SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version House Bill 2264 History

   |  Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2264


(By Delegates Stemple, Stalnaker, Mahan, Varner,
Hrutkay, Cann, Williams, Perry and Browning)

[Introduced January 9, 2008; 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, §61-2A-3 and §61-2A-4, all relating to the justifiable use of force, including deadly force, in the protection of persons and property.

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, §61-2A-3 and §61-2A-4, all
to read as follows:
ARTICLE 2A. JUSTIFIABLE USE OF FORCE.
§61-2A-1
. Use of force in defense of person.
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to section two of this article.
§61-2A-2. Use of force in defense of others.
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortuous or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
§61-2A-3
.
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) 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 person; or
(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 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-4. Immunity from criminal prosecution and civil action for justifiable use of force.
(a) A person who uses force as permitted in this article is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law-enforcement officer who was acting 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 was a law-enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody and charging or prosecuting the defendant.
(b) A law-enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), 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.
(c) 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 (a) of this section.

NOTE: The purpose of this bill is to authorize a person to use force, including deadly force, against an intruder or attacker in a dwelling, residence or vehicle under specified circumstances; to provide, under certain circumstances, that a person may stand his or her ground and meet force with force, and has no duty to retreat; providing criminal and civil immunity for using deadly force.

This article is new; therefore, strike-throughs and underscoring have been omitted.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print