic commonwealth’s attorney for the county, Parisa Dehghani-Tafti, has previously been a promoter of maximum transparency in policing but so far has only issued a gnomic statement insisting that the police know things they can’t tell us yet that more clearly justify the arrest.
She told local news station WJLA ABC7:
“I cannot ethically discuss an ongoing investigation because doing so would not only risk compromising our work but also unfairly impede on the rights of the accused and interfere with the investigation. Suffice it to say, there is evidence we are not at liberty to share that support the charges, the decision was not made lightly, and we ask the public not to rush to judgment on what is very much a live investigation.”
Attorney Marina Medvin of Alexandria, a specialist in self-defense law, says in a phone interview today that she doesn’t know enough about the specific facts to know how it will likely turn out. Virginia law depends, she points out, on very fact-specific balancing questions about “reasonableness” of force used and whether the danger the user of a weapon in self-defense faced is “extreme” or if his actions prevented “great bodily harm.” It would be a mistake to try to predict a cut-and-dried outcome with the facts the police have released, she says.
Regardless, a 2000 Virginia Supreme Court decision in Virginia v. Alexander that Medvin pointed out is likely bad news for Abushariah’s defense, as it concludes “a deadly weapon may not be brandished solely in defense of personal property” in Virginia law.
Whether Abushariah can successfully convince a jury his life was reasonably threatened is uncertain, though perhaps prosecutorial discretion should go to a citizen innocently defending his person and property from robbers. Tens of millions of Americans who own guns for the defense of their lives and property may be wondering the same thing.
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Defense of Another Person
Finally we get to defending a third person, whether or not this person is a family member. You first need to understand all of the ramifications above. In Virginia, whether the person you defended is a daughter or a stranger, that person had a right to life and you had the right to defend his or her life. (This doesn’t hold true for all states – many states only allow defense of a third person when that person is a family member.)
Legally, the right to defend another is “commensurate with self-defense” – you are put into the third person’s shoes and are judged from their perspective – did the person who you defended have a right to use force of that magnitude against the assailant? Additionally, the third person cannot have appeared to have been at fault for the conflict from your perspective in order for you to invoke this defense.
“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.”
While it is the burden of the government to prove beyond a reasonable doubt that you committed a crime, it is your burden to prove that you had to hurt another person in defense of your self, or another person. This means that you will need to admit evidence or witness testimony at your trial to establish your defense.
A jury’s instruction would read something like this:
“If you believe that the defendant was without fault in provoking or bringing on the fight and if you further believe that the defendant reasonably inferred under the circumstances as they appeared to him that he was in danger of being killed or that he was in danger of great bodily harm, then the wounding was self-defense and you shall find the defendant not guilty.”
“If you believe that the defendant was injecting himself into a fight to assist [third person’s name][/third], who was in a fight with [assailant’s name][/assailant’s] because he reasonably believed that [third person’s name][/third] was in danger of great bodily harm, then the wounding was in defense of another.”
Local Alexandria, Fairfax & Arlington Firearm, Self-Defense and Defense of Property Laws
City of Alexandria: Sec. 13-2-3 – Discharge of firearms.
Any person who willfully discharges or causes to be discharged any firearm in the city shall be guilty of a class 1 misdemeanor; provided that this section shall not apply to any law enforcement officer in the performance of his official duties, or to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property or is otherwise specifically authorized by law.
City of Fairfax: Sec. 54-172. – Discharge of firearms.
It shall be unlawful for any person to fire or discharge any gun, pistol, or other firearm within the city, except:
(1) By special permit issued by the city manager containing reasonable conditions or restrictions, upon written application showing good cause for the requested firing or discharge, and limited to guns, pistols, and other firearms loaded with a blank cartridge, or other ammunition, not resulting in the expulsion of a projectile;
(2) On a shooting gallery or range authorized by the city;
(3) By any law enforcement officer in discharging his duties; or
(4) For the lawful protection of person or property; or
(5) As otherwise permitted by applicable law.
Arlington County: § 17-5. Firearms, Missiles, Etc.
A. It shall be unlawful for any person to discharge or shoot off a firearm in the County.
B. It shall be unlawful for any person to discharge or shoot or throw any dangerous missiles by mechanical, explosive, air-or gas-propelled means, or similar method or device onto or across any public sidewalk, path, or roadway, at any public structure or building, or at or onto the property of another.
C. It shall be unlawful for any person to shoot a compound bow, crossbow, longbow, or recurve bow at or upon the property of another without permission. It shall be unlawful to discharge a projectile from any of the aforementioned bows within one hundred (100) yards of any public road, public building or structure, private residence or structure, or property of another. Any violation of subsection A, B, or C shall constitute a Class 2 misdemeanor.
D. Nothing in this section shall be construed to prohibit the use of firearms or other instruments or missiles or compound bows, crossbows, longbows, or recurve bows in lawful self defense or in the lawful defense of property, or to prohibit the use of firearms or other missiles or compound bows, crossbows, longbows, or recurve bows in supervised sport, recreation, or training conducted on safety-inspected and approved ranges and courses, provided the same is not contrary to existing law.
Fairfax County: 6-1-2. Hunting or discharge of firearms in certain places prohibited; exceptions.
(a) It shall be unlawful for any person to shoot any firearm in any areas of the County that are so heavily populated as to make such conduct dangerous to the inhabitants thereof, which areas are designated in Appendix J to the Fairfax County Code. Firearms may lawfully be discharged in those areas that are exempted in Appendix J to the Fairfax County Code so long as the firearms are discharged on a Parcel of Land that is posted with signs giving reasonable notice that firearms are in use on that Parcel of Land and that no trespassing is allowed. Such signs shall be placed where they can reasonably be seen. However, if firearms are in use on only a portion of any Parcel of Land which meets the acreage and other requirements of the term “Parcel of Land,” as defined by Section 6-1-1, then only that portion of that Parcel of Land on which firearms are used shall be posted with signs.
