It looks like the Catsle Doctrine that may become law in Virginia this year includes language that is not exactly positive. Here is the bill:
[i]§ 18.2-91.1. 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 the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and 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.[/i]
The language that should never have been included is in bold. What this doctrine requires that the indtruder commit an “overt act”. So basically even if someone breaks into your home at 2 in the morning, and even though they might be carrying a crowbar or an axe in the process, unless they make an obvious motion to hurt one of the lawful occupants of the dwelling, the Castle Doctrine cannot be applied.
This is bad because what an “overt act” is can be very subjective. Is a furtive movement going to be enough of an overt act? Or do you have to wait until such an act is so obvious that any further hesitation may be too late? I can’t believe that this bil made it in its current form without someone questioning this language.
I read that the other day and thought the same thing. Then I figured it was just a legal term. I mean you sort of need that in there. I think the wording just clarifies that you can shoot bad guys but not your neighbor looking for her lost cat.
At any rate, if they are dead they will have a hard time saying they just dropped by for tea.
I think it’s safe to say that being in your house at 3am is an overt act. I can’t see anyone stopping by to bring you cookies in the middle of the night.
Someone can break in to your house, but you still need to be able to articulate the fear of death or injury. I think a good lawyer can turn the breaking & entering into the overt act, especially if the suspect is armed. I would feel in fear for my family and myself if someone broke in. Just look at all the news stories of home invasions that end in tragedy. While this law isn’t exactly “Castle Doctrine”, its a good step to help protect homeowners from families that want to sue the victim because their kid “Would never do no harm to anybody. He was just misunderstood. They shoulda shot a warning shot.” Blah blah…
That’s the problem. Until a legal definition of an “overt act” it seems that the Castle Doctrine more restrictive than what is currently in place (Common Law for self-defense).
Unfortunately, this may not be established until after the first Case Law is established. Which means some poor sap will have to be the guinea pig (which means that they can end up on the shitty end of that legal stick).
Unless the dead man happens to have an undetected buddy (+2 rule?) who saw the whole thing from outside. Or maybe that anti-gun neighbor who you just had an argument with for allowing their dog to crap on your lawn also happen to witness the whole thing.
This is a very slippery slope that can get you into more trouble. I am hoping that State Attorney General will clarify what an “overt act” is before the law goes into effect.
(B)(1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
(2)(a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.
(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.
(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.
(2) “Dwelling” means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a building or conveyance with a roof over it includes, but is not limited to, a tent.
(3) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.
(4) “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport people or property. (God help whomever tries to knock me off my bicycle)
