Virginia gun rights group lays siege to ‘castle bills’

In 1985 Colorado passed a law intended to protect “people from any criminal charge or civil suit if they use force - including deadly force - against an invader of the home.” That statute soon became known as the “make my day” law, a moniker memorializing the iconic demarche issued by Detective Harry Callahan played by Clint Eastwood in the movie Sudden Impact.

Since 1985 other state legislatures have followed Colorado’s lead in considering, and often passing, various measures styled as “castle” bills purporting to either expand citizens’ rights to use deadly force or make it more difficult for criminals and criminals’ estates to sue those who have lawfully injured or killed someone in self-defense of themselves, others, or property. In 2012 legislatures in a number of states are reviewing a bumper crop of castle bills, including Alaska, Minnesota, Nebraska, North Carolina, Virginia, West Virginia, and Wisconsin. And even in Colorado some legislators aim to expand the reach of the 1985 "make my day law" to businesses.

But in Virginia something strange happened. The state’s largest gun rights group known as the Virginia Citizens Defense League (VCDL) decide to oppose all of the castle bills being considered this year.

On Wednesday February 15th VCDL President Philip Van Cleave alerted his members that the League had changed its position on all castle bills “from NEUTRAL to STRONGLY OPPOSE” and urged gun owners to demand that legislators vote against all castle doctrine bills.

“This is NOT something that VCDL is doing lightly,” wrote Van Cleave. “We have had internal debates ad nauseum between our lawyers over these bills. But after the dust settled we have decided that we cannot risk letting the current Castle Doctrine bills pass into law. . . .Way too much is at stake to goof up the excellent protections we already enjoy as Virginia citizens. In the end we might also determine from the vetting that it is best to leave Virginia's common law alone.”

This “risk” Van Cleave speaks of arises anytime a legislature enacts a statute because no matter what the legislature thinks or says it intends to do, at the end of the day, as memorialized since at least 1803 in Marbury v. Madison, it’s “the province and duty of the judicial department to say what the law is.” Since enacting a statute potentially displaces closely related common and decisional law from its precedential moorings, only when a court rules on a case will the law's actual meaning be announced.

For example, compare the canon of statutory construction “expressio unius est exclusio alterius,” holding that “the expression of one thing is the exclusion of another,” with the canon holding that statutes enacted in derogation of common law are to be strictly (narrowly) interpreted.

The first canon might be used by prosecutors to argue that after the passage of a castle bill, some of the other “old fashioned” English common law style defenses found in case law but not mentioned in the castle bill are no longer available to justify the killing of another human being. And the second canon might be asserted by a defense attorney contending that the legislature only meant add or clarify one circumstance of where self-defense is justified, and not to eliminate other defenses available at common law.

By Friday night, two days after VCDL decided to lay siege to the castle bills, two of the four bills, HB 925 and SB 64, lay dead or dying in committee, and the other two passed out of committee under a sort of truce flag. The cost of the truce was a last minute post-crossover switch to “substitute bills” which included “savings clauses” to clarify that the bills are not meant to displace any existing self-defense claim options.

HB 48 now states that

“[n]othing in this section shall either form the basis for a jury instruction or be offered a evidence of criminal liability or lack thereof in a criminal proceeding,”

and SB 4 now states that

“[t]his section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law prior to the effective date of this law.”

Van Cleave says that VCDL wanted to make sure that the legislature, in its rush to pass castle bills, didn’t “throw out the common law with the bath water.” When the legislature tinkers with “the peoples’ legal right to defend themselves,” then “we must ensure they follow the first principal of doctoring – to ‘do no harm,’” he added.

At least one legislator may be relieved that there are fewer castle bills pending passage this year. Delegate Dave Albo (R – Springfield), a prominent Northern Virginia criminal defense attorney, argued there is no need for castle bills in Virginia, summarizing existing common law as follows: