Self Restraint, Self Defense, Retreat, Defending Yourself, Home, Property, Castle Doctrine, Violence.
What To Do When… You Have To Defend Yourself – Part II.
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What To Do When… You Have To Defend Yourself – Part II.
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:28
Hi, and welcome back to another podcast with Critzer Cardani. Here in Richmond, Virginia. I’m Jackie, and this is Scott.
Scott Cardani 0:35
Hey, how are you doing Jackie, what’s on our docket for today?
Jackie Critzer 0:38
Today what to do when you defend yourself or you have to defend yourself? Part two. It’s the doctrine of retreat.
Scott Cardani 0:48
And that’s a big one. Because, again, if you listen to our last podcast, we got into kind of the big picture self defense issues and the fact that a judge or jury gets determined sort of what’s reasonable response and then, but what we wanted to talk to you today is do you have to retreat in a self defense and situation? What’s your obligation? Those kinds of things and retreat?
Jackie Critzer 1:12
Well… RETREAT. What does that even mean?
Scott Cardani 1:14
What does that even mean? I think the best way to describe it as what we were talking about is this. Say I’m outside, I’m in a hallway, fairly long hallway, 12 foot long. I have maybe in the courthouse, maybe in the courthouse or I’m in Walmart, maybe, whatever it is. So a lot of open space, and somebody is approaching me with a knife and saying, Hey, Scott, I’m going to stab you. You know. So at that point, I think people get it wrong with self defense. As far as the law goes, don’t get me wrong, my belief is somewhat different than that. But at that point, you have lots of opportunity to get out of that guy’s way, you have no need to approach him. There’s just no point in it call 911 Do something, right, because I’ll guarantee you approach and it was gonna go bad 100 different ways. No matter how tough you are, how much you could just, it doesn’t even matter that you could take the knife from them and put it where the sun don’t shine, which a lot of people can’t because normally a person wielding weapons usually doesn’t know how to handle them as a lot of truth to that. That’s why people do get shot, not because they know what they’re doing. But usually because they don’t know what they’re doing. Right? So the point is, in that situation, it’s reasonable that you would just walk away. Why would you approach anybody with a knife and start a fight? And they say, oh, yeah, give me a right to pull out my Smith and Wesson 45 and shoot him in the head, right? I don’t think a jury is going to find that for a reasonable or anybody else, especially when they’re saying you could have left. And maybe that person is mentally deranged, or maybe he’s had a bad day or had too much to drink, whatever it is, all of those factors are going to play into how the jury that judge looks at your response of self defense. In Virginia. I call it the castle doctrine. It’s really not called the castle doctrine in Virginia, but in your home. There’s no duty to retreat really, because they figure, the way we look at is your home as your last place of refuge. So if you’re sitting in your home and somebody breaks the window, with a gun or a knife, you’re pretty open to what you can do to respond to that.
Jackie Critzer 3:34
Well, we’ve seen these lawsuits though and things in the news, the sensationalized pieces where the burglar fell through the sunroof, and then sued the homeowner. We’ve seen these things. So you’re saying you find an intruder in your home, you don’t have to leave your home,
Scott Cardani 3:50
You don’t have to leave your home. And that’s pretty clear in Virginia law and you at that point, your life is in danger. They’ve entered your home. So your reasonable response to force at that point can be shooting them with a gun. And I say normally because that should be okay. And normally is okay.
Jackie Critzer 4:10
Defending your property, even if there’s not a risk to life or limb is what you’re talking about.
