H. B. 4570
(By Delegates Stemple, Kominar, Michael,
Stalnaker, Mahan, Varner, Hrutkay, Cann, Williams,
Perry and Browning)
[Introduced
February 15, 2006
; 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.