Need some clarification.

[WayBeau]

So, following what appears to be some escalating vandalism of my property I started looking into the laws regarding use of deadly force in Virginia. I'm not some trigger happy fool who's just going to step outside and start blasting, but I'm also not afraid to air someone out if they're threatening my family or home. Now, before I go any further, I'm not going to shoot someone because they're throwing eggs at my house, but if they're trying to get in or they're looking to build a bon fire out of my house, that's another game all together.

So in my searches online, I ran across this http://www.courts.state.va.us/opinions/opncavwp/2136973.pdf. From what I've read, the case centered around the defendant brandishing a firearm during the course of his car being repossessed. While I don't think he had the right to pull a gun on the guy taking his car back and I wasn't there so I can't reasonably say who was right or wrong, it raised a question. Can I be arrested for brandishing a firearm if someone is trying to steal my stuff? Not repossessing property, but stealing stuff that's legally mine. What it seemed like to me from reading the case was that the court would rather me just let the perpetrator have my things rather than try to defend what's mine.

Anyone know anything about this or similar situations? I'm a bit confused.

Thanks.

 

[Bubbles]

From what I remember when I lived in VA, you may not use deadly force to protect property. The only exception is if you are shooting to stop someone from setting fire to an occupied building, as in that case the arsonist is endangering people's lives.

 

[WayBeau]

My question wasn't about the actual use of deadly force, but simply having a firearm visible. Like if I had a gun in my hand when confronting some punk kid who is trying to steal my stuff. In the case I linked to, the defendant was arrested for having a firearm visible during the incident. He didn't shoot anyone. I just want to know if I'm going to get arrested for coming out of my backdoor with a shotgun when someone is trying to steal my things.

 

[Kleanbore]

Arrested? Yes. Charged and convicted? Yes. See this.

COMMONWEALTH v. ALEXANDER
COMMONWEALTH of Virginia v. Jon Douglas ALEXANDER.

Record No. 991786.

-- June 09, 2000

Present:  CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ., and WHITING, Senior Justice.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.Robert B. Armstrong for appellee.

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

......

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.

 

 

[WayBeau]

Hmmm. I guess I'll have to call the local authorities and ask them for some clarification. The Alexander case is a little sketchy since the property involved wasn't actually his own, it was being repossessed legally, and the exact details come down to a "he said, she said" type of argument. The cases sited by the justices are VERY outdated and I'm not going to shoot someone for trespassing. Though I might throw them a beating they'd not soon forget.

Or, perhaps I just throw on the trusty duty belt. The weapon is holstered and readily available should the offending party become a direct threat to my being.

 

[Frank Ettin]

Basically, brandishing a firearm is threatening lethal force. It is an assault insofar as it reasonably causes the person threatened to fear getting shot.

The law recognizes that under some circumstances such an assault can be justified. So it's a question of when such an assault is justified under the applicable legal principles.

In general, an assault that involves the threat of lethal force can be justified only when one would be justified in actually using lethal force, i. e., actually firing the gun. So one would generally be justified in pulling a gun in the face of a reasonably perceived, imminent physical attack likely to cause death or severe bodily injury. But since in most cases lethal force is not justified in defense of property, brandishing a firearm in a threatening manner would also not be justified in defense of property.

...I guess I'll have to call the local authorities and ask them for some clarification....

You'd be better off getting an opinion from a qualified attorney. It might cost a few bucks, but it would be money well spent.

Local LE just isn't the best place to go for a legal opinion. That's not what they do or what they trained to do. And the local DA isn't your lawyer and won't be around to help you sort things out if you act on his advice; he might be prosecuting you.

 

[WayBeau]

I wouldn't ask the police around here. In general they don't know their hind quarters from a hole in the ground.

Really, it won't ever come to me leaving the house with a firearm. I'm not going to leave my wife and kids unprotected with an unknown number of idiots trying to get in my house.

 

[jbr]

I stick by the rule - if i ain't going to use it - i ain't going to show it. If you confront someone and they in turn show a desire to harm you then you have a case of being justified.

 

[WayBeau]

I guess my confusion stemmed from the fact that this guy got arrested and convicted for "brandishing" a firearm during a situation in which he allegedly felt threatened.

 

[Matt 357]

I did a quick internet search for definitions of brandish. Not too much luck.

If I am holding a gun with muzzle pointed at the ground, am I brandishing? Does the defintion vary by state/county/city?

If someone is stealing or vandalizing my property, why would it be unreasonable to assume they could do me harm? If hear glass break, grab my gun, step outside my front door, find a kid looting my car in my driveway, can the kid have me arrested for brandishing? Even if the muzzle is pointed at the ground???

 

[WayBeau]

Matt,
That's kind of where I stand too. Doesn't make any sense to me.

