H. B. 2456

(By Delegates Faircloth, Shaver,
Shelton and Stemple)
[Introduced January 20, 2003; 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:

§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 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 does not apply to a tenant or leaseholder of property as against the record title holder of the same property or vice versa; nor does 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" does 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, is not liable for any civil damages. Nor may 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.