Virginia is NOT a gun-friendly state

One of the most important ongoing fights against progressives is the battle to protect the Second Amendment to the Constitution. Although the 2008 Heller case was initiated over the issue of possessing firearms for the purpose of self-defense in the home, it was especially reassuring to see that Justice Scalia in the majority opinion went to great lengths explicating the foundational justifications for and meaning of the Second Amendment. [1] However, the Heller case did not address the scope of legitimate actions that can be taken in self-defense. This is an important topic – after all, what good is it to possess a firearm if the laws in your state do not strongly support its use in self-defense?

Recently I looked into concealed carry reciprocity laws in preparation for travel to other states from my home state of Virginia. I happened across the U. S. Concealed Carry Association advertisements for self-defense insurance, and was intrigued, but what really got my attention was the video of a retired law enforcement officer named Buddy who never fired his gun during a conflict – he merely held it in a safe position, with the safety on. He did not even threaten with it, yet was still arrested for aggravated assault. [2] That seemed to me to indicate a rather harsh self-defense environment.

I did not think that I would have to worry about a problem like this in Virginia, since I assumed that Virginia self-defense laws would mirror Virginia’s firearm possession laws in the sense that they are supportive of self-defense and relatively permissive. Guns and Ammo magazine reports that open carry is legal, concealed carry is “shall issue,” and “Virginia gets maximum points for a very strong Castle Doctrine law.” [3] Similarly, the Virginia Citizens Defense League considers Virginia self-defense protections to be “excellent.” [4]

However, I decided to check, just in case, and take a good look at the laws governing how a gun, or any deadly weapon, may be used in self-defense. And what I found was eye-opening. I am not a lawyer, so perhaps a lawyer in this field would have a different view, but from a simple common-sense perspective what I read in the Virginia law indicates that using a gun in self-defense can be extremely risky and life-changing.

My first and most important takeaway is that any armed citizen in Virginia should have ready access to a lawyer competent in the field of self-defense. This can be inexpensively obtained via self-defense insurance, such as that offered by USCCA, and I consider it to be indispensable.

Several principles governing self-defense in Virginia which I think are absolutely critical to understand were cited in a fairly recent case from 2001, Commonwealth v. Sands:

“The “bare fear” of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life.” [5]

“There must [also] be some overt act indicative of imminent danger at the time.” [6]

“In the context of a self-defense plea, “imminent danger” is defined as “[a]n immediate, real threat to one’s safety . . . .” [7]

“There must be . . . some act menacing present peril . . . [and] [t]he act . . . must be of such a character as to afford a reasonable ground for believing there is a design . . . to do some serious bodily harm, and imminent danger of carrying such design into immediate execution.” [8]

“The requirement of an overt act indicative of imminent danger ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity. “The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity.” [9]

The following principle, from another Virginia case, is also critically important to understand, because it deals with the amount of self-defense force that can be used:

“Moreover, the amount of force used must be reasonable in relation to the harm threatened.” [10]

These principles can be categorized simply as imminent danger, overt act, and proportionality. In the following analysis, I am assuming that the person exercising self-defense bears no fault for initiating hostilities.

Imminent Danger and Overt Act

In spite of the defining statements from the case law above, the exact meaning of “imminent” is still not completely clear to me. Must a victim refrain from using deadly force until the last possible moment? If someone is beating on a car in a road rage incident with a baseball bat, is that imminent danger? If someone breaks into a home in the middle of the night, would that be considered imminent danger?

People generally use the terms “immediate” and “imminent” interchangeably. Massad Ayoob, one of the most credible of self-defense experts, has an oft-cited quote outlining conditions for use of self-defense with deadly force:

“The use of lethal force that can end in homicide is justified in the situation of immediate, otherwise unavoidable danger of death or grave bodily harm to the innocent.” [11]

But in Virginia, there is case law indicating that “immediate” does not have exactly the same meaning as “imminent:”

“[T]he term ‘imminent’ has a connotation that is less than ‘immediate,’ yet still impending and present.” [12]

So, with “imminent,” maybe I have a little more time available than with “immediate,” but the near-term certainty of the threat is maintained. All are agreed that a vague threat of future harm is not imminent, but a threat that is more well defined and connected with an overt act even though it is not immediate (that is, happening “now”), may still be imminent. In the end it will depend upon what the Commonwealth’s Attorney or the court proceeding will eventually find to be reasonable. This is not necessarily obvious or simple. In the case of Sands v. Commonwealth cited above, the jury found the defendant guilty because the threat was not imminent, the Appeals Court reversed because they found the threat to be imminent, and the Supreme Court of Virginia reinstated the conviction because they found there was no overt act which was imminent even though the danger may have been imminent. Clear answers to this key element of the law which can determine the outcome of a case will likely not be available when the choice to exercise deadly force has to be made.

