What is self defense in Virginia?
“Self Defense” is an affirmative defense, and the burden rests on the Defendant to prove that it applies. Smith v. Commonwealth 435 S.E.2d 414
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.
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 constitute a threat violence justifying self defense, the words must be accompanied by some actual, overt action.
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. Our attorneys Farheena Siddiqui and Brian Szmak can help you.