Introduced Version
House Bill 2951 History
| 
Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2951
(By Delegates Marcum, R. Phillips, Barill,
Eldridge, Tomblin, Stowers, Moore, L. Phillips,
White, Ferro and Sponaugle (all by request))
[Introduced March 15, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §55-7-22 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto two
new sections, designated §55-7-22a and §55-7-22b, all relating
to providing enhanced criminal and civil protections to
individuals who use force in protecting themselves, their
property or other individuals from certain criminal activities
of others.
Be it enacted by the Legislature of West Virginia:
That §55-7-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §55-7-22a and §55-7-22b, all
to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-22. Criminal and civil relief immunity for persons resisting
certain criminal activities and using permitted force
and acting within the law for the use of that force.
_____(a) (1) A person who uses force as permitted by this section
is justified in using that force and is immune from criminal
prosecution and civil action for the use of that force, unless the
person against whom the force was used is a peace 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 peace officer. As used in this
subsection, the term "criminal prosecution" includes arresting,
detaining in custody and charging or prosecuting the defendant.
_____(2) A law-enforcement agency may use standard procedures for
investigating the use of force, but the agency may not arrest the
person for using force unless it determines that there is
reasonable suspicion that the force that was used was unlawful.
_____(3) 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.
_____(a) (b) A lawful occupant within a home or other place of
residence is justified in using reasonable and proportionate force,
including deadly force, against an intruder or attacker to prevent
a forcible entry into the home or residence or to terminate the
intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict
serious bodily harm upon the occupant or others in the home or
residence or if the occupant reasonably believes that the intruder
or attacker intends to commit a felony in the home or residence and
the occupant reasonably believes deadly force is necessary.
(b) (c) A lawful occupant within a home or other place of
residence does not have a duty to retreat from an intruder or
attacker in the circumstances described in subsection (a) (b) of
this section.
(c) (d) A person not engaged in unlawful activity who is
attacked in any place he or she has a legal right to be outside of
his or her home or residence may use reasonable and proportionate
force, to the degree he or she believes is necessary, against an
intruder or attacker: Provided, That such the person may use
deadly force against an intruder or attacker in a place that is not
his or her residence without a duty to retreat if the person
reasonably believes that he or she or another is in imminent danger
of death or serious bodily harm from which he or she or another can
only be saved by the use of deadly force against the intruder or
attacker.
(d) (e) The justified use of reasonable and proportionate
force under this section shall constitute is a full and complete
defense to any civil action brought by an intruder or attacker
against a person using such force.
(e) (f) The full and complete criminal and civil defense
created by the provisions of this section is not available to a
person who:
(1) Is attempting to commit, committing or escaping from the
commission of a misdemeanor or felony;
(2) Initially provokes the use of force against himself,
herself or another with the intent to use such force as an excuse
to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against
himself, herself or another, unless he or she withdraws from
physical contact with the assailant and indicates clearly to the
assailant that he or she desires to withdraw and terminate the use
of force, but the assailant continues or resumes the use of force.
(f) (g) The provisions of this section do not apply to the
creation of a hazardous or dangerous condition on or in any real or
personal property designed to prevent criminal conduct or cause
injury to a person engaging in criminal conduct.
(g) (h) Nothing in this section shall authorize or justify
authorizes or justifies a person to resist or obstruct a
law-enforcement officer acting in the course of his or her duty.
§55-7-22a. Protection of another.
_____(a) The use of physical force by a defendant upon another
person is justifiable when:
_____(1) The defendant reasonably believes that the force is necessary to protect a third person against the use or imminent use
of unlawful physical force by the other person; and
_____(2) Under the circumstances as the defendant believes them to
be, the person whom he or she seeks to protect would have been
justified under the law in using the protection.
_____(b) The use of deadly physical force by a defendant upon
another person is justifiable when:
_____(1) The defendant believes that the force is necessary to
protect a third person against imminent death, serious physical
injury, kidnapping, sexual intercourse compelled by force or
threat, or other felony involving the use of force, or under those
circumstances permitted pursuant to section twenty-two of this
article; and
_____(2) Under the circumstances as they actually exist, the person
whom he or she seeks to protect would have been justified under the
law in using the protection.
_____(c) 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.
§55-7-22b. Protection of property.
_____(a) The use of physical force by a defendant upon another
person is justifiable when the defendant reasonably believes that
the force is immediately necessary to prevent:
_____(1) The commission of criminal trespass, robbery, burglary or
other felony involving the use of force, or under those circumstances permitted pursuant to section twenty-two of this
article, in a dwelling, building or upon real property in his or
her possession or in the possession of another person for whose
protection he or she acts; or
_____(2) Theft, criminal mischief, or any trespassory taking of
tangible, movable property in his or her possession or in the
possession of another person for whose protection he or she acts.
_____(b) The use of deadly physical force by a defendant upon
another person is justifiable under subsection (a) of this section
only when the defendant believes that the person against whom the
force is used is:
_____(1) Attempting to dispossess him or her of his or her dwelling
otherwise than under a claim of right to its possession;
_____(2) Committing or attempting to commit a burglary, robbery or
other felony involving the use of force, or under those
circumstances permitted pursuant to section twenty-two of this
article, of the dwelling; or
_____(3) Committing or attempting to commit arson of a dwelling or
other building in his or her possession.
_____(c) A person does have a duty to retreat if the person can
safely retreat.
NOTE: The purpose of this bill is to provide enhanced criminal
and civil protections to individuals who use force in protecting
themselves, their property or other individuals from certain
criminal activities of others.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§55-7-22a and §55-7-22b are new; therefore, they have been
completely underscored.
Webmaster | © 2024 West Virginia Legislature **
