H. B. 2197
(By Delegates Schoen and Martin)
[Introduced January 16, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-10b of the Code of West Virginia,
1931, as amended, relating to assaults on a law-enforcement
officer; creating the offenses of malicious assault, by use of
a firearm and unlawful assault, by use of a firearm, on police
officers, probation officers, conservation officers, county
correctional and state correctional officers; providing
penalties upon conviction thereof; definitions; and providing
for mandatory sentences upon conviction thereof.
Be it enacted by the Legislature of West Virginia:
That §61-2-10b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10b. Malicious assault; unlawful assault; battery and
recidivism of battery; assault on police officers,
conservation officers, probation officers, humane officers, emergency medical service personnel,
firefighters, fire marshal, Division of Forestry
employees and county or state correctional
employees; penalties.
(a) Malicious assault of law-enforcement officer with a
firearm. -- Any person who maliciously, with the use of a firearm,
shoots or wounds or by any means causes bodily injury with intent
to maim, disfigure, disable or kill a police officer, probation
officer, conservation officer, county correctional employee or
state correctional employee acting in his or her official capacity
and the person committing the malicious assault knows or has reason
to know that the victim is a police officer, probation officer,
conservation officer, county correctional employee or state
correctional employee acting in his or her official capacity, is
guilty of a felony and, upon conviction thereof, shall be confined
in a correctional facility for not less than ten nor more than
twenty-five years.
(a) (b) Malicious assault. -- Any person who maliciously
shoots, stabs, cuts or wounds or by any means causes bodily injury
with intent to maim, disfigure, disable or kill a police officer,
probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or
employee, Division of Forestry employee, county correctional
employee or state correctional employee, employee of an urban mass transportation system or Public Service Commission motor carrier
inspector acting in his or her official capacity and the person
committing the malicious assault knows or has reason to know that
the victim is a police officer, probation officer, conservation
officer, humane officer, emergency medical service personnel,
firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee, state correctional
employee, employee of an urban mass transportation system or Public
Service Commission motor carrier inspector acting in his or her
official capacity is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility for not less
than three nor more than fifteen years.
(c) Unlawful assault of law-enforcement officer with a
firearm. -- Any person who unlawfully but not maliciously, with the
use of a firearm, shoots, wounds or by any means causes a police
officer, probation officer, conservation officer, county
correctional employee or state correctional employee, acting in his
or her official capacity, bodily injury with intent to maim,
disfigure, disable or kill him or her and the person committing the
unlawful assault knows or has reason to know that the victim is a
police officer, probation officer, conservation officer, county
correctional employee or state correctional employee acting in his
or her official capacity, is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility for a term of ten years.
(b) (d) Unlawful assault. -- Any person who unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes a
police officer, probation officer, conservation officer, humane
officer, emergency medical service personnel, firefighter, State
Fire Marshal or employee, Division of Forestry employee, county
correctional employee or state correctional employee, employee of
an urban mass transportation system or Public Service Commission
motor carrier inspector acting in his or her official capacity
bodily injury with intent to maim, disfigure, disable or kill him
or her and the person committing the unlawful assault knows or has
reason to know that the victim is a police officer, probation
officer, conservation officer, humane officer, emergency medical
service personnel, firefighter, State Fire Marshal or employee,
Division of Forestry employee, county correctional employee, state
correctional employee, employee of an urban mass transportation
system or Public Service Commission motor carrier inspector acting
in his or her official capacity is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than two nor more than five years.
(c) (e) Battery. -- Any person who unlawfully, knowingly and
intentionally makes physical contact of an insulting or provoking
nature with a police officer, probation officer, conservation
officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee, state correctional
employee, employee of a mass transportation system or Public
Service Commission motor carrier inspector acting in his or her
official capacity, or unlawfully and intentionally causes physical
harm to a police officer, probation officer, conservation officer,
humane officer, emergency medical service personnel, firefighter,
State Fire Marshal or employee, Division of Forestry employee,
county correctional employee, state correctional employee, employee
of an urban mass transportation system or a Public Service
Commission motor carrier inspector acting in such capacity, is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than one month nor more than twelve
months, fined the sum of five hundred dollars, or both. If any
person commits a second such offense, he or she is guilty of a
felony and, upon conviction thereof, shall be confined in a
correctional facility for not less than one year nor more than
three years or fined the sum of one thousand dollars or both fined
and confined. Any person who commits a third violation of this
subsection is guilty of a felony and, upon conviction thereof,
shall be confined in a correctional facility not less than two
years nor more than five years or fined not more than two thousand
dollars or both fined and confined.
(d) (f) Assault. -- Any person who unlawfully attempts to commit a violent injury to the person of a police officer,
probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or
employee, Division of Forestry employee, county correctional
employee, state correctional employee, employee of a mass
transportation system or Public Service Commission motor carrier
inspector acting in his or her official capacity, or unlawfully
commits an act which places a police officer, probation officer,
conservation officer, humane officer, emergency medical service
personnel, firefighter, Division of Forestry employee, county
correctional employee or state correctional employee, employee of
a mass transportation system or Public Service Commission motor
carrier inspector acting in his or her official capacity in
reasonable apprehension of immediately receiving a violent injury,
is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than twenty-four hours nor more than
six months, fined not more than two hundred dollars, or both fined
and confined.
(e) (g) For purposes of this section:
(1) "Police officer" means any person employed by the State
Police, any person employed by the state to perform law-enforcement
duties, any person employed by a political subdivision of this
state who is responsible for the prevention or detection of crime
and the enforcement of the penal, traffic or highway laws of this state or employed as a special police officer as defined in section
forty-one, article three of this chapter.
(2) "Employee of an urban mass transportation system" means
any person employed by an urban mass transportation system as such
is defined in section three, article twenty-seven, chapter eight of
this code or by a system that receives federal transit
administration funding under 49 U.S.C. §5307 or §5311.
(3) "Division of Forestry employee" means an officer, agent,
employee or servant, whether full-time or not, of the Division of
Forestry.
(4) "Firearm" means any instrument which will, or is designed
to, or may readily be converted to, expel a projectile by the
action of an explosive, gunpowder or any similar means.
(h) The sentences provided herein upon conviction for a
violation of subsections (a) and (c) of this section are mandatory.
NOTE: The purpose of this bill is to create new felony
offenses of malicious wounding with the use of a firearm and
unlawful wounding with the use of a firearm of a law-enforcement
officer and providing for mandatory jail sentences for said
offenses of at least ten years.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.