The term “overt act” is not precisely clear either. A good case in point is Clark v. Commonwealth, wherein a defendant argued her innocence because she had not committed a threatening act, and the Virginia Court’s stated policy is that “because assault requires an overt act, words alone are never sufficient to constitute an assault.” [13] She was initially found guilty, then the Court of Appeals reversed the judgement, then the full Court of Appeals upon rehearing affirmed the original judgment, and finally the Supreme Court confirmed the conviction. The controversy had to do with exactly what constitutes an overt act, and whether the defendant’s behavior over a period of two days amounted to an overt act. The point is that if even the Virginia Court system takes four tries to finally determine the existence of an overt act, then anyone acting in real time cannot expect with any certainty to end up on the right side of the law.

These examples show that the actual meanings of these important principles as applied to a particular case are not immediately obvious, even to a court, until the final outcome of the case is decided. A person claiming self-defense has to realize that he is facing an inherently risky legal environment.


Vrginia law requires in cases of self-defense that “the amount of force used must be reasonable in relation to the harm threatened.” [10] In other words, the force used for self-defense must be proportional in the sense that it can be no more than necessary to alleviate the threat. This is another key area in which outcomes may be highly uncertain and render self-defense dangerously risky. Proportionality requires a person defending themselves in a tense, dangerous conflict to somehow make a calculation about reasonable force right in the heat of the moment. What if the assailant is pointing something but it’s not clear whether it is a gun or a knife? How is it possible to make an instantanteous assessment of an attacker’s physical capabilities? When is it “proportional” to use a gun against an attacker armed with a knife? This proportionality requirement complicates the self-defense decision, and forces a defender to account for the criminal’s well-being at the same time that he is concerned about how best to make his own defense. A self-defense incident that took seconds will be fought over by lawyers and decided upon by jurors in court who were not there, who were not faced with a life or death decision, and who have no time limit to decide the right level of force. There is simply no way that a defendant can be confident that the court will reach the same conclusion he did.

This concept requiring a careful reasonable force assessment in the face of an imminent self-defense scenario is completely at odds with the advice from experts recommending the most effective means of self-defense. Discussions by these people center around what it takes to stop an aggressor. For example, a single bullet is often not sufficient to stop an attacker, but a single bullet can immediately stop him if it causes enough brain or spinal cord damage. [14],[15],[16] How many of us are so expert that we can accomplish a head or neck shot under pressure? A standard rule of thumb is that an assailant can cover a distance of 21 feet in one and a half seconds, rendering a gun useless if it is not already drawn before he gets close. [11] Considerations such as these indicate that if a dangerous conflict cannot be avoided, then use of overwhelming deadly force is a quite reasonable approach to effectively neutralize the threat, and precise calculations about how much force is necessary are irrelevant when it may take multiple shots to stop a deadly force threat. But under Virginia law, the jury will have to be convinced that the use of deadly force was proportional, even if the defendant’s intent was only to stop his attacker.

Finally, Virginia does not have a Castle doctrine statute, and it appears that the Virginia law for use of deadly force for self-defense in the home is no different than for any other self-defense action. [17] One additional concern has to do with civil lawsuits. An armed citizen who injures a criminal assailant is not provided immunity in Virginia from a lawsuit for civil damages brought by that person. [18],[19]

The above review of Virginia self-defense law should make it clear that Virginia imposes severe restrictions on the use of deadly force for self-defense. Further, the definitive meaning of these restrictions may be difficult to determine in a given case, and this injects a high level of uncertainty into the process and the final case outcome.

Andrew Branca notes that most legitimate self-defense cases never go to trial because the prosecuting attorneys generally don’t bring charges if they determine that legitimate self-defense has been exercised. [20] A recent case in Frederick County, Virginia illustrates exactly this outcome. A woman broke a bedroom window and reached inside a home, and was then killed by the homeowner who fired through the window with a shotgun. The Commonwealth’s Attorney used jury instructions for justifiable self-defense to make his determination not to bring charges. [21],[22] To which I say “thanks be to God” for Virginia’s rural, common-sense Commonwealth’s Attorneys. However, given the risks involved if a self-defense case does go to trial, armed citizens should not have to rely on the judgment of a particular Commonwealth Attorney. They should instead have the full force of the law supporting their self-defense actions.

There are some things that have been done in other states to improve the self-defense environment which could be implemented in Virginia.

In Utah, deadly force may be used to defend against death or serious injury or forcible felony. The list of forcible felonies includes burglary, which is illegal entry to a property with intent to commit certain crimes. [23] This expands the latitude for use of deadly force for self-defense in cases where a property has been illegally entered, because burglary does not exclusively involve deadly force or serious bodily injury.

