PRINTER'S NO.  32

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

40

Session of

2009

  

  

INTRODUCED BY PERRY, METCALFE, BAKER, BARRAR, BELFANTI, BENNINGHOFF, BOBACK, CAUSER, CREIGHTON, CUTLER, DALLY, ELLIS, FAIRCHILD, FLECK, GEIST, GEORGE, GIBBONS, GODSHALL, GRELL, GROVE, HALUSKA, HARHAI, HARRIS, HESS, HICKERNELL, HUTCHINSON, KAUFFMAN, KILLION, KORTZ, LONGIETTI, MARSHALL, MILLER, MOUL, PAYNE, PEIFER, PICKETT, PYLE, QUIGLEY, RAPP, READSHAW, REED, ROAE, ROCK, ROHRER, SAYLOR, SIPTROTH, S. H. SMITH, SOLOBAY, SONNEY, STABACK, STEVENSON, SWANGER, TRUE, TURZAI, VULAKOVICH, DENLINGER AND HORNAMAN, JANUARY 26, 2009

  

  

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 26, 2009  

  

  

  

AN ACT

  

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Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

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Judicial Procedure) of the Pennsylvania Consolidated

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Statutes, further providing, in general principles of

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justification, for definitions, for use of force in self-

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protection, for use of force for the protection of other

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persons and for licenses to carry firearms; providing for

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civil immunity for use of force; and further providing for

8

sentences for offenses committed with firearms.

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The General Assembly finds that:

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(1)  It is proper for law-abiding people to protect

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themselves, their families and others from intruders and

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attackers without fear of prosecution or civil action for

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acting in defense of themselves and others.

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(2)  The Castle Doctrine is a common law doctrine of

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ancient origins which declares that a home is a person's

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castle.

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(3)  Section 21 of Article I of the Constitution of

 


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Pennsylvania guarantees that the "right of the citizens to

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bear arms in defense of themselves and the State shall not be

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questioned."

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(4)  Persons residing in or visiting this Commonwealth

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have a right to expect to remain unmolested within their

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homes or vehicles.

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(5)  No person should be required to surrender his or her

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personal safety to a criminal, nor should a person be

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required to needlessly retreat in the face of intrusion or

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attack outside the person's home or vehicle.

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(6)  Despite the clear language of 18 Pa.C.S. §§ 6106 and

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6109, inconsistent statutory and regulatory language appears

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to limit the ability of law enforcement officers and properly

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licensed individuals to carry a firearm throughout this

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Commonwealth.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Section 501 of Title 18 of the Pennsylvania

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Consolidated Statutes is amended to read:

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§ 501.  Definitions.

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Subject to additional definitions contained in subsequent

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provisions of this chapter which are applicable to specific

23

provisions of this chapter, the following words and phrases,

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when used in this chapter shall have, unless the context clearly

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indicates otherwise, the meanings given to them in this section:

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"Believes" or "belief."  Means "reasonably believes" or

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"reasonable belief."

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"Correctional institution."  Any penal institution,

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penitentiary, State farm, reformatory, prison, jail, house of

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correction, or other institution for the incarceration or

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custody of persons under sentence for offenses or awaiting trial

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or sentence for offenses.

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"Corrections officer."  A full-time employee assigned to the

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Department of Corrections whose principal duty is the care,

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custody and control of inmates of a penal or correctional

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institution operated by the Department of Corrections. 

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"Deadly force."  Force which, under the circumstances in

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which it is used, is readily capable of causing death or serious

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bodily injury.

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"Dwelling."  Any building or structure, including any

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attached porch, deck or patio, though movable or temporary, or a

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portion thereof, which is for the time being the home or place

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of lodging of the actor.

