What is self defense in Virginia?
Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt. Smith v. Commonwealth, 435 S.E.2d 414, 416 (1993), citing McGhee v. Commonwealth, 219 Va. 560, 562 (1978).
When the act of self-defense results in a homicide, it may be either “justifiable” or “excusable.” Both result in an acquittal, but are slightly different. In short, justifiable homicide is when you are not at fault at all for what happened. Excusable homicide applies when you may be at fault, at least initially, in creating the conflict and then both retreat from the conflict, and make your desire for peace known before taking the action that results in the homicide.
However, the action taken must be reasonable in relation to the perceived threat. Deadly force is generally not a reasonable reaction to less than deadly threats. Mere words will generally not constitute a threat of violence justifying self defense; the words must be accompanied by some actual, overt action.
Self Defense applies when the Defendant reasonably believed himself to be at risk of death or serious injury. This is a subjective question, looked at from the viewpoint of the Defendant. While the fear must be reasonable, it does not necessarily have to be accurate. For instance, if the aggressor is pointing a realistic looking toy gun, or an unloaded real firearm, that may perceived reasonably as a deadly threat.
Virginia does not impose a “duty to retreat,” however if the Defendant was the initial aggressor, he must retreat and “abandon the fight” before he can assert a Self Defense.
Defense of Another
A criminal Defendant may also assert defense of a third person. However, the criminal Defendant is put, for liability purposes, directly “into the shoes” of the third party. So that, if the third party would not have had a right to self defense, then the Defendant does not have a right to have defended them even if the Defendant could reasonably believed so, based on all of the information available at the time. This can be problematic, for instance, for an individual who comes upon a fight, and intervenes, attacking the apparent aggressor.
Defense of Property
When property is involved, real or otherwise, reasonable defense may be used to protect the property or remove an intruder. However, when only property is threatened, deadly force is never reasonable.
Should You Hire An Attorney?
If you have acted in self defense, or defense of another, and expect to be or have already been contacted by the police, it is important that you reach out to an attorney as soon as possible. While these may be valid defenses to a charge, they will not prevent a charge or criminal case from developing. Contact our Criminal Defense Attorneys in Northern Virginia to learn how we can help defend you in your criminal case.