Scott Cardani 4:17
Yeah, your home, let’s make sure it’s not home, not my car, my different property. Obviously, if you’re in your car, you can’t escape out of your car unnecessarily. If somebody comes at you, you know, it’s not easy to crawl over the other other side of your car and crawl the car, especially in today’s modern cars, you don’t have this big bench seat right over. So there’s a lot of that stuff. But our biggest point today is just to realize, number one, again, for me, it goes back to our constitutional obligation to have self restraint. You know, we have a duty to live in a society of laws and rules and that requires us first number one to be the person in control of ourselves and we have to govern ourselves. Sorry, it doesn’t work. If we ever nobody’s governing themselves, and it’s just chaos. So we have to make good decisions. And I, you know, we go to the self defense classes, and I’m all about that, trust me if you know anything about me, so, but we just still have to be reasonable just because somebody walks down the road and I’ve seen this happen, somebody walking down the road, going home will kill everybody and some guy, that gun goes out because he wants, he feels empowered to defend, and I get that. He’s like, you’re not gonna get anybody, dude, you’re gonna probably get a brandishing charge. Right? So because you really didn’t have any reason to get into that fray.
Jackie Critzer 5:34
Now, you’re talking about sit there, they’re coming in the door. Last week or the other podcast, you talked about the guy who was sort of half in half out? What about on your property line? And then just talking about here in Virginia, we can talk about Montana and Colorado and other states and how they feel about property. Virginia, somebody’s come on your property, they’re in your front yard, clearly your property of your home? Can you defend your property? The way you can defend your home?
Scott Cardani 6:04
Yes and no. How about that for a great answer? It’s not it’s not your it’s not your last point, you can still walk into your house. So you engaging them for being on your property. I think, quite frankly, you can say you need to leave my property and hold your gun up. And I don’t think anybody could get you for brandishing because you’re you’re protecting your property, they’re coming onto your property, which is a threat to you. Why else would they be coming on your property? Obviously can’t do that to the mailman folks. Okay, he sort of he has some right to come on and put his put your mail and trust me, I’ve seen it or I wouldn’t say it. So anyways, but the point being, you have somewhat of a again, this is a self restraint thing, what’s the best thing to do in that situation? Here comes some guy on your property, best thing to do is buy go on your door, shut the door and go 911 I got this crazy guy out my, you know, obviously he keeps calm and that changes the whole circumstance. But most people threaten. And people don’t we see this in the sensationalization of news. But that’s a one in 1001 in a million case, 95% of the time, and most people do a lot of talking but don’t do a lot action. It’s just gonna have a
Jackie Critzer 7:15
really hard time seeing somebody coming up my driveway or coming across my lawn, whether they’ve got a knife or a gun, or I can’t tell what they have. And they’re coming towards my front door. They’re coming towards the front of my house, I’m gonna have a really hard time. Only picking up the phone, I pick up the phone and say I’ve just killed an intruder just like she did in sleeping with the enemy. Right? He came in her house, if you haven’t seen the movie, you really should. But the husband estranged husband, who is so severely abusive, I found her made his way into her home. And she she did I think she took his gun. I think his gun ended up on the floor, and she grabbed it. And she was holding it and she’s on the phone. And she said please come she’s called 911. And he’s laying on the floor. And she’s right there got a gun on him. Please come quickly. She says I’ve just killed an intruder. Right. And him the look on his face is like, oh my gosh, and she shoots him and she kills him. I mean, I can understand why somebody might do that. But what if it’s not your home? What if I’m over at your house? And you are you don’t see what’s going on? And I do can I still defend your house the way that we’re talking about?
Scott Cardani 8:23
Again, I wish I could say it should be an easy? Yes, it really should. I mean, it really should, folks, nobody should have the right to take upon themselves to come on your property with the ill intent period. And that’s where I get into that whole thing of self restraint. At that moment, you broke your protocol, and there is a provision even in the criminal law where but for his actions, none of this would have happened. So but for him walking in, get the ‘but for’ so but for that piece of information happening, none of the other would have happened. And that is a good, a good self defense attorney will bring that up. And there’s a lot of law out there that nobody uses in this area that gives that as an opportunity to bring some things to bear. But that’s the problem with self defense. If you don’t know what you’re doing, you miss some points. And your defense becomes imperfect. And then you and again, the ‘imperfect defense doctrine’ basically says you defended yourself but you went too far. So sometimes it’ll lessen that charge from malicious wounding to assault and battery or something lesser. So that’s not always a really obviously as imperfect self defense. So you don’t ever want to be shooting for imperfect self defense.