 

[Uteridge]

Remember that it is not only what happened during an incident involving a weapon but what you say afterwards. If the police get a "Man with a Gun" call and they show up at your house and ask you questions and your response is that someone was trying to steal your lawn mower then the LEO and DA are going to make a judgment call on your freedom. If your response is that you heard a noise and thought someone was trying to break into your house and you grabbed a gun to protect your family then that is an entirely different situation from a legal standpoint. Don't elaborate too much, ask for a lawyer, and let him tell the story in a way that will keep you out of trouble.

Going outside your house with a weapon is a bad idea in most cases unless you live in a really rural setting. When I was growing up in Missouri I would grab a .45 and kill the raccoon that I heard in the trash can. I can't shoot the raccoon anymore in the city so I would have a hard time explaining my need to leave my house with a weapon for "self defense". The key word to keep in mind is defense; if you leave your house with a shotgun and go towards a possible confrontation then that is not a defensive gesture. You have gone on the offensive and you are at that point partly responsible for the outcome of the situation because it has not been pushed on you. (not legal advice just my opinion.)

 

[Kleanbore]

Posted by Waybeau: I guess my confusion stemmed from the fact that this guy got arrested and convicted for "brandishing" a firearm during a situation in which he allegedly felt threatened.

"Feeling threatened" does not justify a threat of deadly force by one person against another. If the actor had done nothing to initiate the confrontation or to provoke or escalate the situation; if the actor had done everything possible to de-escalate the situation and avoid violence; if the threat had constituted an imminent danger of death or great bodily harm; and if the actor had had no other way of avoiding death or great bodily harm, he would have been justified in presenting a weapon, and if it were still necessary, in the use of deadly force.

And that takes us to this, which is something to keep in mind:

Posted by Uteridge: Going outside your house with a weapon is a bad idea in most cases unless you live in a really rural setting. ... The key word to keep in mind is defense; if you leave your house with a shotgun and go towards a possible confrontation then that is not a defensive gesture. You have gone on the offensive and you are at that point partly responsible for the outcome of the situation because it has not been pushed on you.

 

[Frank Ettin]

...I guess my confusion stemmed from the fact that this guy got arrested and convicted for "brandishing" a firearm during a situation in which he allegedly felt threatened.

Here's the applicable Virginia statute on brandishing (§ 18.2-282.)

...A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.....

What makes it "brandishing" is holding the weapon "...in such manner as to reasonably induce fear in the mind of another...." Whether you are reasonably inducing fear could turn into a question for the jury. But you really can't complain if someone figures you are reasonably inducing fear since, as you've framed the issue, that's exactly why you're displaying the gun -- to make someone afraid enough to stop what he's doing and go away.

...I did a quick internet search for definitions of brandish. Not too much luck.

If I am holding a gun with muzzle pointed at the ground, am I brandishing? Does the defintion vary by state/county/city?...

The applicable definition of "brandishing" will vary from jurisdiction to jurisdiction, but the Virginia definition quoted above is typical. The question will be whether your display of the gun reasonable induced fear, and a jury could conclude that holding a gun, even if pointed at the ground, could reasonably induce fear.

...If someone is stealing or vandalizing my property, why would it be unreasonable to assume they could do me harm?...

Because he hasn't done anything to directly threaten you.

In general, one may use lethal force only when one reasonably concludes that it is necessary to prevent otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to show a reasonable belief that a potentially lethal attack is imminent, one must generally be able to articulate the reasons he reasonably concluded that the alleged assailant --

(1) Had Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

(2) Had Opportunity, i. e., the assailant was capable of immediately deploying such force; and

(3) Put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he has the intent to kill or cripple.

How would you articulate how someone engaged in simple theft of vandalism satisfies those criteria?

 

[WayBeau]

Like I said earlier, I'm not going to leave my wife and kids to fend for themselves, so I won't be going outside unless absolutely necessary for safety's sake.

 

[Uteridge]

Lethal Force=Last Resort

 

[hermannr]

First, I would ask the state AG. I am sure there is a FAQ on his/her web site. Second, the law says "public place". I woudl assume it is reasonable to consider inside your house is NOT "a PUBLIC place", so that would be one question for the AG. "If someone breaks into my house..."

In a public place, even if you are carrying open (if that is legal in VA), I would not even put my hand on my holster. That in itself can "cause fear" and be considered "brandishing" in some places.

Ask the state AG for a written opinion.

 

[Frank Ettin]

...Ask the state AG for a written opinion.

AFAIK, a state AG will not provide a written opinion for a private citizen, or will do so only at his discretion. He is the lawyer for the State. He is not your lawyer. At least in most States an AG will provide an opinion only at the request of a legislator or another governmental official.