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"Peace officer."  Any person who by virtue of his office or

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public employment is vested by law with a duty to maintain

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public order or to make arrests for offenses, whether that duty

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extends to all offenses or is limited to specific offenses, or

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any person on active State duty pursuant to [section 311 of the

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act of May 27, 1949 (P.L.1903, No.568), known as "The Military

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Code of 1949."] 51 Pa.C.S. § 508 (relating to active duty for

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emergency). The term "peace officer" shall also include any

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member of any park police department of any county of the third

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class.

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"Residence."  A dwelling in which a person resides, either

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temporarily or permanently, or visits as an invited guest.

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"Unlawful force."  Force, including confinement, which is

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employed without the consent of the person against whom it is

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directed and the employment of which constitutes an offense or

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actionable tort or would constitute such offense or tort except

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for a defense (such as the absence of intent, negligence, or

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mental capacity; duress; youth; or diplomatic status) not

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amounting to a privilege to use the force. Assent constitutes

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consent, within the meaning of this section, whether or not it

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otherwise is legally effective, except assent to the infliction

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of death or serious bodily injury.

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"Vehicle."  A conveyance of any kind, whether or not

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motorized, which is designed to transport people or property.

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Section 2.  Section 505(b) of Title 18 is amended and the

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section is amended by adding a subsection to read:

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§ 505.  Use of force in self-protection.

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* * *

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(b)  Limitations on justifying necessity for use of force.--

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(1)  The use of force is not justifiable under this

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section:

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(i)  to resist an arrest which the actor knows is

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being made by a peace officer, although the arrest is

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unlawful; or

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(ii)  to resist force used by the occupier or

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possessor of property or by another person on his behalf,

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where the actor knows that the person using the force is

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doing so under a claim of right to protect the property,

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except that this limitation shall not apply if:

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(A)  the actor is a public officer acting in the

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performance of his duties or a person lawfully

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assisting him therein or a person making or assisting

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in a lawful arrest;

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(B)  the actor has been unlawfully dispossessed

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of the property and is making a reentry or recaption

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justified by section 507 of this title (relating to

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use of force for the protection of property); or

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(C)  the actor believes that such force is

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necessary to protect himself against death or serious

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bodily injury.

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(2)  The use of deadly force is not justifiable under

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this section unless the actor believes that such force is

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necessary to protect himself against death, serious bodily

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injury, kidnapping or sexual intercourse compelled by force

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or threat; nor is it justifiable if:

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(i)  the actor, with the intent of causing death or

10

serious bodily injury, provoked the use of force against

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himself in the same encounter; or

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(ii)  the actor knows that he can avoid the necessity

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of using such force with complete safety by retreating

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[or by surrendering possession of a thing to a person

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asserting a claim of right thereto or by complying with a

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demand that he abstain from any action which he has no

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duty to take], except [that:

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(A)]  the actor is not obliged to retreat from

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his dwelling [or place of work,] unless he was the

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initial aggressor [or is assailed in his place of

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work by another person whose place of work the actor

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knows it to be; and

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(B)  a public officer justified in using force in

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the performance of his duties or a person justified

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in using force in his assistance or a person

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justified in using force in making an arrest or

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preventing an escape is not obliged to desist from

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efforts to perform such duty, effect such arrest or

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prevent such escape because of resistance or

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threatened resistance by or on behalf of the person

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against whom such action is directed].

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(2.1)  Except as otherwise provided in paragraph (2.2),

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an actor is presumed to have a reasonable belief that deadly

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force is immediately necessary to protect himself against

5

death, serious bodily injury, kidnapping or sexual

6

intercourse compelled by force or threat if both of the

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following exist:

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(i)  The person against whom the protective force was

9

used was in the process of unlawfully and forcefully

10

entering, or had unlawfully and forcefully entered, a

11

dwelling, residence or occupied vehicle; or the person

12

against whom the protective force was used had unlawfully

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and forcefully removed or was attempting to unlawfully

14

and forcefully remove another against that other's will

15

from the dwelling, residence or occupied vehicle.

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(ii)  The actor knew or had reason to believe that an

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unlawful and forceful entry or act was occurring or had

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occurred.