Utah law also allows a citizen to warn “another of the actor’s possession of a deadly weapon in order to prevent what the actor reasonably perceives as a possible use of unlawful force by the other.” [24] There are two key points here. This warning can be given for “unlawful force,” not just deadly force. Also, such a warning is specifically excluded from being characterized as threatening. This law provides the defender the option of defusing the situation before it gets to the point of imminent death or serious bodily injury.

In Arizona, a similar law labeled “defensive display” has been introduced as a legitimate means of self-defense. This law allows warning the aggressor or physically holding or drawing the firearm. The operative language which supports self-defense is that such display is allowed “to protect yourself against another person’s use or attempted use of unlawful physical or deadly physical force.”[25] Note that this defensive behavior is permissible when confronting unlawful force as well as deadly force.

In Utah, the use of deadly force for protection inside the home is much less constrained than in Virginia. In the case of a home invasion, deadly force is justified for a series of reasons, many of which are less serious than the perception of immediate death or serious bodily injury. There is also a presumption of reasonable defensive action under these conditions:

“The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.” [26]

This presumption within the Utah statute recognizes the special level of security that should be enjoyed within the home and incentivizes any intruder against breaking into a home. This greatly reduces the risk when it is necessary to employ deadly force against an intruder within the home.

Another critically important self-defense protection provided by Utah is that a person injured or killed committing a crime cannot recover civil damages against a person legitimately defending life or property. [27]

In summary, the armed citizen in Virginia should not presume that the laws governing self-defense are as supportive as the laws governing possession of a firearm. In fact, the legal conditions for use of deadly force in self-defense are structured to protect the life of the criminal, except for the extreme circumstance of imminent death or serious injury. This thought process embedded in the self-defense law incentivizes and provides the advantage to the criminal, because he does not have to abide by the self-defense restrictions. The asssailant does not have to wait until death or serious bodily injury is imminent; he does not care about proportionally how much force to use; he has no qualms about whether or not to use a deadly weapon to threaten; he knows that his victim has to be concerned about not using too much force; and if he is injured, he knows that he can sue his victim for damages.

There is no doubt in my mind that the self-defense law in Virginia could be much stronger than it is. A strong statutory implementation of fair self-defense principles would contribute greatly to the preservation of our personal liberties in Virginia.


1. District of Columbia v. Heller, 554 US 570 (2008)

2. Buddy Sheppard Video. U. S. Concealed Carry Association.

3. Wood, Keith. “Best States for Gun Owners.” Guns and Ammo. November 3, 2017.

4. “Virginia.” US State Pages.

5. Commonwealth v. Sands, 262 VA 274, 736, 553 S.E.2d 733 (2001)

6. Commonwealth v. Sands, 262 VA 274, 736 553 S.E.2d 733 (2001)

7. Commonwealth v. Sands, 262 VA 274, 736 553 S.E.2d 733 (2001)

8. Commonwealth v. Sands, 262 VA 274, 736, 553 S.E.2d 733 (2001)

9. Commonwealth v. Sands, 262 VA 274, 737 553 S.E.2d 733 (2001)

10. Diffendal v. Commonwealth, Va.App. 417, 421, 382 S.E.2d 24, 26 (1989)

11. “Step One – The Central Ideas: Ability, Opportunity, Jeopardy, and Preclusion.”

12. Sam v. Commonwealth, 13 Va. App. 312, 325, 411 S.E.2d 832, 839 (1991),

13. Clark v. Commonwealth, 691 S.E.2d 786, 789 (2010) 279 Va. 636

14. Michalowski, Kevin. “What Does It Take To Stop An Attacker? (One Round Typically Doesn’t Do It).” US Concealed Carry. February 24, 2014.

15. Vail, Sydney, M.D. “Stopping Power: Myths, Legends, and Realities.” Policemag. January 16, 2013.

16. Ellifritz, Greg. “An Alternate Look at Handgun Stopping Power.” Buckeye Firearms. July 8, 2011.

17. “Castle Doctrine.” American Firearms Training: Concealed Carry + Gun Safety Resources.

18. “Self Defense and ‘Stand Your Ground’.” National Conference of State Legislatures. March, 9, 2017.

19. Branca, Andrew. “Self Defense Immunity Laws: Which Sates Protect You Best?” Legal Insurrection. July 19, 2013.

20. Branca, Andrew. “That Odd Duck, Ohio: Self-Defense as an Affirmative Defense (Kind Of).” Legal Insurrection. July 31, 2013.

21. Goodenow, Evan. “Alleged drug dealer cleared in killing at his Frederick home.” The Winchester Star. May 10, 2018.

22. “Virginia Jury Instructions – Self-Defense – Defendant without Fault.” Rockbridge County and the City of Lexington Commonwealth’s Attorney. – Self Defense – Defendant without fault

23. Utah Code 76-2-402

24. Utah Code 76-10-506

25. Arizona Revised Statutes 13-421

26. Utah Code 76-2-405

27. Utah Code 78B-3-110