Zombie-Killing: Legal Implications In Virginia

Posted on October 31st, 2012, by Benjamin Griffitts in Criminal Defense. 1 Comment

ZombieThe Zombie Apocalypse. We know its coming. We just don’t know if we can stop it. Fictionalized accounts of the Zombie Apocalypse have been presented in TV shows like The Walking Dead, movies like 28 Days Later, Night of the Living Dead, or my personal favorite, Shaun of the Dead. When the Zombie Apocalypse actually arrives, the reality will be much different. This is not a blog about how to prepare for the Zombie Apocalypse. For that, simply go through the Center for Disease Control’s web page dedicated to Zombie Preparedness.

The truth is, when the zombies begin to attack, we will still have a government. We will have police, courts, judges and juries. There will still be the rule of law—for a while, at least. So the question is, what legal ramifications exist for the average Virginia resident who fights back against the zombies, and kills (or more accurately, re-kills) one (or more)?

First, how do you even kill a zombie? Regardless of whether the zombie was created by voodoo or a deadly disease, the consensus is, you have to destroy the brain.

The fact that you have to kill the zombie’s brain to kill the zombie leads to the all-important question: is an undead zombie legally dead or alive? If a zombie is alive, then does the zombie have the same basic Constitutional rights as any other person in the United States? If so, then killing a zombie could be considered a homicide. When is someone declared dead? Is a person dead when their heart or lungs no longer function on their own? Then a zombie is dead. Is it when the brain ceases function and the person is in a “permanent vegetative state”? Now we’re in gray area. A zombie’s brain is what keeps the zombie going, hence the need to destroy the brain to kill the zombie. But is the brain functioning independently? Would a zombie with a brain functioning solely through mystical spells be akin to a person kept breathing through a respirator? Or, if it is a virus or other pathogen animating the body through the brain, is the zombie body just a vessel for the virus?

In Virginia, homicides can be classified as murder or manslaughter. Murder is broken down into three categories, namely capital murder (Virginia Code § 18.2-31), first degree and second degree murder (Virginia Code § 18.2-32).

  • Capital murder is the “willful, deliberate and premeditated” killing of another in conjunction with a variety of acts or targets. “Willful, deliberate and premeditated” simply means having the intent to kill someone prior to killing that person. Capital murder is punishable by life in prison or the death penalty.
  • First degree murder is a malicious killing of another person under a second certain defined set of circumstances. First degree murder can be punished by life in prison.
  • Second degree murder is the malicious killing of another person, or the accidental killing of a person while committing a felony. Second degree murder carries a maximum penalty of forty years incarceration.

The “malice” required for first or second degree murder amounts to  intentionally committing a wrongful act to another person without a legal justification and when in your right mind.

Manslaughter, by contrast to murder, can be voluntary (intentional killing in the heat of passion or in mutual combat), or involuntary (unintentional killing that resulted from conduct that displays a lack of regard for human life). Manslaughter generally carries a ten year maximum prison sentence, although aggravated manslaughter can result in a longer period of incarceration.

Obviously, if zombies are considered people, then killing them might amount to murder or manslaughter, depending upon the circumstances.

But what if the zombie is considered a dead body? In that case, a person utilizing any of the brain destruction methods I linked to above could be considered guilty of defiling a dead body (Virginia Code § 18.2-126(B)), a felony that carries a maximum punishment of five years of prison. Defilement has to be willful and intentional.

In reality, all the legal theory in the world will go out the window when one is confronted with an actual zombie attack. Zombies are by their very natures constant and real threats to our own lives, as well as the lives of our loved ones. If a zombie is alive, then self-defense becomes a legitimate defense, in my opinion, to almost any form of zombie-killing. Refer to my posting, Self-Defense Vs. Assault And Battery In Virginia, for a longer discussion about self-defense in the criminal justice context.

The bottom line is, whether a zombie is classified as living or dead, or whether the undead will require a separate classification altogether, one has to weigh the possible consequences of criminal prosecution against the consequences of not fighting back. Your life-your brain-may depend on it.

Oh, and one more thing: have a safe and happy Halloween!

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Ben Griffitts is a senior associate attorney at Livesay & Myers. An attorney since 2004, he has years of experience defending clients on criminal charges in Northern Virginia—from serious felonies, violent crimes, and drug charges to traffic offenses and misdemeanors. As an experienced personal injury attorney, he has also handled every type of automobile accident case in Virginia.


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