Some Thoughts On Self-Defense And The Law

Some Thoughts On Self-Defense And The Law In West Virginia

West Virginia Citizens Defense League
West Virginia Citizens Defense League

West Virginia –-( Most of us who choose to carry a handgun for person protection would probably agree that it is better to carry a handgun and not need it rather than to need a handgun and not have it or, as it has also been stated more succinctly, better to be judged by 12 than carried by 6.

The basic rule of the use of deadly force in self-defense in West Virginia was articulated by our state Supreme Court in Syllabus Point 7, State v. Cain, 20 W.Va. 679 (1882).

When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.

In other words, as our state Supreme court more recently explained in Syllabus Point 1, State v. Baker, 177 W.Va. 769, 356 S.E.2d 862 (1987), “The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return.” Words alone are not enough to justify deadly force in self-defense:  “Mere words or threats, unaccompanied by an overt act, do not constitute ground of justification or excuse of a homicide, under the law of self-defense[.]” Syllabus Point 7, in part, State v. Snider, 81 W.Va. 522, 94 S.E. 981, 982 (1918).

In West Virginia and virtually all other states, the simple act of drawing a weapon from its holster or “flashing” what had been a concealed weapon is, as a matter of law, an exercise of deadly force.  In general, a person can only draw his or her weapon when the circumstances justify firing it.  According to published research, most self-defense cases involving a firearm involve only drawing a gun and do not involve firing a gun.  However, anyone who carries a gun must be aware that beyond the legal limitations on the use of deadly force, as a practical matter, he or she must be prepared to maintain control of the gun (preventing the bad guy or others from wresting control of the weapon), not to mention be prepared to fire it if simply drawing it does not terminate the threat.

In West Virginia, an innocent victim (as opposed to, for example, the instigator of a fight that the other combatant escalated into a potentially life-threatening situation) has no duty to retreat before using deadly force once presented with an imminent danger of death or serious bodily injury.  However, “when there is a quarrel between two or more persons and both or all are in fault, and a combat as a result of such quarrel takes place and death ensues as a result; in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case: first, that before the mortal shot was fired the person firing the shot declined further combat, and retreated as far as he could with safety; second, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm . . . .”  Syllabus Point 6, in part, State v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948).

Like most states, West Virginia is a Castle Doctrine state.  However, our Castle Doctrine rule is slightly different than most other states.

In Syllabus Points 2 and 3, State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550 (1981), our state Supreme Court held:

The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The reasonableness of the occupant’s belief and actions in using deadly force must be judged in the light of the circumstances in which he acted at the time and is not measured by subsequently developed facts.

This formulation of the Castle Doctrine is not quite identical to the prevailing language used in Florida and the nearly two dozen states that copied Florida’s 2005 self-defense reform law.   Fla. Stat. § 776.013 provides, in part:

