H. B. 2254
(By Delegates Faircloth and Trump)
[Introduced January 10, 1996; 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:
ARTICLE 7D. IMMUNITY FROM CIVIL AND CRIMINAL LIABILITY FOR
PERSONS USING DEADLY FORCE TO PROTECT HOME AND
VALUABLE PROPERTY.
§55-7D-1. Declaration of purpose.
The Legislature hereby declares that law enforcement cannot be everywhere all the time to protect all its citizens from the
violence and crime that plaques this country and state.
The purpose of this article is to allow law-abiding citizens
to protect themselves and their property from crime.
§55-7D-2. Definitions.
Under the provisions of this article the following terms
shall be defined to mean as follows:
(a) "Occupant" means any person or persons who are lawfully
present in a dwelling house, or upon real estate in which the
person or persons hold an ownership interest, including a
leasehold or tenancy;
(b) "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
the residential housing or shelter which is primarily used for
commercial or business purposes;
(c) "Lawfully present" means the status of any person who is
present upon real estate or within a dwelling and who enjoys an
ownership interest in the 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 present" 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 present" 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 delivery 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 the employee's employment
status.
(d) "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.
(e) "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 the discharging without striking the person, or
physically striking the person with any weapon or instrument,
including any part of one's anatomy or parcel of clothing.
§55-7D-3. Use of deadly force justified in certain
circumst
ances;
immunity
from
criminal
and civil
liability.
Any owner or occupant who, while lawfully on the premises in
a residential dwelling uses deadly force to repel or stop an
intrusion or the progression thereof in the dwelling by a person
or persons who have no right, title or interest in the dwelling
or the surrounding land whereupon the dwelling is situate, and
when the person or persons are bent upon causing criminal
mischief in such dwelling, shall not be liable for any civil
damages. Nor shall the owner or 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 occupant or other person who is lawfully
present 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 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.