House of Delegates Votes to Expand "Castle Doctrine"

Wednesday, February 17, 2010

Yesterday, the Virginia House of Delegates voted to expand the so-called "castle doctrine," which basically allows you to use physical force against an intruder in your home. This legislation, which passed 75-24, will "the use of physical force, including deadly force, against an intruder in his dwelling who has committed an overt act against him, without civil liability." I was curious what this was all about, so I asked around. Here's what I found.

One delegate, who we'll just say is an expert in Virginia law, explained to me that "The current law is not 'the castle doctrine,' but is the affirmative defense of self defense," with the defense depending on "the accused person's degree of fault." He continued:
This law would change Virginia's common law. It eliminates the requirement of proportionality and it keys one's right to self-defense upon someone "unlawfully" being upon someone's property. Given that "unlawfully" is not defined, it is a rather ambiguous standard and could arguably be a little as a simple trespass...

For example, it could apply to a husband or wife who is excluded from property pursuant to a simple pendente lite order (not a protective order which is more serious), or say a girlfriend/boyfriend who had just be orally banned from property by someone who is in control of the property. Your ability "to shoot" them is keyed upon (a) the person being in the property "unlawfully," (b) the assailant committing "an overt act towards the occupant or another person in the dwelling," and (c) the person being "a reasonable belief" that they or another person in the dwelling is "in imminent danger of bodily injury."

The other significant concern is that the the element of proportionality is removed. The standard is "imminent danger of bodily injury." I could inflict injury on someone with my hands. This says someone can shoot who is unarmed.

I know in rural areas where people are more isolated, I can understand why people might feel as if they need a different standard than say people in urban/suburban areas although I'm not sure I necessarily agree with taking proportionality out of the equation. From my point of view it was a significant expansion of the common law right of self-defense and had the potential to escalate domestic disputes or disputes between known persons well beyond what currently occurs.
Another delegate responded to me that "this bill gives immunity from civil or criminal prosecution" and that it is "ridiculously outrageous and nuts." Yet another delegate pointed out that he didn't "need any law to tell me I have the right to defend my family with deadly force if necessary," and that if such a situation ever occurred, he "would be perfectly comfortable justifying my actions through the justice system, so I don't believe the immunity granted by this proposed law is necessary."

All of which raises the question, why did 75 delegates vote for this? Even more so, what I'm particularly surprised at is that any urban/suburban Democrat voted "yea." One vote that jumped out at me more than any other was the "yea" by Del. David Bulova (D-Fairfax City), the only vote by a NOVA Democrat for this bill. I contacted Del. Bulova and he pointed out a few things.

1. That HB710 was an identical bill which passed in 2008, with the support of NOVA Democratic Delegates Caputo, Moran, Nichols, Poisson, Shannon, Sickles, and Vanderhye.

2. "I don't know if I agree that this was a radical expansion of common law...While unlawful entry is hard to define, I don't know that proportional response is any easier given that if someone really is breaking and entering and making an overt act, then it would be really tough to know the degree of danger you might be in (as the person is lunging at you, does he/she have a gun, knife, nothing at all) that would allow a "rational" judgement call. Police are put in that position all the time."

3. "The one area that I am concerned making sure that the overt act and a person's perception of bodily harm is reasonable...That is tough to legislate, and is something that a jury would need to really look at -- but the way that it is approached in the bill could probably be improved."

I agree, this bill "could probably be improved." A lot. Which is why I'm hoping it dies in the State Senate (or a completely different version is passed), as I agree with the critiques by the delegate cited above.