H. B. 2362
(By Delegates Overington, J. Martin, Love, Riggs,
Ashley and Collins)
[Introduced February 3, 1995; 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-d, relating
to allowing persons to defend valuable property with deadly
force.
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-d, to read
as follows:
ARTICLE 7D. IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY FOR
PERSONS USING DEADLY FORCE TO PROTECT HOME AND
VALUABLE PROPERTY.
§55-7D-1. Declaration of purpose
.
The Legislature hereby declares that law-enforcement can
not always provide sufficient coverage to protect all persons
from the violence and crime that plagues this country and state.
The purpose of this article is to extend authority to
law-abiding citizens to protect themselves and their property
from crime and the consequences of crime.
§55-7D-2. Definitions.
Under the provisions of this article the following terms'
meanings are in accordance with the following:
(a) "Deadly force" means force designed or intended to cause
serious injury or death, regardless of the instrumentality used
to inflict same, in order to stop a criminal act which occurs
within a dwelling house or on the outside thereof by one
attempting to make illegal entry.
(b) "Intruder" means a person who is not lawfully on the
premises.
(c) "Lawfully on the premises" means the status of any
person who is present upon real estate or within a dwelling and
who enjoys an ownership interest in such real estate or dwelling
or is otherwise present on such property through the authority of
an owner thereof or other lawful authority as the result of: (1)
Holding the title thereto; (2) inheritance; (3) having received a gift comprised of same; (4) court order; (5) permission from an
owner or owners to be present thereon or therein; (6) holding a
valid lease or tenancy thereto 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 on the
premises" 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 on the premises" 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 deliverer or other person whose presence results
from their employment relationship to such 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 such employee's
employment status.
(d) "Nondeadly force" means force designed or intended to prevent, repel, or stop any criminal act from occurring, which
occurs 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 such discharging without striking such person, or
physically striking the person with any weapon or instrument,
including any part of one's anatomy or parcel of clothing.
(e) "Residential 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 such residential housing or shelter which is
primarily used for commercial or business purposes;
(f) "Residential occupant" means any person or persons who
are lawfully present in a residential dwelling house, or upon
real estate in which such person or persons hold an ownership
interest, including a leasehold or tenancy.
§55-7D-3. Use of deadly force justified in certain circumstances;
immunity from criminal and civil liability.
Any owner or residential occupant who, while lawfully on the premises in a residential dwelling uses deadly force, under the
principle of lawful self-defense, to repel or stop an intrusion
or the progression thereof in such dwelling by an intruder or
intruders when such intruder or intruders are bent upon causing
criminal mischief in such dwelling shall not be liable for any
civil damages. Nor shall such owner or residential occupant be
held criminally responsible for the consequences of any actions
taken in accordance with this section.
§55-7D-4. Use of nondeadly force; immunity from civil and
criminal liability.
Any private owner or residential occupant or other person
who is lawfully on the premises of particular real estate may use
nondeadly force to repel, stop, or prevent the attempt to commit,
or the progression of, any crime in which an attempt to commit is
being made or which is in progress in the presence of such
private owner or residential 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 or appears to change to
include, or does include, the intent to cause serious bodily
injury or death to the person of another.
NOTE: The purpose of this bill is to allow persons to
defend their dwellings and valuable property with deadly force
without being exposed to civil or criminal 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 and criminal liability.
Article seven-d is new; therefore, strike-throughs and
underscoring have been omitted.