H. B. 2362

(By Delegates Overington, J. Martin, Love, Riggs,

Ashley and Collins)

[Introduced February 3, 1995; referred to the
Committee on the Judiciary.]

A BILL to amend chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seven-d, relating to allowing persons to defend valuable property with deadly force.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article seven-d, to read as follows:

§55-7D-1. Declaration of purpose
The Legislature hereby declares that law-enforcement can not always provide sufficient coverage to protect all persons from the violence and crime that plagues this country and state.
The purpose of this article is to extend authority to law-abiding citizens to protect themselves and their property from crime and the consequences of crime.
§55-7D-2. Definitions.
Under the provisions of this article the following terms' meanings are in accordance with the following:
(a) "Deadly force" means force designed or intended to cause serious injury or death, regardless of the instrumentality used to inflict same, in order to stop a criminal act which occurs within a dwelling house or on the outside thereof by one attempting to make illegal entry.
(b) "Intruder" means a person who is not lawfully on the premises.
(c) "Lawfully on the premises" means the status of any person who is present upon real estate or within a dwelling and who enjoys an ownership interest in such real estate or dwelling or is otherwise present on such property through the authority of an owner thereof or other lawful authority as the result of: (1) Holding the title thereto; (2) inheritance; (3) having received a gift comprised of same; (4) court order; (5) permission from an owner or owners to be present thereon or therein; (6) holding a valid lease or tenancy thereto whether in writing or not: Provided, That this article shall not apply to a tenant or leaseholder of property as against the record title holder of the same property or vice versa; nor shall the term "lawfully on the premises" apply to any person who, at one time being a tenant or leaseholder, is no longer authorized to be on the premises due to an expired or terminated tenancy or lease; (7) being related by blood or marriage to the owner of such property: Provided, however, That the term "lawfully on the premises" shall not include a person, whether related by blood or marriage or not so related, who has been barred by judicial order from being present on or about the property; (8) being a law-enforcement officer who is investigating crime or attempting to serve legal process; (9) being a mail deliverer or other person whose presence results from their employment relationship to such mail delivery or other delivery business; or, (10) being an employee of a utility or public concern who is present to check utilities or as the result of permissive access that exists due to such employee's employment status.
(d) "Nondeadly force" means force designed or intended to prevent, repel, or stop any criminal act from occurring, which occurs upon or within the boundaries of real property belonging to, or to which an occupant of a dwelling has authority to be present upon, but is not designed or intended to cause death or serious bodily injury. Nondeadly force may include, but is not limited to, the discharging of a firearm into the air or ground or in the direction of the person whose criminal act has precipitated such discharging without striking such person, or physically striking the person with any weapon or instrument, including any part of one's anatomy or parcel of clothing.
(e) "Residential dwelling" means a house or structure which is placed upon land for the purpose of providing residential housing, shelter for human habitation, or any other structure attached to such residential housing or shelter which is primarily used for commercial or business purposes;
(f) "Residential occupant" means any person or persons who are lawfully present in a residential dwelling house, or upon real estate in which such person or persons hold an ownership interest, including a leasehold or tenancy.
§55-7D-3. Use of deadly force justified in certain circumstances;
immunity from criminal and civil liability.

Any owner or residential occupant who, while lawfully on the premises in a residential dwelling uses deadly force, under the principle of lawful self-defense, to repel or stop an intrusion or the progression thereof in such dwelling by an intruder or intruders when such intruder or intruders are bent upon causing criminal mischief in such dwelling shall not be liable for any civil damages. Nor shall such owner or residential occupant be held criminally responsible for the consequences of any actions taken in accordance with this section.
§55-7D-4. Use of nondeadly force; immunity from civil and
criminal liability.

Any private owner or residential occupant or other person who is lawfully on the premises of particular real estate may use nondeadly force to repel, stop, or prevent the attempt to commit, or the progression of, any crime in which an attempt to commit is being made or which is in progress in the presence of such private owner or residential occupant: Provided, That no restriction set forth in this section may prevent the use of deadly force by an owner or residential occupant, in the event an intruder's or intruders' purpose changes or appears to change to include, or does include, the intent to cause serious bodily injury or death to the person of another.

NOTE: The purpose of this bill is to allow persons to defend their dwellings and valuable property with deadly force without being exposed to civil or criminal liability. It further allows the use of nondeadly force to repel criminal mischief that is being committed in the presence of an owner or other person on private property without suffering civil and criminal liability.

Article seven-d is new; therefore, strike-throughs and underscoring have been omitted.