H. B. 4457
(By Delegates Faircloth, Shaver,
Shelton and Stemple)
[Introduced February 11, 2002; referred to the
Committee on the Judiciary.]
A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven-e, relating to
defense of self, others and valuable property; and allowing
persons to defend family and valuable property with deadly
force; and providing for immunity from civil liability.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article seven-e, to read as
follows:
ARTICLE 7E. IMMUNITY FROM CIVIL LIABILITY FOR PERSONS USING
DEADLY FORCE TO PROTECT FAMILY, DWELLING AND VALUABLE PROPERTY.
§55-7E-1. Declaration of purpose.
The Legislature hereby finds and declares that law enforcement
cannot be everywhere all the time to protect all its citizens from
the violence and crime that plagues this country and state and that
citizens have the right to self protection, family protection,
protection of others and protection of their property.
The purpose of this article is to clarify and ensure that
law-abiding citizens are able to protect themselves, their families
and their property from crime.
§55-7E-2. Definitions.
Under the provisions of this article, the following terms
shall be defined to mean as follows:
(a) "Occupant" means any person or persons who are lawfully
present in a dwelling house, or upon real estate in which they hold
an ownership interest, including a leasehold or tenancy;
(b) "Dwelling" means a house or structure which is placed upon
land for the purpose of providing residential housing, shelter for
human habitation, or any other structure attached to the
residential housing or shelter which is primarily used for
commercial or business purposes;
(c) "Lawfully present" means the status of any person who is
present upon real estate or within a dwelling and who enjoys an
ownership interest in the real estate or dwelling or is otherwise
present on the property through the authority of an owner of the
property or other lawful authority as the result of: (1) Holding
the title to the property; (2) inheritance; (3) having received a
gift comprised of it; (4) court order; (5) permission from an owner
or owners to be present on the property; (6) holding a valid lease
or tenancy to the property whether in writing or not:
Provided,
That this article shall not apply to a tenant or leaseholder of
property as against the record title holder of the same property or
vice versa; nor shall the term "lawfully present" apply to any
person who, at one time being a tenant or leaseholder, is no longer
authorized to be on the premises due to an expired or terminated
tenancy or lease; (7) being related by blood or marriage to the
owner of such property:
Provided, however, That the term "lawfully
present" shall not include a person, whether related by blood or
marriage or not so related, who has been barred by judicial order
from being present on or about the property; (8) being a
law-enforcement officer who is investigating crime or attempting to
serve legal process; (9) being a mail delivery person or any other person whose presence results from their employment relationship to
the mail delivery or other delivery business; or, (10) being an
employee of a utility or public concern who is present to check
utilities or as the result of permissive access that exists due to
the employee's employment status.
(d) "Deadly force" means force designed or intended to cause
serious injury or death, regardless of the instrumentality used to
inflict injury or death, in order to stop criminal activity which
occurs within a dwelling house or on the outside of a dwelling
house and on the owner's property by anyone attempting an illegal
entry or illegally entering the dwelling or other property.
(e) "Nondeadly force" means force designed or intended to
repel, or stop any criminal act in progress upon or within the
boundaries of real property belonging to, or to which an occupant
of a dwelling has authority to be present upon, but is not designed
or intended to cause death or serious bodily injury. Nondeadly
force may include, but is not limited to, the discharging of a
firearm into the air or ground or in the direction of the person
whose criminal act has precipitated the discharging without
striking the person, or physically striking the person with any
weapon or instrument, including any part of one's anatomy or parcel of clothing.
§55-7E-3. Use of deadly force justified in certain circumstances;
immunity from civil liability.
Any owner or occupant who, while lawfully on the premises in
a residential dwelling uses deadly force to repel or stop an
intrusion or the progression of an intrusion in the dwelling by a
person or persons who have no right, title or interest in the
dwelling or the surrounding land whereupon the dwelling is situate,
and when the person or persons who have no right, title or interest
in the dwelling or the surrounding land whereupon the dwelling is
situate
threaten a criminal act or injury to another person in the
dwelling, shall not be liable for any civil damages. Nor shall the
owner or occupant be held criminally responsible for the
consequences of any actions taken in accordance with this section
due to self defense or protection of family members when life is
threatened.
§55-7E-4. Use of nondeadly force; immunity from civil liability.
Any private owner or occupant or other person who is lawfully
present on the premises of particular real estate may use nondeadly
force to repel or stop the progression of, any crime in which an
attempt to commit is being made or which is in progress in the presence of the private owner or occupant: Provided, That no
restriction set forth in this section may prevent the use of deadly
force by an owner or residential occupant, in the event an
intruder's or intruders' purpose changes to include, the intent to
cause serious bodily injury or death to the owner or occupant or
another person legally on the premises.
NOTE: The purpose of this bill is to allow persons to defend
their family, other persons, dwellings and valuable property with
deadly force without being exposed to civil liability. It further
allows the use of nondeadly force to repel criminal mischief that
is being committed in the presence of an owner or other person on
private property without suffering civil liability.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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