(b) It shall be unlawful for any person to hunt with a firearm any bird or game animal on or within 100 yards from any primary or secondary highway. A violation of this Subsection shall be punishable as a Class 3 misdemeanor.
(c) It shall be unlawful for any person to shoot or hunt with a firearm on any public school ground or any public park or on any area within 100 yards of any public school ground or public park. It shall be unlawful for any person who is hunting with a loaded firearm to traverse any public school ground or public park or to be within 100 yards from any such school ground or park. A violation of this Subsection shall be punishable as a Class 4 misdemeanor. This Subsection shall not prohibit either (i) the lawful possession of a firearm when such firearm is carried for purposes of personal safety or (ii) the lawful possession of a firearm on a public highway within 100 yards of any public school ground or public park. Nothing in this Subsection shall apply to: (i) recreational shooting on gun ranges at any public school operated by or with the approval of that school; (ii) recreational shooting on gun ranges at any public park operated by or with the approval of the owner of the park; (iii) shooting of a starting pistol at an athletic event on any public school grounds or public park and which is conducted with the approval granted by the owner of that school or park property; or (iv) lands within a national or state park or forest, or wildlife management area.
(d) It shall be unlawful for any person to hunt with a shotgun loaded with slugs. A violation of this Subsection shall be punishable as a Class 3 misdemeanor.
(e) Except for those persons who are on a Parcel of Land that is exempted in Appendix J and who hunt with shotguns loaded with multiple ball shot, it shall be unlawful for any person to hunt with a firearm which has a barrel caliber larger than a nominal 0.224 inches or to hunt with a firearm and ammunition combination having a muzzle energy greater than a .22 caliber rimfire cartridge. A violation of this Subsection shall be punishable as a Class 3 misdemeanor.
(f) It shall be unlawful for any person to discharge any firearm from or across any highway, sidewalk or any public land except on a properly constructed target range.
(g) Notwithstanding the provisions of Subsections (a) through (f) of this Section, the following acts shall not be violations of this Section:
(4) Shooting or discharge of any firearm by any law enforcement officer acting in the performance of the duties of a law enforcement agency. For the purposes of this Section the term “law enforcement officer” includes any person defined as a law enforcement officer pursuant to Virginia Code § 9.1-101 and any animal control officer acting in the performance of his or her duty.
(5) Discharge of any firearm in an entirely indoor target range, provided that adequate provisions are made to retain within the structure all projectiles discharged.
(6) Discharge of any firearm for the purpose of protecting any person from death or great bodily harm.
(7) Discharge of any firearm or starting pistol loaded with a blank cartridge, or other ammunition, not resulting in the expulsion of a projectile or projectiles.
(8) Discharge of any firearm (i) pursuant to a permit issued in accordance with Virginia Code § 29.1-529, if the discharge is on land that contains at least five acres and is zoned for agricultural use; or (ii) pursuant to authorization issued in accordance with 4 VAC 15-40-240 by the Director of the Department of Game and Inland Fisheries.
(9) Shooting or discharge of a firearm by any representative of the Virginia Department of Game and Inland Fisheries in the performance of duty for scientific collection or wildlife management purposes.
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POLICE OFFICER USE OF FORCE
Police officers in Virginia cannot use excessive force to apprehend a subject, but they may use a reasonable mount of “effort” required in a given incident “to compel compliance by an unwilling subject,” according to the International Association of Police Chiefs. In reality, this means that as a situation escalates, an officer makes split second decisions as to how to control the situation, respond to possible threats, and apprehend their subject.
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This article is written by award-winning use of force and self-defense attorney Marina Medvin. Ms. Medvin comes from a police-family and has represented police officers and military officers charged with Virginia use of force offenses. Ms. Medvin has also served as an advisor to the local Police Department on legal issues in the use of force in the performance of police duties.
We consider discounted legal fee rates to law enforcement officers charged with criminal offenses in the performance of their duties based on a case-by-case analysis.
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The first level of force is the mildest one – police officer presence in uniform or with a badge, in itself, is a way for the officer to exert a level of force and authority over citizens.
The second level of force is through verbal commands. Officers issue commands, such as “Let me see your identification and registration,” “stop,” or “don’t move.”
The third level of force is physical restraint and physical command over a subject. If the situation calls for it, officers can grab and hold the subject in order to restrain that individual. If this doesn’t work or is not an option, then officers may use punches and kicks to restrain an individual. These actions must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly.
The next level of force is when officers have a reasonable need to control the situation by using their tools or gadgets. Officers may use a baton or projectile to immobilize a combative person. Officers may use chemical sprays or projectiles such as pepper spray. And, officers may use tasters to immobilize an individual. Again, this type of force must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly. Officers cannot continue beating someone with their baton once the person is no longer resisting or no longer posing a threat.
The last level of force is deadly force. The U.S. Supreme Court’s decision in Tennessee v. Garner placed restrictions on police use of deadly force: “deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”Thus, a Virginia police officer is allowed to use deadly force if he can articulate that his life or the life of another was threatened. This is a type of self-defense, or defense of another situation. It is judged from the perspective of the officer at the time of the shooting.
Local Virginia News Story: Fairfax Police Department Retrains Officers to Avoid Use of Deadly Force
