An interesting opinion illuminating Virginia doctrine on self defense:

[John_Wayne777]

I strongly encourage everyone who lives in Virginia or who carries a firearm in Virginia to read this appellate court opinion, as it contains a wealth of superb information about the doctrine of self defense within the commonwealth:

http://www.courts.state.va.us/opinions/opncavwp/0186091.pdf

Pay particular attention to the section covering justifiable self defense vs. excusable self defense and you'll understand why I have always strongly encouraged people to refrain from involving themselves in conflicts and to avoid using "fighting words" and the like when a cycle of stupid is in progress.

[variablebinary]

Interesting...


...just because somebody shoots at you doesn’t necessarily mean that you have a right to shoot back...


The rule may be briefly stated thus: If the accused is in no fault whatever, but in the discharge of a lawful act, he need not retreat, but may repel force by force, if need be, to the extent of slaying his adversary. This is justifiable homicide in self-defense. But if a sudden fight is brought on, without malice or intention, the accused, if in fault, must retreat as far as he safely can, but, having done so and in good faith abandoned the fight, may kill his adversary, if he cannot in any other way preserve his life or save himself from great bodily harm.


Courts in many other jurisdictions have recognized the wisdom inherent in the principle of “transferred intent self-defense.”

(adopting the “general rule . . . that if a person acting in necessary self-defense unintentionally injures or kills a third person, he is not guilty of homicide or assault and battery”); Brown v. State, 94 So. 874, 874 (Fla. 1922) (recognizing that “if the killing of the party intended to be killed would . . . have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, . . . is also excusable or justifiable”); accord Nelson v. State, 853 So.2d 563, 565 (Fla. Dist. Ct. App. 2003). See also People v. Conley, 713 N.E.2d 131, 136 (Ill. App. Ct. 1999) (noting, the “defendant’s intent to shoot his assailant in self-defense is transferred to the unintended victim”); State v. Arrellano, 736 S.W.2d 432, 434 (Mo. Ct. App. 1987) (finding that “[i]f the assault upon the bystander was committed in self-defense against an attack by the intended victim, self-defense furnishes a defense against a charge of assault upon the bystander”).

[dbrowne1]

The part about transferred intent is the most significant in my mind.

Also keep in mind that this is a Court of Appeals of Virginia (CAV) decision - that is the "intermediate" appellate court that has been spanked and overturned on defensive use of firearms case in recent years. Specifically, the CAV said that it was permissible to threaten the use of deadly force to protect property. The Supreme Court of Virginia reversed them on that.

In other words, this is an interesting discussion, but I wouldn't take this to the bank just yet.

[John_Wayne777]

I agree completely...until the Supremes in Va put out a ruling it isn't settled law...but there are some great citations in there and some great learning points for those who are unfamiliar with the justified vs. excused theories of self defense.

If you know of any other good citations or cases I would certainly welcome them. Often the legalities of self defense are never really discussed even though they really do matter a great deal.

[dbrowne1]

FOR THOSE READING FROM AFAR, BEAR IN MIND THAT THIS APPLIES ONLY IN VIRGINIA - IT MAY NOT APPLY ANYWHERE ELSE

This Hill case doesn't really get into the real meat of excusable v. justifiable.

Look at:

Yarborough v. Commonwealth, 217 Va. 971 (1977):

Killing in self-defense may be either justifiable or excusable homicide. "Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958); Dodson v. Commonwealth, 159 Va. 976, 167 S.E. 260 (1933). "Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm." 200 Va. at 96, 104 S.E.2d at 31. But bare fear that a person intends to inflict serious bodily injury on the accused, however well-grounded, unaccompanied by any overt act indicating such intention, will not warrant killing such person. Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955).

The Yarborough case was just cited and quoted for these principles in another, 2010 Supreme Court of Virginia case and is good law. In layman's terms, all any of this means is that if you put one drop into the bucket of the pissing match, you better break away and wave the white flag if possible before you resort to deadly force. If you are blameless, then you can stand your ground.

The transferred intent part (i.e., I intend to shoot Mongo in self-defense, but I miss a shot and hit Grandma across the street) is what is more interesting. This is a topic that is often discussed, on the internet and amongst more reliable concentrations of knowledge, without complete agreement. I'm watching this case to see if the Comm. appeals it and, if so, what happens, on that point.

[mmike87]

Is there anything new here? It was always my understanding in VA that there was no duty to retreat UNLESS you were somehow at fault in creating the incident. Then, and only then, you had to make an effort to retreat.

This is how I understood VA self defense doctrine ever since I started to carry years ago.

[dbrowne1]

Is there anything new here? It was always my understanding in VA that there was no duty to retreat UNLESS you were somehow at fault in creating the incident. Then, and only then, you had to make an effort to retreat.

This is how I understood VA self defense doctrine ever since I started to carry years ago.

You're right, that aspect is nothing new. What is new, at least to my knowledge, is that we now have an appellate court stating that the doctrine of transferred intent applies to justifiable shootings. It doesn't necessarily answer the civil liability aspect of accidentally shooting the wrong person while "intending" to shoot the "right" person, but it does address the criminal aspect.

Like I said, we'll see if this holds up in the long run.