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Virginia Judges Are Forcing You to Make an Ugly Choice

THE USE OF DEADLY FORCE FOR SELF-DEFENSE IN VIRGINIA:

WELCOME TO THE WONDERFUL WORLD OF JONES V. COMMONWEALTH

WHAT SHOULD YOU DO?

You are walking up to the front door of your local convenience store to buy your favorite beverage.  Lo and behold, sitting on a rail fence adjacent to the entrance is a fellow whom you know to have a history of extreme violence, including shooting you in the leg about six months earlier.  You have a Virginia concealed carry permit and you are carrying your 9 mm semi-auto handgun concealed in an inside-the-waistband holster.

The gentleman’s hands are on the fence rail and you can’t see any weapons.  However, as you approach the door, he sees you and says, “I think I’m gonna shoot me this SOB today.”  He then makes a move with his right hand as if he is reaching for something in his waistband.

You are now faced with a very difficult tactical and legal dilemma in Virginia:

Given your past history with this fellow, his apparent continuing hostility toward you as evidenced by his verbal threat to shoot you, and his apparent move to reach for what might be a firearm or a knife in his waistband, you very reasonably want to deploy your handgun and shoot him centermass as a matter of self-preservation.

In the past, if you did so in Virginia, you were highly likely to be arrested and charged with a felony, and you would very likely defend the case on grounds of self-defense.  The burden would have been on you to present enough evidence to show that based on all the circumstances – including the attacker’s overt physical actions – your fear of an immediate deadly force attack was reasonable.  

In the past, whether your fear was reasonable would have been submitted to a jury at trial, and 12 fellow citizens would have decided whether the attacker’s actions justified your resort to deadly force.  In simple terms, if you chose the tactically-sound course of shooting this fellow before he could pull a gun or knife and try to kill you, ya rolls the dice and ya takes your chances with a jury of your peers.  Fair enough.  

Today, however, things have changed.  There is incredibly twisted case law in Virginia which says that a situation like the one described above is legally insufficient to support a reasonable fear of immediate death or great bodily harm.  Even when the attacker has shot you in the past, has just threatened to shoot you again, and has made a move that looks like he is reaching for a weapon!  

In the minds of some misguided appeal court judges in Virginia, unless and until you see a deadly weapon, you may not legally resort to deadly force to defend yourself.  If you do so, the issue of whether your fear and resort to firearms was reasonable will not be submitted to a jury for decision.  Instead, the case will be decided against you by a trial judge – one person – who may hate firearms and may never have been confronted by a similarly threatening situation.  

That rule of law was announced in November 2019 by a three-judge panel of the Virginia court of appeals in Jones v. Commonwealth.  The panel’s statement of the law of self-defense in Virginia not only deprives you of your constitutional right to a jury trial, but puts you at the mercy of judges who are hopelessly prejudiced against the use of firearms for self-defense.  And it places you on the horns of an awful dilemma, when you’ve done nothing wrong, but are unfortunate enough to be threatened with deadly force by a known criminal.  

Tactically speaking, you are now faced with a very difficult choice.  On the one hand, you could follow the law and wait to see the attacker’s weapon before you respond with deadly force.  Doing that should get you to a jury if you survive the encounter, but also might very well get you killed.  On the other hand, you might choose to do the tactically sound thing and shoot the miscreant before he can deploy a weapon.  But by doing that, you risk a felony conviction at the hands of a gun-hostile trial judge.  Welcome to the wonderful world of Jones in an increasingly anti-firearms judicial system in Virginia.

KNOW YOUR RIGHTS AND THE RISKS YOU FACE

Learn about when you are and are not permitted to rely on firearms to defend yourself under Virginia law, and find out how best to deal with the mess described above.  Click the button below and sign up for my course, “The Legal Use of Firearms for Self-Defense in Virginia.”  

Stephen L. Sulzer
administrator
Mr. Sulzer has been practicing law in Washington, D.C., for more than 39 years, and has been a partner at some of the city’s most prominent national law firms, including Steptoe & Johnson and, most recently, California-based Manatt, Phelps & Phillips. In fall 2013, Mr. Sulzer broke away from Big Law to found his own law firm, and after much planning and preparation, expanded his practice to encompass firearms-related matters. He is particularly focused on criminal and civil defense work for clients who have had to use firearms in self-defense. He has also expanded into matters involving federal and state firearms regulation, as well as Second Amendment-based litigation. Mr. Sulzer has an AV Preeminent Peer and Judicial Rating from Martindale Hubbell, the highest rating given by Martindale-Hubbell for legal skills and professional ethics. Mr. Sulzer is pleased to have been selected as a referral attorney for both the United States Concealed Carry Association and the Armed Citizens Legal Defense Network. Mr. Sulzer has developed a two-part training course entitled “The Legal Use of Firearms for Self-Defense in Virginia – When the Defensive Use of Firearms Is Permissible and How to Win the Legal Battle That Will Follow.” For the past five years, Mr. Sulzer has taught the course regularly in northern Virginia at the Nation’s Gun Show in Chantilly and Fredericksburg (through Historic Arms Corp.’s Firearms Training Store), at Silver Eagle Group in Ashburn; at Fairfax Rod & Gun Club in Manassas; and at The Gun Dude in Falls Church. The course has received enthusiastic reviews from the northern Virginia shooting community and has become the gold standard for those who carry concealed or rely on firearms for home security and self-defense. Mr. Sulzer is now offering the course live online through the National Firearms Law Institute. He is also developing an online version of the course covering the law of self-defense in several mid-atlantic and southeastern states and will ultimately cover the law in all 50 states and the District of Columbia. Mr. Sulzer has also expanded NFLI’s course offerings with a new course on Virginia’s 2020 gun control legislation and a short course on insurance coverage and other programs available to protect your finances if you are involved in a self-defense incident. Mr. Sulzer has been active in the shooting sports dating back to the mid-1990s, when he began shooting service rifles in competition against the Marine Corps Rifle Teams and the Army Marksmanship Unit. He began his competitive shooting career with the M1A and transitioned to the AR-15 in 2000. He competed in three position “across the course” iron sight matches at distances of 200, 300, and 600 yards, and has also competed at 1,000 yards. When Mr. Sulzer retired from competition in 2005, he was shooting Master level scores. He still shoots handguns (particularly M-1911s) avidly, has held a Virginia Concealed Carry Permit since the late 1990s, and is an NRA-certified pistol instructor.
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