By Veronica Gonzalez

The Virginian-Pilot

February 12, 2011

SUFFOLK

Thinking that a man was trying to steal something from his yard, a retired police officer fired twice at the man's pickup, hitting it once. One of the bullets lodged in the man's head.

The city's top prosecutor determined that the shooting was justified, saying Charles Duck feared for his life and his wife's when the man dived into his pickup. Duck said he couldn't see the man's hands, and what if there had been a gun in the truck?

The case illustrates the complexity of distinguishing what is self-defense and what is illegal.

The Virginian-Pilot reviewed reports of several similar cases in recent years. In most, prosecutors did not file charges against people who shot intruders. When prosecutors do file charges, the cases go to juries that often are sympathetic to the shooters.

"You can instruct juries all you want to on what the law is, but juries have the ultimate power to acquit for any reason they want," said Ronald Bacigal, a professor at the University of Richmond's law school.

In Virginia, prosecutors say, citizens can use deadly force to defend their lives, but not solely to defend property.

For years, including this year, the General Assembly has considered proposals to make the so-called "castle doctrine" part of state law, which would extend more protection to those who defend themselves from intruders.

Del. Bill Cleaveland, a Botetourt County Republican, who introduced the proposal this year, said it's important for people to know they can use deadly force when their lives are threatened because the police won't always be there.

"When you codify the case law as it is now," he said, "it has an extra exclamation point, that, 'This is recognized in Virginia.' "

Still, for practical purposes, the castle doctrine already is in effect when cases involve home intruders.

In Duck's case, another factor affecting Suffolk Commonwealth's Attorney Phil Ferguson's decision was that Duck had recently gotten out of surgery and was having trouble walking, which made him more vulnerable.

Ferguson stated in his ruling that Duck stopped firing at the pickup's cab when the man started driving away, and instead fired at the tires to try to stop the truck.

Had the man complied with Duck's orders to lie down in front of the truck, there would have been no shooting, he said.

This isn't the first time Ferguson has faced a thorny self-defense issue.

In 2009, he decided not to charge a store owner in Whaleyville who shot and killed a burglar who had broken in to his store, J&L Food Mart.

Ferguson didn't prosecute the store's owner, James H. Durden Jr., he said, because the store owner believed his life was in danger.

"The shooting in this case and Whaleyville had nothing to do with property," Ferguson said. "The shootings occurred because they feared their lives were in danger."

Most other cases reviewed by The Pilot in which shooters weren't charged dealt with home intruders or store robbers.

In 1994, for example, a man confronted two people trying to break into a Virginia Beach house. He killed one of them after one fired at him. He wasn't charged.

In 1999, Clark Stuart, a Navy SEAL, was not charged because it was determined that he was acting in self-

defense when he shot and killed a retired Marine Corps officer, Edward E. Vaught.

Vaught had come to his Virginia Beach house unarmed in the middle of the night. Vaught shouted and banged on the front door before kicking it in to enter the house. Stuart's wife and child were also inside.

In 2007, a burglar trying to enter a ground-floor apartment in Norfolk was shot to death. The resident was not charged in the shooting of Keith Foreman, who had convictions for voluntary manslaughter and another break-in.

In 2008, a man trying to rob a Virginia Beach pizza and pasta restaurant was shot to death. Instead of taking money from the cash register as the shop owner insisted, the robber pressed the owner to open the safe, where he had hidden a gun. When owner Ferdinando Abbondante opened the safe, he loaded his gun. The robber shot at him, missing, and Abbondante fired back and killed him.

Ultimately, prosecutors review cases after police investigations are completed and decide how to proceed.

Still, someone can't use deadly force merely to protect property, said Virginia Beach Commonwealth's Attorney Harvey Bryant.

"If you look out your front door and someone is taking the tires off your car, you can't shoot them," he said.

"We do consider in our society that your home is your castle," Harvey said. "If somebody has broken through the castle walls and come in aggressively, you're entitled to defend yourself."

Harvey said he couldn't second-guess Ferguson's decision because each case is "fact-specific." But he cautioned homeowners against using Duck's case as carte blanche to shoot trespassers.

"I don't think citizens in Virginia Beach should take this case in Suffolk as a green light for them to shoot people in defense of their property," he said.

Last year, Richmond Commonwealth's Attorney Mike Herring charged a man with second-degree murder in the killing of a burglar who was wearing a mask while he tried to steal a car.

A jury convicted him of manslaughter. It declined to impose any jail time or a fine.

Whenever Herring looks at a case, he said, he tries to answer this question, Was the intruder there to steal something, or was he there to harm the homeowner?

"If they are there to harm the defendant, then the defendant is entitled to use reasonable force to protect and repel," he said. "If the so-called victim is on the property to steal property, then the defendant, if you would, is not entitled to use lethal force."

Herring did get a conviction when he prosecuted a homeowner who shot an intruder on his property.

An intruder had climbed an 8-foot privacy fence and was trying to disable motion lights when the homeowner spotted him.

He shot the intruder with a shotgun. A trail of birdshot indicated to Herring that the homeowner shot at the intruder while he was trying to get away.

The homeowner pleaded guilty to reckless discharge of a firearm, he said.

In another case from three years ago, Herring tried to present charges against a store owner who shot and killed a robber. Grand jurors decided not to indict the store owner.

"You had a lot of people who thought the clerk was justified in the shooting," Herring said.

Others say that people who trespass on somebody else's property are taking their chances.

Philip Van Cleave, president of Virginia Citizens Defense League Inc., said people confronted with that situation may not have the time to figure out what someone is doing.

"The truth is, when a criminal gets on to somebody's property like that, his life is in serious danger. But he's the one putting his own life in danger," he said. "Juries don't tend to be sympathetic to someone like that."

Pilot researcher Maureen Watts contributed to this report.

Veronica Gonzalez, (757) 222-5208, veronica.gonzalez@pilotonline.com

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