When people are confronted with criminal charges related to assault and battery, or in some very serious malicious wounding or murder cases, it is fairly common to feel as though they had no other choice and only reacted to save or protect themselves. While it is a generally accepted concept that a person has a right to protect themselves from harm, this is actually a complicated area of Virginia law. Under the right circumstances, self-defense can be used to justify certain actions that may normally be considered criminal, but it is important to keep in mind that raising a self-defense claim is by no means absolute.
If you’ve been charged with a crime such as assault, battery, malicious wounding, or murder, an experienced Virginia violent crimes defense lawyer can look at the available evidence and determine whether a self-defense strategy might be successful in your case.
Call (540) 343-9349 to schedule free consultation with Copenhaver, Ellett & Derrico.
When Is Self Defense a Legal Option?
According to Virginia law, self-defense is permissible when someone has threatened your safety or the safety of someone else. You may defend yourself, your property, or a third person if you believe that the force is necessary to protect yourself or someone else from imminent use of unlawful force. Merely being afraid that someone might inflict bodily harm based on verbal threats does not meet the standard of “imminent use of unlawful force.” There must be a clear act that puts you in immediate danger of physical harm.
Justified vs. Excusable Self-Defense
To raise a justified self-defense argument, you essentially need to show that you had no other options and are free from fault in an attack. For instance, if an argument in a bar escalates and you leave the bar to fight another person in the parking lot, self-defense will likely not be a viable defense. In this situation, the law prescribes that you had the opportunity to avoid the encounter and mutually agreed to the combat.
This concept of needing to escape is often referred to as a “duty to retreat,” which requires you to withdraw from a dangerous situation to the maximum amount possible. In the same bar fight scenario, if you did leave the bar to avoid a confrontation and the other person pins you against a wall and attacks, you would then be able to raise a self-defense-argument. In this situation, you exercised your duty to retreat by leaving, and could not feasibly escape any further harm because you were backed up against a wall.
Additionally, the amount of force you use must be necessary and proportional to the threat in question. So if someone tries to punch you, you cannot defend yourself by shooting them. Since self-defense is an affirmative defense, this means that instead of showing that you did not hurt the other person, you are admitting that you used force, but were justified in doing so. For example, if someone punches you and is about to hit you again, and you punch them and immediately try to escape, you could claim that your force was reasonable and proportional. However, if someone punches you and you strike them, get on top of them, and repeatedly strike them, the force you used will probably be considered excessive and unreasonable.
There are a few instances where the use of force is considered excusable even if you are not entirely free of blame or contributed to the situation. For instance, if you were the original attacker or provoked the encounter, but decided to withdraw, that action is considered to be over as long as you announce your desire for peace and retreat as far as possible. If the other person ignores your announcement and continues the engagement, this would be considered a new act and you may use proportional force to repel this second attack, only after totally abandoning and retreating from the original confrontation.
Deadly Force & “Standing My Ground”
A common term when discussing self- defense in Virginia is the “Stand Your Ground Law,” which states that a person does not necessarily have to retreat prior to using force, even deadly force, when confronted with an aggressor if It can be shown that you had no fault in causing or provoking the situation. Deadly force in Virginia is defined as force intended or likely to cause death or grievous bodily injury. In cases when an attacker has a deadly weapon and you believe that you are in imminent danger of being killed or grievously harmed, you would be justified in using deadly force to repel the attack. Essentially, if someone pulls out a gun during a simple disagreement and attempts to shoot you, you can use a deadly force to defend yourself. In this scenario, there is no requirement for you to retreat and try to avoid the situation before applying deadly force.
How a Skilled Criminal Defense Lawyer Can Present a Self-Defense Argument
Using a self-defense argument if you were involved in a situation that resulted in being charged with assault, malicious wounding, or murder charges can be quite complicated and relies heavily on several factors and levels of understanding that may be hard to prove. For these reasons, you should only assert self-defense when you have a reasonable chance of success based on the available evidence and under the guidance of an experienced Virginia criminal defense attorney.
However, when the facts support it, a self-defense argument can be very effective. Specifically, when self-defense is being argued, the state of Virginia allows evidence and testimony relating to the alleged victim’s prior bad acts that could be used to support an argument they were truly at-fault, even if these facts were not known to you at the time of the incident.
At Copenhaver, Ellett & Derrico, our goal is to give each and every one of our clients the best chances of maintaining their freedom and dignity in the face of criminal charges, especially if you were acting in defense of your own or some else’s well-being. We have a history of educating courtrooms about the nuances of self-defense law and will examine every possible avenue for defending your case.