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(2.2)  The presumption set forth in paragraph (2.1) does

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not apply if:

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(i)  the person against whom the protective force is

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used has the right to be in or is a lawful resident of

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the dwelling, residence or vehicle, such as an owner or

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lessee;

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(ii)  the person sought to be removed is a child or

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grandchild or is otherwise in the lawful custody or under

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the lawful guardianship of the person against whom the

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protective force is used;

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(iii)  the actor is engaged in a criminal activity or

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is using the dwelling, residence or occupied vehicle to

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further a criminal activity; or

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(iv)  the person against whom the protective force is

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used is a peace officer acting in the performance of his

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official duties and the peace officer identified himself

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or the person using force knew or reasonably should have

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known that the person was a peace officer.

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(2.3)  An actor who is not engaged in a criminal activity

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and who is attacked in any place where the actor has a right

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to be has no duty to retreat and has the right to stand his

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ground and use protective force, including deadly force, if

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the actor believes it is immediately necessary to do so to

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protect himself against death, serious bodily injury,

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kidnapping or sexual intercourse by force or threat.

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(2.4)  Unless one of the exceptions under paragraph (2.2)

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applies, a person who unlawfully and by force enters or

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attempts to enter an actor's dwelling, residence or occupied

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vehicle or removes or attempts to remove another against that

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other's will from the actor's dwelling, residence or occupied

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vehicle is presumed to be doing so with the intent to commit:

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(i)  an act resulting in death or serious bodily

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injury; or

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(ii)  kidnapping or sexual intercourse by force or

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threat.

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(2.5)  A public officer justified in using force in the

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performance of his duties or a person justified in using

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force in his assistance or a person justified in using force

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in making an arrest or preventing an escape is not obliged to

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desist from efforts to perform such duty, effect such arrest

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or prevent such escape because of resistance or threatened

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resistance by or on behalf of the person against whom such

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action is directed.

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(3)  Except as [required by paragraphs (1) and (2) of

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this subsection,] otherwise required by this subsection, a

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person employing protective force may estimate the necessity

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thereof under the circumstances as he believes them to be

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when the force is used, without retreating, surrendering

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possession, doing any other act which he has no legal duty to

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do or abstaining from any lawful action.

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* * *

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(d)  Definition.--As used in this section, the term "criminal

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activity" means conduct which is a misdemeanor or felony, is not

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justifiable under this chapter and is the proximate cause of the

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confrontation between an actor and the person against whom

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protective force is used.

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Section 3.  Section 506 of Title 18 is amended to read:

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§ 506.  Use of force for the protection of other persons.

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(a)  General rule.--The use of force upon or toward the

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person of another is justifiable to protect a third person when:

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(1)  the actor would be justified under section 505 [of

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this title] (relating to use of force in self-protection) in

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using such force to protect himself against the injury he

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believes to be threatened to the person whom he seeks to

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protect;

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(2)  under the circumstances as the actor believes them

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to be, the person whom he seeks to protect would be justified

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in using such protective force; and

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(3)  the actor believes that his intervention is

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necessary for the protection of such other person.

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(b)  [Exceptions] Exception.--Notwithstanding subsection (a)

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[of this section:

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(1)  When the actor would be obliged under section 505 of

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this title to retreat, to surrender the possession of a thing

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or to comply with a demand before using force in self-

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protection, he is not obliged to do so before using force for

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the protection of another person, unless he knows that he can

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thereby secure the complete safety of such other person.

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(2)  When the person whom the actor seeks to protect

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would be obliged under section 505 of this title to retreat,

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to surrender the possession of a thing or to comply with a

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demand if he knew that he could obtain complete safety by so

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doing, the actor is obliged to try to cause him to do so

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before using force in his protection if the actor knows that

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he can obtain complete safety in that way.

