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Friday, February 10, 2012

"Do You Want to Eat Breakfast with the Devil?"

That was what an 82 year-old constituent of Delegate Anne B. Crockett-Stark, (R-Wythe) told an intruder when she caught him entering her home through a window he had broken.  Delegart Crockett-Stark shared the story yesterday as the House of Delegates was debating final passage of House Bill 48, a bill to codify the Castle Doctrine.  The entire story goes like this, as relayed in the Richmond Times Dispatch report on passage of the bill:

The 82-year-old female lived in the in the back of a funeral parlor. She heard the break-in at 2 a.m and after grabbing her pistol, the woman, who happens to be a sharpshooter, according to Crockett-Stark, caught the male burglar crawling in through a window he had broken.

"She grabs him up, she puts the pistol under his chin, (and) she said, 'Do you want to eat breakfast with the devil?'" Crockett-Stark said.
As the perp fled, the woman fired a shot into the air to scare him.  The man later filed a warrent against her and took her to coart for shooting at him, Crockett Stark continued.

"And he won!" Crockett-Stark said. "We do need this bill."
Shooting into the air is not the smartest thing to do, especially after he was fleeing, but he is the one who committed a crime, yet he gets to sue her.

Both the House and Senate have passed versions of the Castle Doctrine.

4 comments:

JC77 said...

Dear Sir or Madam,

I received an email from a pro-gun group that I am not a member of; National Association For Gun Rights, who say this Castle Doctrine is extremely weak and even lessens our previous defensive abilities.

In their words: "The way they are written, an assailant may break into your home and you would be powerless to stop him.

Only when he commits a second “overt act” will you be allowed to defend yourself or your family -- that is, if you “reasonably believe” you are in danger."

and

"This bill creates NO presumption that the intruder’s presence in your home at two in the morning causes “reasonable fear.” It leaves the burden of proof on you!

This bill has NO immunity from civil or criminal prosecution -- meaning you will have to pay thousands of dollars in legal fees when you are hauled in to court for defending your family. In fact, it was even amended to exclude this language.

This bill awards NO reimbursement for your criminal or civil legal fees.

This bill provides NO protections outside your home -- including your front porch, place of employment, your car, or anywhere else you legally have a right to be.

Worst of all -- because the legislature will have omitted these important protections by intent -- all existing standards of judicial precedent that cover them will be shredded."

My question to you is, is this true? The NAGR actually goes as far as to suggest we write our representatives to kill these bills and have them done right next year! I would really like to hear your opinion as this was shocking to me and I'm not sure what to believe now.

VSSA Legislative Chairman said...

In short, no, NAGR's post is not correct. Here is the text of the substitute to HB 48 reported by Senate Courts:

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-223.3 as follows:

§ 8.01-223.3. Use of physical force, including deadly force, against an intruder; justified self-defense.

Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when (i) the other person has unlawfully entered the dwelling and has committed an overt act toward the occupant or another person in the dwelling and (ii) the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.

Any occupant of a dwelling using physical force, including deadly physical force as provided in this section, shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.

This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law.

(End quote)

You will note that the code section the bill addresses is the civil code. Additionally, the text makes it clear that nothing in the section limits the defense or immunity already existing in common law - the very common law that those "pro-rights' groups who are opposing this year's Castle Doctrine legislation claim gives more protection than the Castle Bills.

The Senate will likely pass HB 48, it will then go back to the House where the House may reject the amendments. It that happens, the Senate will likely insist on it's amendments and the bill will likely go to conference. At that point, anything could happen. Please keep following this blog for updates.

JC77 said...

First, the House-passed version would make the law WORSE than it currently is, under “common law.”

Second, it is our opinion that, after adoption of the Obenshain amendment, the Senate version is probably at least as good as the status quo.

Third, the bottom line is that, unless we can be assured of a final product at least as good as the Senate bill (with the Obenshain amendment), the bill’s supporters, although well-intentioned, should probably take the issue back to the drawing board.

Here are the specifics:

Currently, as a result of Virginia “common law,” you can protect your home, using “deadly force,” if you reasonably believe you or someone in your house is in danger of death or bodily injury.

House Bill 48 and its counterparts are intended to codify this “common law.” Unfortunately, there are three problems with the House versions of the proposed legislation.

First, all of the House bills add an “illegal entry” requirement prior to using deadly force. This could pose problems if a person who initially entered your home lawfully subsequently turns violent. In this sense, the House proposals would be less favorable to gun owners than if the legislature did nothing.

Second, the House versions would add a requirement -- non-existent in common law -- of an “overt act” toward you or a member of your household before you could use deadly force.

Here’s where it becomes a little tricky, because bare unsubstantiated fear is not enough to justify deadly force. However, although lawyers disagree, we believe the better view is that “common law” regarding deadly force does not require the same sort of “overt act” in a residence required for a conspiracy or prosecution for attempt to commit a crime. And we believe its explicit introduction in statute, as an addition to the forcible entry requirement, would substantially limit current gun owners’ rights.

What would be necessary for a court to find an “overt act”? We don’t know. But there is at least a possibility that a home invader, standing in your parlor with a gun, would not have crossed that threshold.

And most of us in the Second Amendment community believe that you should have a right to use deadly force under that circumstance.

Third, the bills keep the “common law” requirement of “reasonable belief” that you or someone in your household is in danger. But this has been precisely the problem in common law which has allowed many law-abiding gun owners to be sent away to prison for defending themselves and their families in other states.

Specifically, armed home invaders (again, in other states) have sued homeowners for shooting them -- even though they were armed -- and police have prosecuted those cases, based on the assertion that the home invader was “leaving,” rather than “entering.”

And courts have found, in many of those cases, that it was not “reasonable” to fear an armed criminal who was going, rather than coming. As a result, many states have considered replacing the “reasonable” test with a more lenient “good faith” test.

This is something the Virginia legislature needs to think about -- but has, to our knowledge, not considered to this point.

So the bottom line: The Senate bill, with the Obenshain amendment, is the absolute bottom line. Any bill without Obenshain should be opposed by gun owners. And it may be that the legislature needs to put the “castle doctrine” bills on hold so that it can consider issues which have really gone unaddressed to this point.

I hope this helps."

After reading this (the GOA message), I am confused and, frankly, disappointed. Why are other gun owners against this bill, one that I think is very important to have passed...as long as it is the TRUE Castle Doctrine and not what GOA claims.

Sir or Madam, I sincerely thank you for your time and patience...again I am only trying to make an informed decision that will further protect our 2nd Amendment Rights.

Sincerely,

James

VSSA Legislative Chairman said...

VSSA cannot speak to what the motives of other gun groups. Changes were made to the introduced bills as they worked their way through the legislative process. We are working to get a good bill and the legislative process is not complete. House Bill 48 will likely be on the floor tomorrow for a final Senate vote. It will then have to be taken up again by the House as will the Senate bill which was also amended by the House committee. Please keep watching this blog and sign up for our email alerts if you have not already done so in the event we need you to contact your legislator.