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
As you can see, Florida has a rather clear-cut presumption that an intruder intends harm, while the West Virginia rule simply authorizes the use of deadly force against an intruder who has committed a simple assault (rather than the normal standard of imminent danger of death or serious bodily injury).  However, in practice, this is a distinction with almost no difference.
The only discernible reason for the differences in West Virginia’s formulation of the Castle Doctrine and the Florida model that most states follow is that Florida’s rule is the product of legislation while West Virginia’s rule is the result of the facts and circumstances of a specific case in which the court was called upon to interpret (and in this case, evolve) the common law.
As a general matter, few cases in West Virginia result in important, precedent-setting decisions by our state Supreme Court because they never reach the Supreme Court for a decision.  Since we’re talking about a legal issue applicable primary in criminal cases, it usually takes a conviction (or, as in W.J.B., an adjudication of “delinquency” in a juvenile case where the juvenile was not tried as an adult but instead under the juvenile justice system in which the court holds a bench trial without a jury).  Assuming the evidence does not clearly contradict the defendant’s story, most juries in our state give most defendants asserting self-defense every benefit of the doubt.  Thus, our state Supreme Court has never been confronted directly with the question of whether to declare a more expansive “Castle Doctrine” rule.
In West Virginia and most other states, deadly force may not be used against a simple trespasser on private property.  In West Virginia, “A bare trespass against the property of another, not his dwelling house, is not sufficient provocation to warrant the owner in using a deadly weapon in its defense. Under certain circumstances, trespass against the dwelling house will justify it.” Syllabus Point 1, State v. Clark, 51 W.Va. 457, 41 S.E. 204 (1902).
Given the recent spate of incidents involving “flash mob” violence (none of which, fortunately, have yet occurred in West Virginia), it is worth pointing our our state’s law governing an individual’s right to defend against a mob attack: “Where, in a trial for murder, there is competent evidence tending to show that the accused believed, and had reasonable grounds to believe, that he was in danger of losing his life or suffering great bodily harm at the hands of several assailants acting together, he may defend against any or all of said assailants, and it is reversible error for the trial court to refuse to instruct the jury to that effect.” Syllabus Point 4, State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945).
In West Virginia, when a defendant asserts self-defense, the burden rests on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense.  Between 1927 and 1978, the defendant had the burden of proving the “affirmative defense” of self-defense by a preponderance of evidence.  However, in Syllabus Point 2 of State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978), our state Supreme Court held: “Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.”  Nine years later, in Syllabus Point 6 of State v. McKinney, 178 W.Va.200, 358 S.E.2d 596 (1987), the court added: “Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of self-defense beyond a reasonable doubt.”  “Some evidence” is an extremely minimal standard.
Two years ago, we did have an important, precedent-setting decision in a self-defense case, State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009), in which our Supreme Court set several important precedents, including an overruling of its previous holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927) (“Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant. No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot.”), which results in a more liberal construction of the “imminent” danger element of self-defense.
The decision in Harden, overruling what I will call the “shoot or die now” rule, may prove significant if the Logan shooting case goes to trial.  Based on a combination of the burden of proof resting on the state, the extreme danger the robber posed to bystanders, and my knowledge of the people of Logan County (where any trial would be held), based solely on the information reported in the media (a very dangerous assumption but one which I will need to make in order to offer any commentary at this time), I would be shocked if Mr. Canul is convicted of anything.  This was an opinion I formed well before hearing of the extensive readers’ commentary in this WSAZ story and the formation of the Facebook group Free Jesus “Jesse” Canul.
In 2008, when the Legislature passed what they called a “Castle Doctrine” bill, they actually did little more than clarify the law relating to liability in civil cases where a person is sued in civil court.  Some of us pressed the Legislature to pass a stronger bill that would have adopted the Florida model, but those pleas fell on deaf ears.
Aside from the slightly different Castle Doctrine rules, Florida and most of the states that copied its law have two somewhat smaller, but important provisions that are lacking in West Virginia law.
First, Florida’s law contains a specific requirement that were a colorable claim of self-defense exists, the police must investigate and find probable cause to believe the use of force was unjustified rather than arrest first and investigate & ask questions later. See Fla. Stat. § 776.032(2); see also, e.g., Ky. Rev. Stat. § 503.085(2) (same); S.C. Code § 16-11-450(B) (same).
Second, Florida and many its followers also have an “immunity from prosecution” which, unlike the defense of self-defense at common law, allows a defendant to raise the issue of self-defense at a very early stage in the proceedings (before trial) and have the charges dismissed if there is a preponderance of evidence supporting self-defense; of course, if the case is in serious dispute, the case goes to trial, where the state must prove beyond a reasonable doubt the defendant did not act in self-defense. See Fla. Stat. § 776.032(1); see also, e.g., Ga. Code § 16-3-24.2 (same); Ky. Rev. Stat. § 503.085(1) (same); S.C. Code § 16-11-450(A) (same); State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011) (interpreting statutory immunity from criminal prosecution in cases of self-defense). In West Virginia, self-defense is merely a “defense” that a defendant must wait until trial to exercise; no matter how strong the evidence may indicate self-defense, the police have no duty to investigate & rule out self-defense before making an arrest and, if a case is prosecuted, a defendant has no effective pre-trial remedy to assert & test the merits of a self-defense claim.
In conclusion, although the rule of “imminent” danger may be more relaxed in our state that it once was, as a general matter, the circumstances under which any person is justified in using deadly force in self-defense or the defense of others generally tend to both arise and dissipate very quickly.  Thus, in most cases, a legally-justified shooting will be based on a split-second decision where the shooter does not have time to carefully deliberate the “Shoot or don’t shoot?” question and faces the prospect of “shoot now or die now.”
Beyond these differences, another area where West Virginia’s self-defense laws could be improved would be by copying a unique law that apparently exists only in the State of Washington, RCW 9A.16.110, which requires the state to reimburse the attorney’s fees of most defendants who prevail in a defense of self-defense in a criminal case.  WVCDL plans to propose future legislation to reform West Virginia’s self-defense laws to incorporate both those provisions of the “Florida model” of self-defense laws lacking in our state and copy Washington’s self-defense criminal defense attorney fee-shifting statute.  This bill will be separate and apart from the slightly-revised 2012 edition of the former West Virginia Gun Owner Protection Act of 2011.
Anyone who is ever involved in a self-defense shooting–which I hope none of you ever are–will next face the prospect of a police investigation.  What you say after a shooting may very well be more important to your future than what happened before and during the attack that resulted in your need to act in self-defense.  Many potentially good cases of self-defense have been ruined by people who chose the wrong words–often a result of speaking at length during the period of extreme emotional distress following a threat to your life and the actions you took in response.