An advisory opinion of a governmental agency, when such are available (as they are from the IRS), will be extremely fact specific. When in the course of my career I had occasion to seek an advisory opinion on behalf of a client I would need to specify in detail the facts to be assumed for the purposes of the opinion. And then the opinion was rendered only as to the application of the law to those exact facts.

 

[Smoovbiscuit]

I wouldn't brandish a firearm at someone unless they were masked in my home or appeared to be have a weapon.

Pointing a gun at someone stealing your stuff could put you at further risk, if you point a gun at a gang member trying to steal your stuff you can bet there will be a hit on you. Or they might tell their buddies to come back and try to steal your guns. Don't expect to put fear in someone who may be more heavily armed than you, and or on drugs

What I would do if I saw vandals would be have my gun concealed, but ready in case the vandals became a threat.

 

[ProShooter]

WayBeau - if you are interested, we offer a class that covers this topic.

http://proactiveshooters.com/general-course-information-2/intro-to-concealed-carry-in-va/

 

[WayBeau]

ProShooter, thanks for the information. I have bookmarked the site and will definitely be looking into your courses in the future (my current schedule is jammed at the moment).

 

[rule303]

How would this ever come to law enforcements attention? Is the vandal going to call 911 and say "hey I was just trying to rob this guys house, and the crazy S.O.B pulled a gun on me"? I would rather have the gun with me when confronting an unknown intruder (not pointing in their direction unless it comes down to serious self defense) and face possible brandishing charges, than not have it if the situation gets ugly.

 

[mikau]

I live in SC... and we just went through this twice in the last year. First, a guy that works next to me every day heard glass break outside his house around 2am. He grabbed his 1911 and ran outside naked. A man was loading the subs from my friends car into the back of his jeep. He unloaded his 1911 into the back of the guys jeep as he took off. He called the police and made a report. The next day the police asked him to identify a man who had been shot in the head and was currently at the hospital. The theif is currently awaiting trial... but my buddy was in a holding cell for a day, before the police dropped his charges. Why? I dont know... doesnt make sense. The police chief was on the news saying that charging him would have been supporting thieves and enabling them. He said that this should serve as an example to others.
Next, I was riding around in the country with a hot date around 3am. On a tight turn a man ran out in front of my truck... I slammed on the breaks. He pulled a gun out of his jacket, and pointed it at me through the windshield. All my windows were down and the lady started screaming. I grabbed my xd9 from the glovebox... his hand touched my door handle as I planted 3 rounds in his chest (which is a really hard thing to do at that angle). I peeled out, and called the police when I was about 5 miles down the road and stopped. HE SURVIVED!!! The cops found him in the ditch. He said I robbed him and he didnt have a gun. The cops found his gun in the woods... I never heard another word of it after that night.
Two things learned...
1st- shooting someone ruins a date
2nd- I need to keep a .45 in the truck

 

[Shadow 7D]

I would suggest, like many others have basicly said, save the gun for when you HAVE to use it, get game cams or a decent video system, there are programs out there that can crack (reprogram) 20-30 digital camera or/and web cams to function as security cameras and record to a SD card (I think internally and through your computer)

Or just buy a system, or for remote locations, a trail cam. Then go to the prosecutor and swear out a warrant.

In this case, getting pictures might just be worth it, and if you do want to go outside, having your wife cover you with a rifle she is good with, as you go out with a camera (and say a open holstered gun, isn't brandishing if it's in leather) Get the pics, but realize it's a form of escalation, as they know what you are going to do with them.

So, talking to the local prosecutor and or sheriff to find out what you need to get these idiots prosecuted (and taken to civil court for damages - is mommy going to be more pissed at Jr. for getting locked up, or for having to sell the house to pay you and your attorney)

 

[Kleanbore]

Posted by rule303: How would this ever come to law enforcements attention?

Very simple--the person assaulted would simply report you. His being able to describe the gun would work against you.

See this for a true account of a man who point a gun at someone on his own property--his word against hers--and was convicted and jailed. He appealed all the way to the state supreme court and lost. [URL="http://www.fosters.com/apps/pbcs.dll/article?AID=/20110203/GJNEWS02/702039687/0/CITNEWS"]He has been released, but he remains a convicted felon.[/URL]

Is the vandal going to call 911 and say "hey I was just trying to rob this guys house, and the crazy S.O.B pulled a gun on me"?

Of course not.

I would rather have the gun with me when confronting an unknown intruder (not pointing in their direction unless it comes down to serious self defense) and face possible brandishing charges, than not have it if the situation gets ugly.

If you have approached someone while holding a gun and it has "come down to serious self defense", you are in a whole lot of trouble.

Stay indoors.