H. B. 2934
(By Delegate Schoen, Hall, Paxton and Martin)
[Introduced March 8, 2005; 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 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 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 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 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 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 acting in
such capacity, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
the county or regional 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 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 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
the county or regional
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
and may not be subject to suspension or probation.
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.