H. B. 2734
(By Delegates Rodighiero, Ellis, Argento and Moye)
[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 section, designated §55-2-17a; and to
amend said code 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 body harm when using
defensive force that is intended or likely to cause death or
great bodily harm to another; granting immunity from criminal
prosecution and civil action and prohibiting cancellation of
property insurance for claims made by those facing criminal
prosecution under this article.
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 section, designated §55-2-17a; and to amend
said code by adding thereto a new article, designated §61-2A-1,
§61-2A-2 and §61-2A-3, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 2. LIMITATION OF ACTIONS AND SUITS.
§55-2-17a. Suit prevented against victims of forceable or
unlawful entry.
(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,
article two-a of chapter sixty-one of this code and who is
justified in using such force is immune from any civil action by
any person who faced criminal prosecution for such entry, for the
use of such force, except when:
(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
applicable law;
(2) The person using force knew or reasonably should have
known that the person was a law-enforcement officer.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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; and
(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) 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 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 subsection, 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,
except when:
(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
applicable law;
(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), 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).
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
and
prohibiting cancellation of property insurance for claims made by
those facing criminal prosecution under this article.
§55-2-17a, §61-2A-1, §61-2A-2 and §61-2A-3, are new;
therefore, strike-throughs and underscoring have been omitted.