While it would not be a case of the terrible anxiety following a shooting resulting in problems, one of the many dangers that anyone who speaks to the police while under investigation may encounter is the possibility of a question being mistaken for a declarative sentence.  Consider the following clip from the movie My Counsin Vinny, in which “William Gambini” intends to say, in the form of a question, “I shot the clerk?” but the sheriff believes that William confessed, “I shot the clerk.”

Had William Gambini invoked his right to remain silent and his right to counsel, this episode would never have happened. Indeed, although there may occasionally be an exception (for which you should get specific legal advice from your attorney), I highly recommend viewing the lecture In Praise of the Fifth Amendment: Why No Criminal Suspect Should Ever Talk to the Police by Regent University law professor James Duane.

While it is impossible to imagine the actual circumstances anyone might face, here are a few good tips to follow if you are ever forced to shoot in self-defense:
    1. first, while it is impossible to predict if, where, or when anyone may ever be forced into a self-defense situation, one of the few things you can do besides making sure that any handgun you regularly carry is well-maintained and that you are fully proficient in using it is to know one or more individual attorneys you would call if you ever had to defend yourself–and thus would need legal representation. There is no shortage of attorneys out there. Some are excellent; some would make you (and many of their fellow members of the Bar) wonder how they ever got in, much less through, law school, or passed a bar exam; and many are average. If they’re like me in my private law practice, a good attorney will give you a free initial consultation in which he or she will give you an outline of the law and general advice to follow if you ever had to defend yourself and face the investigation that will follow, and conclude by expressing an optimistic hope that you will never need his/her services. At a bare minimum, you need to know who to call; more importantly, you need to know who will take your call and come to you as quickly as possible “after hours,” as criminals (and the corresponding incidence of self-defense actions) do not keep bankers’ hours.
    2. Self-defense is not an accident; self-defense is an intentional act. Self-defense is also not something for which you apologize.  People apologize for wrongdoing.  A criminal apologizes; his victim does not.  As Dan Hawes, an attorney in Virginia, said on the forum, a person who was forced to shoot in self-defense should be able to truthfully testify, “You bet I shot him, you’re dern-tootin’ I meant to kill him; I was right to do so, and if I had it to do over again, I’d do exactly the same thing, only a little faster. I had a reasonably held, good faith belief, that I, or another innocent person, was faced with the imminent threat of a serious bodily injury, and/or I was stopping a serious felony (rape, robbery, murder, arson, burglary) in progress. What I did was necessary, right and proper, and I thank God I had the presence of mind to be prepared for the eventuality.”  That is the statement of an innocent victim who was forced to shoot in self-defense. Apologies or claims that a person really didn;t mean to shoot (or otherwise claiming the shooting was not intentional) at any point in time make an otherwise innocent victim look like a criminal, talk like a criminal, quack like a criminal, and . . . well, if you can’t figure out where this goes by now, you never will.
    3. If possible, call 911, report that there has been [whatever crime was attempted against you] and a shooting, give your location, and request the police and a number of ambulances equal to the number of people you believe are injured.  Do not stay on the phone or discuss the circumstances further.  All 911 calls are recorded and may not only be used against you at trial but also released to the media under the West Virginia Freedom of Information Act.  There is simply no good reason to ever give a more detailed statement on a 911 call; a proper 911 call to report a shooting in self-defense will be sufficiently brief and boring to prevent the local TV stations from playing it for the next 2 or 3 days on every newscast with your name and mugshot on the screen while the audio is played.
    4. Unless you are holding an assailant at gunpoint in order to protect yourself and avoid the potential need to shoot again, reholster your weapon.  The police responding to the scene of a shooting call will already be on edge and it should not be compounded by unnecessarily keeping weapons drawn.
