AN OVERT ACT es practitioners to turn their natural startle response into a quick defense. 14 The instructor also testifi ed that “we would teach . . . that an attack from an edged weapon . . . starts some-where else in the body. . . . [W]e have to push off the ground to start movements through-out the body. . . . So we would expect offi cers to be constantly looking at a suspect in front of them and then see how that attack is going to come. It would typically come from a push off the ground by the feet.” 15 Sergeant Puckett testifi ed that offi cers are taught to consider the totality of the Who determines what the deceased’s act indicated? We cannot very well ask him, after all. A ready-made solution, which perhaps the Court has adopted (purposefully or not) is to fi nd that an act indicated the deceased’s intention to kill or gravely harm the defendant if the defendant reasonably believed it did. circumstances when gauging a threat, but that the trigger indicating an attack is imminent “could be a very small movement.” 16 In situ-ations where offi cers are necessarily one step behind, reacting to events unfolding around them, Sergeant Puckett testifi ed that the train-ing helps to keep them and innocent bystand-ers safe, since the offi cers are “seeing things that an untrained person wouldn’t see.” 17 If true, Sergeant Puckett’s testimony suggests that what is an overt act to a law enforcement offi cer trained in the SPEAR system might not be an overt act to you or me. At fi rst glance, the suggestion is nonsensical — what that requires training to see can hardly be said to be “open” or “apparent.” But consider that in each of the Supreme Court of Virginia’s overt act cases noted above, the Court took into account the particular knowledge or perspective of the defendant. In Yarborough , the Court took note of the defendant’s knowledge of the hidden knife. In Cary and Vlastaris the Court consid-ered that the defendant had previously been assaulted by the deceased. Perhaps the Court’s consideration of the perspective of defendants can help make sense of its precedents: If walking toward the defendant and shouting counts as an overt act where the deceased had previously assaulted the defendant, but reaching for a known con-cealed knife during a fi ght does not, one won-34 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION ders — would reaching for the knife count as an overt act if the deceased had previously used it to assault the defendant? If so, this would suggest that the Court’s interpretation of “an overt act” is not just ambiguous, but subjective, even relative. As backward a result as that seems, it may actual-ly be implied from the outset by the language of the overt act requirement. The requirement states that the defendant must have reason-ably feared that the deceased intended to kill or gravely injure him, and the deceased must have made an overt act “indicative of such an intention.” 18 Who determines what the deceased’s act indicated? We cannot very well ask him, after all. A ready-made solu-tion, which perhaps the Court has adopted (purposefully or not) is to fi nd that an act indicated the deceased’s intention to kill or gravely harm the defendant if the defendant reasonably believed it did. 19 Of course, this circular solution dissolves the overt act requirement entirely. Rather than an objective safeguard to an otherwise subjective standard, we have a hidden subjec-tive loop — a defendant may use self-defense if he reasonably believes that the deceased is about to kill or gravely harm him, so long as the deceased makes an overt act indicating his intent to attack, which the court will fi nd if the defendant reasonably believes that he did. None of this is to say that a wholly subjective standard is necessarily bad. It may very well be that, as Sergeant Puckett testifi ed, well-trained law enforcement offi cers can see things other people cannot see. On the other hand, little could be less overt than a subjec-tive standard dressed as an objective one, or less conducive to justice. Philip Timmerman graduated in 2016 from the University of Virginia with a JD and MA in English literature. In 2016–2017 he clerked for Judges Junius P. Fulton III and Everett A. Martin Jr. of the Norfolk Circuit Court. He currently works as an associ-ate counsel for the Board of Veterans’ Appeals in Washington, DC. www.vsb.org