Illegality Defense Precludes Tort Recovery for Strict-Liability Felon-in-Possession Injuries
Introduction
In Harris v. Howard, decided April 3, 2025 by the Supreme Court of Virginia, the Court confronted whether a detained, convicted felon (Dennis Christopher Howard) could recover tort damages for injuries self-inflicted with a firearm he possessed in violation of Virginia’s felon-in-possession statute (Code § 18.2-308.2). Howard alleged gross negligence by Deputy Setlock and respondeat superior liability of Sheriff Harris, while defendants invoked summary judgment on two grounds: (1) Setlock’s conduct did not rise to gross negligence as a matter of law; and (2) the illegality defense barred recovery for injuries resulting from one’s own criminal act. The Fourth Circuit reversed the trial court on both issues, but the Supreme Court of Virginia granted review to clarify the scope of the illegality defense when applied to a strict-liability statutory offense.
Summary of the Judgment
The Supreme Court of Virginia held that Howard’s tort claim was barred by the illegality defense because his injuries were proximately caused by his own illegal act—knowing and intentional possession of a firearm and ammunition as a convicted felon under Code § 18.2-308.2. The Court rejected the Court of Appeals’ reasoning that an “unsound mind” allegation might negate mens rea and thus avoid the bar. Since the statute imposes strict liability beyond knowledge of possession, a mental-capacity exception did not apply. The judgment of the Court of Appeals was reversed and final judgment entered for defendants.
Analysis
Precedents Cited
- Wackwitz v. Roy, 244 Va. 60 (1992): recognized that courts will not allow recovery when injuries stem from one’s own illegal act and carved out a narrow “unsound mind” exception for common-law suicide (requiring sound mind).
- Zysk v. Zysk, 239 Va. 32 (1990) and Miller v. Bennett, 190 Va. 162 (1949): affirmed the broad principle barring tort recovery for injuries flowing from criminal conduct.
- Johnson v. Campbell, 258 Va. 453 (1999): emphasized that the illegality defense requires a causal nexus between the illegal act and claimed injuries.
- Armstrong v. Commonwealth, 263 Va. 573 (2002): interpreted Code § 18.2-308.2 as reflecting legislative judgment that felons are unfit to possess firearms.
- Branch v. Commonwealth, 42 Va. App. 665 (2004): held that Code § 18.2-308.2 is a strict-liability offense lacking additional mens rea elements beyond knowing possession.
- Plunkett v. Supreme Conclave, I. O. H., 105 Va. 643 (1906) and Blackstone’s Commentaries: defined common-law suicide as requiring sound mind, thus illustrating when mental-capacity exceptions apply.
Legal Reasoning
The Court began with the settled rule that “courts will not assist the participant in an illegal act who seeks to profit from the act’s commission.” Under Johnson v. Campbell, the illegal act must also proximately cause the injury. Here, Howard conceded—and the record showed—that he knowingly and intentionally possessed a handgun and ammunition in violation of Code § 18.2-308.2(A). He further conceded that this violation proximately caused his self-inflicted gunshot injury.
The Court of Appeals attempted to import the “unsound mind” exception from Wackwitz (applied to common-law suicide) by positing that a factfinder might find Howard lacked the mens rea for unlawful possession. The Supreme Court rejected this by observing that Code § 18.2-308.2 imposes strict liability: once knowing possession is proved, no further mental-state element (e.g., sound mind) is required. Thus, unlike the common-law crime of suicide, the felony-possession statute contains no mental‐capacity element that could be negated by unsoundness of mind. The unsound-mind allegation is therefore irrelevant to whether Howard violated the statute.
Because the illegality defense applies unqualifiedly to injuries caused by strict-liability criminal violations, Howard’s tort claim was barred as a matter of law. The Court thus reversed the Court of Appeals and reinstated summary judgment for the defendants.
Impact
Harris v. Howard clarifies that Virginia’s illegality defense bars tort recovery for injuries resulting from strict-liability criminal statutes, even if the plaintiff alleges unsound mind or lacks intent to violate the law. Trial and appellate courts should:
- Recognize that unsound-mind allegations do not negate liability under a statute devoid of mens rea beyond knowing possession.
- Apply the illegality bar whenever a plaintiff’s injuries are proximately caused by his own strict-liability crime.
- Distinguish statutes requiring specific mental elements (where an unsound-mind exception may apply) from strict-liability offenses (where it does not).
Complex Concepts Simplified
Illegality Defense: A legal doctrine preventing recovery in a tort action when the plaintiff’s own illegal act caused their injury.
Strict Liability Offense: A crime that does not require proof of a guilty mind (mens rea) beyond the act itself—in this case, simply knowing possession of a firearm by a felon.
Mens Rea vs. Unsound Mind Exception: Some crimes (e.g., common-law suicide) demand proof that the actor was of sound mind. If a plaintiff claims unsound mind, the court must determine whether that negates an essential element of the crime. In strict-liability statutes, however, unsound mind is irrelevant because no additional mental element is required.
Conclusion
Harris v. Howard establishes that where a statute prohibiting felon-in-possession is strict liability, a self-inflicted injury resulting from such possession is barred from tort recovery by the illegality defense. The ruling underscores the boundary between tort law and criminal policy: litigants cannot recover for harms stemming from their own breach of a legislative prohibition that reflects a categorical judgment of unfitness. By rejecting the unsound-mind exception in this context, the Supreme Court of Virginia reaffirms the primacy of statutory text and legislative intent in defining the limits of civil liability.
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