    5. When the police begin to question you, you should identify yourself, state the offense that was committed against you or other threat you faced, state that you were in fear of your life, and then (this next part is most crucial) say “I would like to cooperate further but I am in no condition to do so right now.  I am specifically invoking my right to remain silent and my right to an attorney.  I would ask that you extend me the same courtesy you would a fellow officer who was in my position.”  The middle sentence in that quote is specific language that the courts generally require a person to say aloud in order to receive the full protection of your constitutional rights to remain silent (which, ironically, you cannot invoke simply by sitting silent) and to have an attorney present.  The police are only required to stop questioning you if you clearly and unequivocally state that you want an attorney. Muddled statements such as “maybe I should have a lawyer” are not enough to end an interrogation and suppress any statements the police might elicit from you after an ineffective attempt at invoking your rights.  The first and last sentences are designed to put the officer(s) with whom you’re dealing at some personal ease with your position.  Whether the officer wants to admit it or not, this is exactly what he or she would do if he or she had to shoot someone on or off duty.  In those cases where a police officer is forced to shoot, the officer will take time to cool off, collect his or her thoughts, consult with an attorney before submitting to any questioning about what happened, and truthfully answer the inevitable questions after taking these important steps to make sure that he or she says exactly what happened, as it happened, and not misspeak due to the stress and anxiety that accompany a life-threatening incident and the actions he or she was forced to take in response.  Remember the clip from My Cousin Vinny above?
    6. To reinforce the points above about how a person who has been forced to shoot in self-defense is in no condition to give an immediate, detailed statement to the police, the life-threating situation and subsequent shooting in self-defense will alter the person’s senses and perceptions of what happened before, during, and after the shooting.  His or her heart rate will likely skyrocket and remain elevated for days.  Perceptions of time, distance, and space will be distorted. The person will most likely have developed tunnel vision of his or her surroundings as he or she was threatened and forced to act in self-defense. The person will likely have at least some short-term hearing loss.
    7. What if you properly invoke your right to remain silent and your right to an attorney but the police ignore you, attempt to entice you to waive your rights, or attempt to badger you into talking when you don’t want to?  Reassert your right to remain silent and your right to counsel and shut up.  While statements the police extract from a criminal suspect in violation of the suspect’s Fifth Amendment rights will be suppressed in court, one of the circumstances in which an otherwise inadmissible statement by the defendant can be admitted in court is for the purpose of cross-examining a defendant who takes the stand (a certainty in self-defense cases).  Although you may be deeply shaken by everything that has happened, it is more important at this point than at any other that you stand your ground and remain silent.  Further pressure from the police is likely indicative of desperation on their part.  Worse (see Paragraph 12 below), might your case be one of those exceptional cases where your misfortune has been compounded by the “bad guy” being a “good guy” in the eyes of the police and/or the local courthouse cabal?  You likely won’t know their motivations at this point, but stand your ground and keep your mouth shut except when repeating your assertions of your right to remain silent and your right to counsel.
    8. Except when specifically instructed by your attorney to speak, do not speak to anyone other than your attorney or your spouse (if you are married), and in both cases, only in private settings.  With very limited exceptions (which you should consult your attorney for specific advice for your case), anyone else to whom you say anything about an incident may be compelled to testify against you. If you are arrested and have to spend time in jail, the jail will be crawling with “jailhouse informants” who either on their own or with guidance from the police will try to get you to talk about your case–and hopefully make incriminating statements they can take to the prosecutor and trade for leniency in their cases. Fellow inmates in the jail are the last people you should be discussing anything pertaining to your case. If you are free (whether by virtue of never having been arrested or of being released on bond) and the government is “out to get you,” they will find your relatives, your friends, your acquaintances, and virtually anyone else with whom the police & prosecutor have even the slightest reason to suspect you may have communicated, and all of these people will be called to testify first before a grand jury and then at a trial.  It is crucial that if anyone (other than your spouse, and only in private) asks you to discuss the case, you should tell them that your attorney has advised you to not talk to anyone about the case and ask that person to respect your request (anyone who would not is not a true friend and should be disassociated with immediately).  It should also go without saying that you should not discuss the incident on Facebook, Twitter, online message boards, or any other electronic forum.
