dissenting.
Concluding that the trial court did not err in refusing an instruction on defending personal property, I dissent. I would affirm the conviction of brandishing a firearm.
*780The victim was entitled to repossess the defendant’s car. Under no circumstances was it reasonable for this defendant to brandish a rifle to repel this repossession. Even if the victim had been a trespasser, the defendant was not entitled to assault him. “For a mere trespass upon land, the owner has no right to assault the trespasser with a deadly weapon....” Montgomery v. Commonwealth, 98 Va. 840, 844, 36 S.E. 371, 373 (1900).
Pike v. Commonwealth, 24 Va.App. 373, 482 S.E.2d 839 (1997), controls this case. In Pike, the trial court concluded that the defendant acted unreasonably when he produced a shotgun to defend his land. This Court held “[t]he brandishing of the shotgun was disproportionate to any threat posed by the unarmed cable workers, irrespective of the legality of Cablevision’s conduct.” Id. at 376, 482 S.E.2d at 840.
The majority distinguishes between using deadly force, which it would not permit, and threatening to use deadly force, which it would permit. Applied to these facts, I do not feel the distinction is realistic, practical, or wise. Permitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat arrayed against him by the defendant. A person threatened with deadly force has the right to defend his person. The victim had no way of knowing the gun was empty, and his right to use deadly force is determined as the situation appeared to him. Once the victim defends with deadly force, the person who originally threatened deadly force becomes justified in responding to the victim’s deadly force with his own deadly force.
I do not believe precedent allows brandishing a firearm to be lawful resistance to repossession of personal property. Therefore, I find the trial court properly refused the instruction that would have permitted such an unreasonable response to protect personal property.