H. B. 2564
(By Delegates Williams, Ennis, Stemple and Varner)
[Introduced January 26, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-2A-1, §61-2A-2
and §61-2A-3, all relating to the castle doctrine generally;
creating a presumption of reasonable fear of imminent peril of
death or great bodily harm when using defensive force that is
intended or likely to cause death or great bodily harm to
another and granting immunity from criminal prosecution and
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-2A-1, §61-2A-2 and
§61-2A-3, all to read as follows:
ARTICLE 2A. CASTLE DOCTRINE ACT.
§61-2A-1. Legislative findings.
(a) The Legislature hereby finds that it is proper for law-abiding people to protect themselves, their families, and
others from intruders and attackers without fear of prosecution or
civil action for acting in defense of themselves and others.
(b) The Legislature finds that the castle doctrine is a
common-law doctrine of ancient origins which declares that a
person's home is his or her castle.
(c) The Legislature finds that Section 22 of Article III of
the West Virginia Constitution guarantees the right of the people
to bear arms in defense of themselves.
(d) The Legislature finds that the persons residing in or
visiting this state have a right to expect to remain unmolested
within their homes or vehicles.
(e) The Legislature finds and declares that no person or
victim of crime should be required to surrender his or her personal
safety to a criminal, nor should a person or victim be required to
needlessly retreat in the face of intrusion or attack.
§61-2A-2. Home protection; use of deadly force; presumption of
fear of death or great bodily harm.
(a) A person is presumed to have held a reasonable fear of
imminent peril of death or great bodily harm to himself or herself
or another when using defensive force that is intended or likely to
cause death or great bodily harm to another if:
(1) The person against whom the defensive force was used was
in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied
vehicle, or if that person had removed or was attempting to remove
another against that person's will from the dwelling, residence or
occupied vehicle; and
(2) The person who uses defensive force knew or had reason to
believe that an unlawful and forcible entry or unlawful and
forcible act was occurring or had occurred.
(b) The presumption set forth in subsection (a) of this
section does not apply if:
(1) The person against whom the defensive force is used has
the right to be in or is a lawful resident of the dwelling,
residence or vehicle, such as an owner, lessee, or titleholder, and
there is not an injunction for protection from domestic violence or
a written pretrial supervision order of no contact against that
(2) The person or persons sought to be removed is a child or
grandchild, or is otherwise in the lawful custody or under the
lawful guardianship of, the person against whom the defensive force
is used; or
(3) The person who uses defensive force is engaged in an
unlawful activity or is using the dwelling, residence, or occupied
vehicle to further an unlawful activity; or
(4) The person against whom the defensive force is used is a
law-enforcement officer as defined in section eleven-a, article two-a, chapter twenty-nine of the code, who enters or attempts to
enter a dwelling, residence or vehicle in the performance of his or
her official duties and the officer identified himself or herself
in accordance with any applicable law or the person using force
knew or reasonably should have known that the person entering or
attempting to enter was a law-enforcement officer.
(c) A person who is not engaged in an unlawful activity and
who is attacked in any other place where he or she has a right to
be has no duty to retreat and has the right to stand his or her
ground and meet force with force, including deadly force if he or
she reasonably believes it is necessary to do so to prevent death
or great bodily harm to himself or herself or another or to prevent
the commission of a forcible felony.
(d) A person who unlawfully and by force enters or attempts to
enter a person's dwelling, residence, or occupied vehicle is
presumed to be doing so with the intent to commit an unlawful act
involving force or violence.
(e) As used in this section, the term: (1) "Dwelling" means
a building or conveyance of any kind, including any attached porch,
whether the building or conveyance is temporary or permanent,
mobile or immobile, which has a roof over it, including a tent, and
is designed to be occupied by people lodging therein at night.
(2) "Residence" means a dwelling in which a person resides
either temporarily or permanently or is visiting as an invited guest.
(3) "Vehicle" means a conveyance of any kind, whether or not
motorized, which is designed to transport people or property.
§61-2A-3. Immunity from criminal prosecution and civil action.
(a) As used in this section, the term "criminal prosecution"
includes arresting, detaining in custody and charging or
prosecuting the defendant.
(b) A person who uses force as permitted in section two of
this article is justified in using such force and is immune from
criminal prosecution and civil action for the use of such force,
(1) The person against whom force was used was a
law-enforcement officer, as defined in section eleven-a, article
two-a, chapter twenty-nine of the code of West Virginia, who was
acting in the performance of his or her official duties and the
officer identified himself or herself in accordance with any
(2) The person using force knew or reasonably should have
known that the person was a law-enforcement officer.
(c) A law-enforcement agency may use standard procedures for
investigating the use of force as described in subsection (b) of
this section, but the agency may not arrest the person for using
force unless it determines that there is probable cause that the
force that was used was unlawful.
(d) The court shall award reasonable attorney's fees, court
costs, compensation for loss of income, and all expenses incurred
by the defendant in defense of any civil action brought by a
plaintiff if the court finds that the defendant is immune from
prosecution as provided in subsection (b) of this section.
NOTE: The purpose of this bill is to authorize the use of
force, including deadly force, against an intruder or attacker in
a dwelling, residence, or vehicle under certain circumstances.
This article is new; therefore, strike-throughs and
underscoring have been omitted.