    9. One of the key reasons it is to a criminal defendant’s advantage to say nothing to anyone (other than your attorney, spouse, or the very few other individuals with whom you may engage in private, legally-privileged communications) is that in our legal system, most out-of-court statements (particularly by a party to a case) are generally considered “hearsay” and are generally inadmissible.  One of the key execptions is something we lawyers call a “statement against interest.”  As the Miranda warnings state, “anything you say can and will be used against you in a court of law.”  More specifically, your out-of-court statements can only be used against you.  The jury will be instructed that they may only consider your out-of-court statements to the extent they incriminate you; otherwise, they must generally disregard your out-of-court statements no matter how exculpatory they may be.  the only statements you can generally give to a jury that will help your case will be any testimony you might give in your own defense at trial.  Your out-of-court statements can be used to impeach your own testimony at trial, among other things.  Therefore, unless your lawyer has instructed you to speak, it is generally in the best interests of a defendant to say as little as possible.
    10. Of course, given the nature of self-defense, it may be advisable to speak before taking the stand in your own defense at a trial, but this must be done only with the advice of your attorney.  In most self-defense cases, the police and prosecutors make the right call, but you must be prepared to defend yourself in court if your case is one of the few in which they do not agree with you.  However, one thing you should not do is give any detailed statements to anyone other than your attorney until after you have consulted an attorney and have been advised by your attorney to speak.
    11. When dealing with your attorney in any legal matter, it is extremely important to tell the truth about everything when you are meeting with your attorney in private (where anything you say is protected by attorney-client privilege). Attorneys must know not only the good but also the bad and the ugly about your case. While attorneys can work around “bad facts,” you may very well torpedo your own case if you lie or conceal information and deprive your attorney of his or her ability to fully prepare your case to deal with those bad facts.  The last place any attorney wants to learn about some skeleton in a client’s closet is in court while the client is being cross-examined by a prosecutor about some “bad facts” the client conveniently forgot to tell the attorney early in the case.
    12. Everything above is presented in the context of a run-of-the-mill crime that required a self-defense response.  However, given that it occasionally happens, can you imagine how much more difficult the circumstances might be for you if you had the bad luck of encountering a bad guy who knows someone who knows someone at the courthouse?  How about a star athlete at a major university (see last story below)?  Or, how about the errant son of a prominent politician (as could have happened to Annandale (Fairfax County), Virginia, resident Richard Hagy 8 years ago, when Nick Joe Rahall III committed a home invasion armed robbery for which he received exceptionally lenient treatment after his father, Congressman Nick Joe Rahall II, broke House ethics rules and wrote a letter on official congressional stationery to Fairfax County Circuit Judge David Stitt, which resulted in the younger Rahall receiving a suspended sentence and avoiding prison despite a prior criminal record and the violent nature of the crime perpetrated in Fairfax County, which would have entitled the victim to shoot and kill the younger Rahall had the victim been armed)?  Obviously, if you are faced with a legitimate self-defense situation, you will probably have no clue about the identity or background of the bad guy you’re facing.

The West Virginia Citizens Defense League (WVCDL) is a nonpartisan, nonprofit, all-volunteer, grassroots organization of concerned West Virginians who support our individual right to keep and bear arms for defense of self, family, home and state, and for lawful hunting and recreational use, as protected by the state constitution and the Second Amendment of the United States Constitution. Visit:

1 Comment
Inline Feedbacks
View all comments
6 years ago

What about if the robber along with friends had you intrapped where you couldnt back up or press forward while pictures of marks the gun made to your body and victims were in the car with you.