“Stop or I’ll Shoot!”—The Use of Deadly Force in Defense of Property in Virginia

You come home and catch a burglar fleeing your home with your property in hand.

  • Can you use deadly force to stop them?
  • What if you do not see any of your property in their possession?
  • Does it make a difference if it is night versus daytime?
  • What if it’s your neighbor’s home you see them fleeing?

DEFENSE OF PROPERTY

A person has NO RIGHT TO USE DEADLY FORCE solely to defend his property. This applies where you are only defending your property and NOT defending yourself or your family. For example, you cannot shoot someone in the back while they are running across your yard carrying your TV.

In addition, a person has NO RIGHT TO THREATEN THE USE OF DEADLY FORCE solely to defend his property. In other words, you cannot brandish a firearm to run someone off who is breaking into your unoccupied car, for example.

The threat to use deadly force by brandishing a deadly weapon has long been considered an assault in Virginia. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). Such a threat may give the threatened person a right to defend himself by the use of a deadly weapon. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Permitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion.

The policy behind the law of defending property holds that human life is more important than your TV or your car.

Case law has held that even if actions of the person threatening a person’s property were unwarranted or illegal, an owner of personal property does not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), the Court cited State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714 which clearly stated:

When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm.

It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness and a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one’s self from a comparatively slight wrong, which is essentially wicked, and the law abhors.

You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty.

Furthermore, 1 Bishop on New C. L., secs. 839, 841, 850 states:

However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree. Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373.

For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Commonwealth v. Alexander, 260 Va. 238, 242, 531 S.E.2d 567 (2000).

But that is not to say generally that if someone breaks into your home while you are in it that you cannot use deadly force to defend yourself and your family.

There is no statutory “CASTLE DOCTRINE” in the Commonwealth of Virginia. However, while there is no case law which directly holds Virginia recognizes the Castle Doctrine defense, there is case law that suggests the use of deadly force is justified to defend your home and keep aggressors out.

For example, in Alexander v. Commonwealth, 28 Va. App. 771, 780, 508 S.E.2d 912 (1999), the Court stated:

The use of deadly force to prevent threatened harm to property is never justified except in defense of habitation. The use of deadly force, in defense of “property” can also be justifiable, but the classic formulation lists only arson or burglary as crimes against property which can justify the use of deadly force. . . . Even then the use of deadly force must have been necessary.

Defense of habitation and justifiable self-defense overlap in the “castle doctrine” which states that one may, without retreating, use force, to include deadly force if necessary, to keep aggressors out of his own house. This part of the castle doctrine is one aspect of defense of habitation. . . . [T]he justification exists in the curtilage as well as the castle. Roger D. Groot, Criminal Offenses and Defenses in Virginia 114 (3rd ed. 1994).
The defense of habitation and the castle doctrine have not been raised in this case.

So there you have it. In Virginia, the courts have ruled that while you have the right to defend your property through the use of force, you cannot endanger human life or do great bodily harm in doing so except in extreme cases.