Ask Foghorn Asks Marina Medvin: Self Defense and the Defense of Others?

KYgunner writes:

I’ve done a lot of research into self defense situations and making sure that, God forbid, if I ever end up in a situation where SHTF, I have my legal bases covered and know that deadly force was justified (both for me and the court system). What I haven’t been able to find a clear answer to is whether or not deadly force can legally be used to protect someone else (outside of your own family) and what the criteria would have to be met in order for you not to land in jail for protecting someone and using force when you aren’t the main target of the attack. Any insight???

That’s a tricky question . . .

So tricky that I reached out to Marina Medvin, an attorney (and fellow Penn State grad) here in Virginia, for an answer. And while her reply applies mainly to Virginia the same general rules seem to apply to a number of other states. As with all situations where guns and the law collide you should contact a local lawyer for the best information and nothing on this site should EVER be considered legal advice, but Mariana does have some good information about the requirements for self defense and the defense of others here in my adoptive state.

The following is Marina Medvin’s reply to KYgunner’s question:

Life is the most basic right of them all. As such, all states have a law giving you the privilege to exercise reasonable force to protect your life. In many instances, the police and prosecutors will not charge someone defending his life in that way – but the facts and evidence have to be clearly lined up in favor of using any force against the assailant. This of course gets a bit complicated once a hero citizen gets charged with malicious wounding or murder when the evidence isn’t as clear.

In Virginia and many other states, self-defense is all about proportions. Your actions must be proportional to the assailants. The Virginia Court of Appeals has stated it as follows: “… the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.” Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 25 (1989). So you can’t shoot someone for punching you in the face and call it self-defense. Also, Virginia courts impose a duty on you to check out your other, less harmful, options before imposing force on the assailant – for example: what other things could you have done instead of shooting him? – but the details of that are a bit too in-depth for this discussion.

You must also be able to articulate to the court that the assailant acted in a manner as to threaten your safety or life – not just say that you feared him, you must describe his threatening conduct. Bare fear that a person intends to inflict serious bodily injury on you, however well-grounded, will not warrant killing such person if the fear is unaccompanied by any overt act indicating such intention. See Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955). Compare: “I thought he would shoot me.” vs. “He was holding a gun in his right arm, pointing it at me, and I thought he was going to shoot me.”

Furthermore, a jury always has the ability to find your use of force to have been excessive or unreasonable. The jury may also find that you were “at fault” for the conflict with the alleged assailant and contributed to the conflict in such a way as to be responsible for it.

This is why self-defense is a sticky defense – it will be up to the jury to decide if you met all of the requirements if you invoke this defense. You won’t really know until after you are tried.

Finally we get to defending a third person who isn’t a family member. You first need to understand all of the ramifications above. In Virginia, whether the person you defended is a daughter or a stranger, that person had a right to life and you had the right to defend his or her life. (This doesn’t hold true for all states – many states only allow defense of a third person when that person is a family member.)

Legally, the right to defend another is “commensurate with self-defense” – you are put into the third person’s shoes and are judged from their perspective – did the person who you defended have a right to use force of that magnitude against the assailant? Additionally, the third person cannot have appeared to have been at fault for the conflict from your perspective in order for you to invoke this defense. “One may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray.” Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 (1991).

A jury’s instruction would read something like this:
1) “If you believe that the defendant was without fault in provoking or bringing on the fight and if you further believe that the defendant reasonably inferred under the circumstances as they appeared to him that he was in danger of being killed or that he was in danger of great bodily harm, then the wounding was self-defense and you shall find the defendant not guilty.”
2) “If you believe that the defendant was injecting himself into a fight to assist [third person's name], who was in a fight with [assailant's name] because he reasonably believed that [third person's name] was in danger of great bodily harm, then the wounding was in defense of another.”

To sum this up, I will recall a classic quoted that I first learned from a NYC police officer when I was 9 years old: “I would rather be tried by 12 than carried by 6.”

Please visit http://medvinlaw.com for additional legal information on Virginia criminal laws.

— Marina Medvin, Esq. / Criminal Defense Attorney / MEDVINLAW / Alexandria, Fairfax, Arlington, Prince William / 1800 Diagonal Road, Suite 600, Alexandria VA 22314

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