Jackie Critzer 9:33
Well, that’s what maybe a prosecutor might say if your defenses or your clients defense is self defense, a prosecutor Commonwealth’s attorney in Virginia is gonna say it’s imperfect. Yeah, it’s it You went too far.
Scott Cardani 9:46
And that’s what the and that’s the biggest thing and they always do that by forgive me. Not everybody and not always. What I see a lot of is they look at your injuries, not at your response. So and that’s to me the wrong, the whole wrong thing with it, it shouldn’t matter how if I punch the person and I have heavy hands, and I break their face, because I’m just responding to the punch. So if I just hit him once or twice, and they hit me that that, to me is reasonable. That’s a reasonable response. But what I see a lot of courts looking at, well, there was blood on his face, and there shouldn’t have been blood on his face. So therefore, you went too far. And same thing with Castle Doctrine, your home, if you put 10 bullets in them, somebody somewhere is going to say, well, you went too far, you should have only shot once. And I’m like, really? What if you’re still coming at me. And there’s a lot of cases, we go into a lot of people and trigger a lot of people with some of the cases and how many times somebody shot somebody, but until you’re behind a gun, and somebody’s coming in, you talk to somebody in war, the first time they had to shoot somebody, very few people just pop off one fire. I mean, there’s just so much adrenaline, so much issue with you in that moment. You may not know how, and there’s a lot of psychology in this where they interview cops after they shoot. They always say, Oh, I only shot once or twice, and they may have unloaded their gun, I had no idea. Because it’s so stressful.
Jackie Critzer 11:14
So what about the idea that if you you can only use as much force as necessary to stop whatever attack is coming at you what I mean, is that how does that play into this? And…
Scott Cardani 11:28
That’s the whole doctrine. I mean, that’s the thing, you’re supposed to be reasonable in your response. The problem is the person determined reasonableness usually. And I’ll say it this way, for a long, long time in history. Now, there’s been this push for getting rid of guns getting rid of all violence. And really, it comes down to a belief that society shouldn’t be without violence, right. And people get into this, well, we didn’t have guns, we wouldn’t have violence. And we didn’t do this. And so what we’ve done is, we just keep trimming this doctrine of self defense by that underlying current of saying, well, nobody should hurt anybody else. And what we do is we lose sight of the person who did the hurting in the first place. And that’s the problem I have, what I like to live in a society of no violence. Absolutely. But you know, it’s interesting, when you look at some places like Great Britain, who took away the rights of the people to own guns, the next thing that happened is in bars and stuff, they started using other objects. First, it was baseball bats, and then it was broken glass bottles, and then, you know, it didn’t take away the violence, it just took the methodology of violence away.
Jackie Critzer 12:33
Well, that’s right.
Scott Cardani 12:34
So you can’t my point is you can’t condition people by taking away the tool, they’ll just get a different tool. The real issue is, is a heart issue. But my point is, what has to come back to balance is that there’s two people involved in this frickiss or fray or whatever you want to call it. And both people have to be weighed and judged appropriately. And a good defense counsel is going to bring up the other the victim’s side of this and what caused our guy to do what he did, and why he did it, and why the fact that he broke his nose is irrelevant to what happened in this case.
Jackie Critzer 13:13
So I’m the prosecutor in this scenario, and I’m going to say, You, your client used too much force, more force than was necessary to stop the attack that was that was coming on them. Yes. And then and your defense is then?
Scott Cardani 13:28
No, my No way. I’m gonna say but for his behavior, number one, this never happened. Number two, all I did was strike him back away, he struck me, you know, there’s a lot of things in there, you know, yeah. So, but again, we’re kind of gotten lost one castle doctrine in the right to defend your home or your space. And, again, those things don’t apply. But the idea behind all this is, when somebody enters your space like that, or put you in a corner, you can’t back out. They have ill intent at that point. And you’re responding to that life event that you believe your life is in danger. That’s the key to it, you believe you’re in, you’re in danger of bodily harm, or death. That’s what you have to believe, to use self defense. And bodily harm is what if you punch me in the face that hurts as bodily harm, you know? So that’s kind of the issue. And here’s what people don’t understand. We’re talking about self defense. And I want to make this clear. What happens in these cases is, let’s talk about this scenario. Jackie’s husband, Darrell and myself, will get in a fight. Say, Darrell starts as this time, I swing back and break his nose. What happens is, but for Darrell going to place there’s no self defense because there’s no crime, but there goes the police later says he broke my nose, I want charges. They take out a malicious wounding charge against me. And that’s where the case starts. And so you’re charged with malicious wounding. What do you do? Is there a self defense argument to be made here? And that’s how these all started there’s an assault and battery malicious wounding, homicide, all those things, you know, you killed somebody coming into your house, that’s a homicide. So you have to bring the self defense to bear on that. So all those things and people misunderstand, it’s not like we’re having some kind of playing court where two people come in and they get to tell their story, you’re charged and you’re trying to explain and push to the court that you did nothing wrong in this situation.
Jackie Critzer 15:21
You as the defender.
Scott Cardani 15:22
You as the defender, you as the one charged the criminal had every right to do everything you did. And you’re justified in your behavior, that’s the key, your behavior is justified, your response to that attack is justified. And so just want to understand that. So when you’re charged with a charge, and you believe, Hey, man, I broke in my house, I only shot because I thought our lives were like kids lives were in danger. You know, that’s absolutely fine. And that’s why you need to find an attorney who understands this, and is going to fight for you, and honestly continue to fight for the law change, because how law changes is two ways. Either the legislature changes the law, or a court system through what’s called the appeal process, starts to write opinions that are more favorable towards self defense. And what’s happened for years and years and years is those opinions have gone to get self defense and whittled away self defense.
Jackie Critzer 16:17
It’s important to remember too, that we’re talking very specifically about Virginia, self defense looks different in different states, this is very territorial. Property rights are very different out West, especially in Montana, Colorado, those states just have very different laws that allow you to protect your property, your animals, your livestock, in a different way than we do here on the East Coast. So just keep in mind that we’re really speaking very specifically about in Virginia, and that if you go elsewhere, if you’re the bad guy, and you own somebody’s property in Colorado or Montana, you may find yourself with a few extra holes in you versus in Virginia, where you might not or lawfully might not.
Scott Cardani 17:00
Like one other distinction. In Virginia, you have your cities and you have your counties. And that does make a difference. It’s just reality. Counties look at things much more pro self defense than cities because it and again, it says underlying curb to curb violence underlying flow current to her violence. Yeah. So you get in a city with a judge who sees violence every single day and he’s sick and tired of it. He may start saying, Well, you didn’t have a right to self defense. So I’m not finding your you didn’t do you didn’t act reasonable. See you later. So that’s why sometimes a jury so important.
Jackie Critzer 17:35
So today’s points, the doctrine of retreat when you’re in your home?
Scott Cardani 17:40
You don’t have to retreat.
Jackie Critzer 17:42
When you’re not in your home?
Scott Cardani 17:43
You have to retreat ‘reasonably’. That means you can’t if you can’t, like here, if I’m back in the corner, I can’t go any further as far as I have to go. But if you’re in Walmart, and you have the whole store to retreat, you probably ought to retreat and use the phone.
Jackie Critzer 17:58
Very good. So like and subscribe on our podcast. Next time, we look forward to seeing you again when we engage a whole new series and thank you for listening today.
Scott Cardani 18:11
Have a good day. Thank you.
What To Do When… Outro 18:12
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