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When Can Deadly Force Be Used In Virginia?

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In each of the 50 United States, a person has the right to defend one’s self or another from unlawful attack. This includes the right to stop a deadly attack by responding in kind with deadly force. At times, circumstances under which deadly force are used might be somewhat murky with respect to justifiability, and can also be difficult to prove after the fact. Although states have varying rules with regard to the manner in which one defends life or limb, certain commonalities exist. In general, if one is in reasonable fear of suffering imminent death or great bodily harm from an unlawful attack by another, that person is justified in the use deadly force against the attacker. Two portions of this doctrine repeatedly arise as points of contention.

Imminence of Harm

Reasonable fear of suffering death or great bodily harm alone, does not suffice in justifying the use of deadly force in self-defense. A necessary element is the immediacy of the harm. To illustrate, consider circumstances in which a known gang member with an established history of homicide threatens a person who is engaged in no illegal activity. A dispute arises, in which the gang member, known by the victim to be a prolific assassin, verbally and explicitly threatens to kill the victim by walking to his car, which is less than 75 feet away, retrieving his gun, and shooting the victim. The victim of the threat, recognizing the veracity of the threat by virtue of knowledge of the history of the gang member, takes preventive measures to save his life and stops the attack from happening by shooting and killing the one who threatened him. Here, the victim of the threat will not be justified in the use of deadly force to stop an attack because the threat lacked immediacy. In other words, the threat of suffering a gunshot, however real, was not about to occur right then and there, but rather in the time it would take for the offender to walk to the car and retrieve the gun. This delay lacks the imminence required to use deadly force.

Reasonable Fear

It is not necessary that one who acts in self-defense is found to be in actual jeopardy of suffering death or great bodily harm. This has opened the door to great controversy, as is reflected by current discussion of “Stand your Ground” laws. The following fact pattern might clarify the standard of reasonableness that is necessary in possessing a “reasonable fear” in conjunction with justifiable use of deadly force to stop a deadly attack.

An offender who presents a silver colored revolver and presses it against her rib cage accosts a victim who is engaged in no illegal activity. The attacker verbally threatens to kill the victim and demands her wallet. The victim is lawfully carrying a concealed firearm of her own and seizes an opportunity to stop the attack by drawing her firearm and shooting the attacker, thereby causing the death of the attacker. Subsequent investigation by police reveals that the attacker’s handgun was unloaded, and therefore incapable of producing death or great bodily harm to the victim by virtue of the way it was used. In this case, the victim was under no threat of being killed by the handgun.

Despite this lack of jeopardy, the law recognizes the “reasonable fear” experienced by the victim of the attack as a justifiable reason to use deadly force in stopping the perceived deadly attack. Through no fault of her own, courts will recognize that she reasonably was induced to believe that she was under the threat of immediate gunshot, and does not fault her for the bad planning of the felonious attacker. In cases in which deadly force is used, the level of fear and belief experience by the victim must rise to the same certainty as the one in the above scenario in order to justify use of deadly force. If the alleged fear experienced by one using deadly force in self-defense lacks the same reasonable quality, it will not rise to the level at which it will be recognized as a valid defense to criminal charges related to homicide.

Contact A Legal Representative

If you or a loved one has been involved in an attack involving self-defense, whether accused offender or victim, learn your rights. Contact the attorneys at the Kamerow Law Firm, PLLC to learn how we can represent you in your case by calling 703-370-8088.