AN OVERT ACT may pursue his adversary until he has freed himself from all danger.” 4 Still, the Court evidently was concerned to maintain an element of objectivity as to whether an act of self-defense was necessary. Instead of a requirement to retreat, what now satisfi ed the need for an objective criterion a jury could see and judge was simple: “al-though it is lawful for one to deprive of life another meditating his life, yet he must wait till some overt act is done in pursuance of the meditation.” 5 In other words, although you need not try to escape your attacker, before you could defend yourself with lethal force, your attacker must have actually done some-thing, openly and visibly, that caused you to reasonably fear that grave harm was immi-nent. The overt act requirement has persisted to the present day as an element of the affi r-mative defense of self-defense. 6 Analytically, however, it is not a distinct element, but rather a little evidentiary insurance calculat-ed to see to it that the substantive elements really are met. Did you reasonably believe an attack was imminent? Was it really necessary to defend yourself? In Virginia, only if your attacker made an overt act. This insurance is only so good, however. What is open may not be unambiguous, and what is visible is not necessarily clear. The Virginia Supreme Court has not often had occasion to consider what constitutes an “overt act,” but the few decisions it has made refl ect the inherent indeterminacy of the term. For instance, the Court decided in Yarborough v. Commonwealth that reaching during a drunken fi ght for a concealed knife which the defendant knew was there did not constitute an overt act, whereas in Commonwealth v. Cary it decided that merely walking toward the defendant, whom the deceased had pre-viously assaulted, and shouting threats did— notwithstanding the fact that the Court had already considered this precise fact pattern seventy years earlier and reached the opposite conclusion. 7 Even so, one expects that most cases will be more cut and dried than the “close calls” that end up on appellate review. Reasonable minds may differ as to whether walking toward someone and shouting threats con-stitutes an overt act indicating an imminent assault, but surely taking only a single step, for instance, would not be enough. www.vsb.org The outcome of Commonwealth v. Edington , tried in Norfolk Circuit Court in 2016, suggests otherwise. The case grew out of a tragic night in June 2014, when Norfolk Police Offi cer Michael Edington responded to a domestic violence call at the home of David Latham. When he arrived, he found Latham standing at the top of the stairs of the front porch, holding a knife at his side. Family members stood about nearby. 8 Latham was mentally ill and his mother testifi ed at trial that he was suffering a psychotic ep-isode. Edington testifi ed he did not know Latham had a mental illness before arriving at the house. 9 He took a position on the front lawn, pulled his gun, and shouted to Latham to drop the knife. According to Edington, Latham shouted threats in response. Other offi cers heard only mumbling. 10 Edington tes-tifi ed that after a few tense moments, Latham “made a small sidestep,” and Edington fi red. 11 Two years later, at the conclusion of Edington’s trial for voluntary manslaughter, the instruction was put to the members of the jury: “If you fi nd that: 1) the defendant actually and reasonably feared that he or another person was in imminent danger of death or great bodily harm at the hands of David Latham; and 2) David Latham made an overt act which the defendant perceived to signal his intent to infl ict death or great bodily harm; and 3) [the defendant] used no more force . . . than was reasonably necessary . . . THEN the killing was in self-defense, and you shall fi nd the defendant not guilty.” 12 After deliberating for eleven hours, that is just what they did. 13 In other words, although you need not try to escape your attacker, before you could defend yourself with lethal force, your attacker must have actually done something, openly and visibly, that caused you to reasonably fear that grave harm was imminent. How could the shuffl e of a foot be an overt act indicating an impending attack? The defense’s case in Edington is instruc-tive. Norfolk Police Sergeant Jonathan Puckett, a fi rearms instructor, testifi ed that Norfolk police offi cers are trained in the SPEAR (Spontaneous Protection Enabling Accelerated Response) System, which teach-CRIMINAL LAW SECTION | Vol. 68 | August 2019 | VIRGINIA LAWYER 33