The 37-year-old man was waiting in line at a Virginia Beach 7-Eleven, staring into his strawberry-melon Big Gulp, when he saw the red dot appear on the side of the cup. It was around 2 a.m., July 25, 2019.
His eyes followed the dot to two hooded men pointing guns at him and the clerk. He tried to stay calm as the clerk begged with the men, one shoveling cash out of the register. The 37-year-old sipped his drink as he felt for his gun, holstered underneath his T-shirt. He pulled out a 9 mm, shooting and wounding one robber in the neck. He shot the second twice in the torso, killing him.
Nothing has been the same since.
Virginia gun owners often cite self-defense for wanting to own a firearm. However, several Hampton Roads legal experts said gun owners are often mistaken in when they can use deadly force. Killing someone in self-defense can be mentally traumatic and bring murder charges more often than the public may expect.
“You may be right. But more often than not, you were going to be wrong,” said Norfolk Commonwealth’s Attorney Ramin Fatehi. “And if you were wrong, then you would have killed somebody illegally. And you will almost certainly face trial and prison.”
While the 7-Eleven shooter wasn’t charged, he has dealt with the trauma of that night for the past five years and agreed to speak to The Virginian-Pilot on the condition of anonymity because of the stigma he feels.
In Virginia, people have the right to defend themselves under limited conditions. They must later prove that any reasonable person in their situation would have been fearful of themselves — or someone near them — dying or suffering “great bodily harm.”
The use of force also has to be proportional. A person can’t use deadly force against nonlethal force. For example, you can punch someone you fear is about to punch you. But you can’t shoot them.
A self-defense claim is judged on the standards of outside observers, such as the testimony of witnesses. When gun users go to court — when law enforcement deems that there wasn’t immediate, clear evidence of justified self-defense — jurors are told to consider if a defendant was “with” fault, meaning they played a role in provoking the “fight” or “difficulty” that led to the shooting, or “without” fault.
Virginia “model jury” instructions state that defendants who are “with fault” — before resorting to shooting — must “retreat to wall,” get as far away as physically and as safely as possible “in a good faith attempt to abandon the fight.”
Deadly force also can’t be used to defend property alone.
“A lot of people think that, ‘Hey, if a burglar breaks into my house, I’m automatically entitled to kill that person,’” Fatehi said. “That’s simply not law.”
Also, the threat must be immediate.
On June 4, 2021, Calvin Anthony Durham Jr., 37, entered the Kappatal Cuts on Brambleton Avenue in Norfolk and started a fight with Nelson Luckett, who was 44. They argued, fought, pulled out guns and Luckett eventually took Durham’s gun and shot and killed him with it.
“Mr. Durham had disengaged and was no longer fighting or doing anything to present an immediate physical threat to Mr. Nelson Luckett,” Fatehi said.
Durham may have gone to the barbershop to start a fight, but that did not give Luckett the right to kill him, Fatehi said. Luckett was found guilty of manslaughter and was sentenced to nine years in prison, with four years suspended on court-mandated conditions.
“I’m willing to accept that he does, and did, believe that he was doing the legally correct thing,” Fatehi said. “He was not right.”
Even when a person is acquitted, trials can take years to resolve.
“I think that going through a trial as a defendant or as a client is probably one of the most stressful things that someone can experience,” said Mario Lorello, a defense attorney for the Norfolk firm Zoby & Broccoletti, P.C.
Lorello has successfully represented clients who’ve claimed self-dense and witnessed the emotional toll the court process takes.
“How a police department or how a Commonwealth Attorney’s office or a different attorney’s office view self-defense and which cases should or should not go to trial is going to vary from city to city to city,” he said.
In the 7-Eleven case, the shooter did everything right after he shot the gunmen.
He immediately approached the men, moved their weapons out of reach, checked on the wounded survivor and told the clerk to call the police. He helped a woman who had fallen and instructed other customers to go outside. He removed the bullets from his gun and made sure the clerk witnessed every step.
When police arrived, the woman pleaded with them not to arrest the man who’d saved her life.
The man said he’d studied best practices and trained with firearms and carried a concealed carry permit for years. He was released from custody that day but was emotionally hobbled for years.
“I couldn’t think clear for crap, for crap,” he said.
He recalled, for example, when he ordered the wrong part for his vehicle and couldn’t return it; it cost him $1,100. Everywhere he went, he said, people either called him a hero or disapproved of what he’d done; he began to feel that people only tied him to the event. He was sure his co-workers at the medical transport business where he worked heard about the incident.
So, he stopped going to work, lost his job and his relationship with a girlfriend suffered. He doesn’t know if the relationship fell apart because he’d killed someone or if his behavioral changes drove her away.
“You’re never going to be the same after that. I’ve even considered, like in my next relationship that I have, do you bring that up?”
Only recently he’s begun to feel more settled. He doesn’t regret what he did; he’s a staunch supporter of the right to bear arms and knows he protected himself legally.
“I’ve got the right to defend.”
Colin Warren-Hicks, 919-818-8139, colin.warrenhicks@virginiamedia.com
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