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(3)  Neither the actor nor the person whom he seeks to

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protect is obliged to retreat when in the dwelling or place

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of work of the other to any greater extent than in his own.],  

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the actor is not obliged to retreat to any greater extent

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than the person whom he seeks to protect.

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Section 4.  The definition of "loaded" in section 6102 of

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Title 18 is amended to read:

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§ 6102.  Definitions.

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Subject to additional definitions contained in subsequent

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provisions of this subchapter which are applicable to specific

24

provisions of this subchapter, the following words and phrases,

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when used in this subchapter shall have, unless the context

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clearly indicates otherwise, the meanings given to them in this

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section:

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* * *

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"Loaded."  A firearm is loaded if the firing chamber, the

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nondetachable magazine or, in the case of a revolver, any of the

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chambers of the cylinder contain ammunition capable of being

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fired. In the case of a firearm which utilizes a detachable

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magazine, the term shall mean a magazine suitable for use in

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said firearm which magazine contains such ammunition and has

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been inserted in the firearm or is in the same container or,

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where the container has multiple compartments, the same

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compartment thereof as the firearm. If the magazine is inserted

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into a pouch, holder, holster or other protective device that

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provides for a complete and secure enclosure of the ammunition,

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then the pouch, holder, holster or other protective device shall

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be deemed to be a separate compartment.

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* * *

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Section 5.  Section 6109 of Title 18 is amended by adding

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subsections to read:

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§ 6109.  Licenses.

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* * *

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(m.4)  Inconsistent provisions.--Notwithstanding the

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provisions of 75 Pa.C.S. § 7727 (relating to additional

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limitations on operation), or the act of June 28, 1995 (P.L.89,

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No.18), known as the Conservation and Natural Resources Act, and

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regulations promulgated under that act, a firearm may be carried

22

as provided in subsection (a) by:

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(1)  a law enforcement officer whose current

24

identification as a law enforcement officer shall be

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construed as a valid license to carry a firearm; or

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(2)  any licensee.

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(m.5)  Construction.--Nothing in this section shall be

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construed to:

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(1)  Permit the hunting or harvesting of any wildlife

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with a firearm or ammunition not otherwise permitted by 34

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Pa.C.S. (relating to game).

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(2)  Authorize any Commonwealth agency to regulate the

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possession of firearms in any manner inconsistent with the

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provisions of this title.

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* * *

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Section 6.  Title 42 is amended by adding a section to read:

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§ 8340.2.  Civil immunity for use of force.

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(a)  General rule.--An actor who uses force:

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(1)  in self-protection as provided in 18 Pa.C.S. § 505 

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(relating to use of force in self-protection);

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(2)  in the protection of other persons as provided in 18

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Pa.C.S. § 506 (relating to use of force for the protection of

13

other persons);

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(3)  for the protection of property as provided in 18

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Pa.C.S. § 507 (relating to use of force for the protection of

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property);

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(4)  in law enforcement as provided in 18 Pa.C.S. § 508 

18

(relating to use of force in law enforcement); or

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(5)  consistent with the actor's special responsibility

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for care, discipline or safety of others as provided in 18

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Pa.C.S. § 509 (relating to use of force by persons with

22

special responsibility for care, discipline or safety of

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others);

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is justified in using such force and shall be immune from civil

25

liability for personal injuries sustained by a perpetrator which

26

were caused by the acts or omissions of the actor as a result of

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the use of force.

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(b)  Attorney fees and costs.--If the actor who satisfies the

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requirements of subsection (a) prevails in a civil action

30

initiated by or on behalf of a perpetrator against the actor,

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the court shall award reasonable expenses to the actor.

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Reasonable expenses shall include, but not be limited to,

3

attorney fees, expert witness fees, court costs and compensation

4

for loss of income.

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(c)  Definition.--As used in this section, the term

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"perpetrator" shall mean a person against whom an actor is

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justified in using force as provided by 18 Pa.C.S. § 505, 506,

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507, 508 or 509.

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Section 7.  This act shall take effect in 60 days.

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