PRIOR PRINTER'S NO. 263

PRINTER'S NO.  1038

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

40

Session of

2011

  

  

INTRODUCED BY PERRY, METCALFE, AUMENT, BAKER, BARBIN, BARRAR, BEAR, BENNINGHOFF, BLOOM, BOBACK, BOYD, BRENNAN, BROOKS, BURNS, CALTAGIRONE, CARROLL, CAUSER, CHRISTIANA, CLYMER, CONKLIN, D. COSTA, COX, CREIGHTON, CUTLER, DALEY, DAY, DEASY, DELOZIER, DeLUCA, DENLINGER, DERMODY, DeWEESE, DUNBAR, ELLIS, EVANKOVICH, J. EVANS, EVERETT, FARRY, FLECK, GABLER, GEIST, GEORGE, GERGELY, GIBBONS, GILLEN, GILLESPIE, GINGRICH, GODSHALL, GOODMAN, GRELL, GROVE, HAHN, HALUSKA, HANNA, HARHAI, HARHART, HARPER, HARRIS, HELM, HENNESSEY, HESS, HICKERNELL, HORNAMAN, HUTCHINSON, KAUFFMAN, M.K. KELLER, KILLION, KNOWLES, KORTZ, KOTIK, KRIEGER, KULA, LAWRENCE, LONGIETTI, MAHER, MAHONEY, MAJOR, MALONEY, MARKOSEK, MARSHALL, MATZIE, METZGAR, MICCARELLI, MICOZZIE, MILLARD, MILLER, MIRABITO, MOUL, MULLERY, MURPHY, MURT, MUSTIO, NEUMAN, OBERLANDER, O'NEILL, PASHINSKI, PAYNE, PEIFER, PETRARCA, PETRI, PICKETT, PYLE, QUIGLEY, QUINN, RAPP, READSHAW, REED, REESE, REICHLEY, ROAE, ROCK, SACCONE, SAINATO, SAYLOR, SCAVELLO, SCHRODER, SIMMONS, K. SMITH, M. SMITH, S. H. SMITH, SONNEY, STABACK, STERN, STEVENSON, SWANGER, TALLMAN, J. TAYLOR, TOBASH, TOEPEL, TOOHIL, TURZAI, VEREB, VULAKOVICH, WATSON, WHITE, MASSER, RAVENSTAHL, EMRICK, CULVER AND MILNE, JANUARY 31, 2011

  

  

AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, MARCH 7, 2011   

  

  

  

AN ACT

  

1

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

2

Judicial Procedure) of the Pennsylvania Consolidated

3

Statutes, further providing, in general principles of

4

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

5

protection, for use of force for the protection of other

6

persons, for grading of theft offenses and for licenses to

7

carry firearms; and providing for civil immunity for use of

8

force.

9

The General Assembly finds that:

10

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

 


1

themselves, their families and others from intruders and

2

attackers without fear of prosecution or civil action for

3

acting in defense of themselves and others.

4

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

5

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

6

castle.

7

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

8

Pennsylvania guarantees that the "right of the citizens to

9

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

10

questioned."

11

(4)  Persons residing in or visiting this Commonwealth

12

have a right to expect to remain unmolested within their

13

homes or vehicles.

14

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

15

personal safety to a criminal, nor should a person be

16

required to needlessly retreat in the face of intrusion or

17

attack outside the person's home or vehicle.

18

The General Assembly of the Commonwealth of Pennsylvania

19

hereby enacts as follows:

20

Section 1.  Section 501 of Title 18 of the Pennsylvania

21

Consolidated Statutes is amended to read:

22

§ 501.  Definitions.

23

Subject to additional definitions contained in subsequent

24

provisions of this chapter which are applicable to specific

25

provisions of this chapter, the following words and phrases,

26

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

27

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

28

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

29

"reasonable belief."

30

"Correctional institution."  Any penal institution,

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1

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

2

correction, or other institution for the incarceration or

3

custody of persons under sentence for offenses or awaiting trial

4

or sentence for offenses.

5

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

6

Department of Corrections whose principal duty is the care,

7

custody and control of inmates of a penal or correctional

8

institution operated by the Department of Corrections. 

9

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

10

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

11

bodily injury.

12

"Dwelling."  Any building or structure, including any

13

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

14

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

15

of lodging of the actor.

16

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

17

public employment is vested by law with a duty to maintain

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

class.

26

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

27

temporarily or permanently, or visits as an invited guest.

28

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

29

employed without the consent of the person against whom it is

30

directed and the employment of which constitutes an offense or

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1

actionable tort or would constitute such offense or tort except

2

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

3

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

4

amounting to a privilege to use the force. Assent constitutes

5

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

6

otherwise is legally effective, except assent to the infliction

7

of death or serious bodily injury.

8

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

9

motorized, that is designed to transport people or property.

10

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

11

section is amended by adding a subsection to read:

12

§ 505.  Use of force in self-protection.

13

* * *

14

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

15

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

16

section:

17

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

18

being made by a peace officer, although the arrest is

19

unlawful; or

20

(ii)  to resist force used by the occupier or

21

possessor of property or by another person on his behalf,

22

where the actor knows that the person using the force is

23

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

24

except that this limitation shall not apply if:

25

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

26

performance of his duties or a person lawfully

27

assisting him therein or a person making or assisting

28

in a lawful arrest;

29

(B)  the actor has been unlawfully dispossessed

30

of the property and is making a reentry or recaption

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1

justified by section 507 of this title (relating to

2

use of force for the protection of property); or

3

(C)  the actor believes that such force is

4

necessary to protect himself against death or serious

5

bodily injury.

6

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

7

this section unless the actor believes that such force is

8

necessary to protect himself against death, serious bodily

9

injury, kidnapping or sexual intercourse compelled by force

10

or threat; nor is it justifiable if:

11

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

12

serious bodily injury, provoked the use of force against

13

himself in the same encounter; or

14

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

15

of using such force with complete safety by retreating

16

[or by surrendering possession of a thing to a person

17

asserting a claim of right thereto or by complying with a

18

demand that he abstain from any action which he has no

19

duty to take], except [that:

20

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

21

his dwelling or place of work, unless he was the

22

initial aggressor or is assailed in his place of work

23

by another person whose place of work the actor knows

24

it to be[; and

25

(B)  a public officer justified in using force in

26

the performance of his duties or a person justified

27

in using force in his assistance or a person

28

justified in using force in making an arrest or

29

preventing an escape is not obliged to desist from

30

efforts to perform such duty, effect such arrest or

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1

prevent such escape because of resistance or

2

threatened resistance by or on behalf of the person

3

against whom such action is directed].

4

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

5

an actor is presumed to have a reasonable belief that deadly

6

force is immediately necessary to protect himself against

7

death, serious bodily injury, kidnapping or sexual

8

intercourse compelled by force or threat if both of the

9

following conditions exist:

10

(i)  The person against whom the force is used is in

11

the process of unlawfully and forcefully entering, or has 

12

unlawfully and forcefully entered and is present within,

13

a dwelling, residence or occupied vehicle; or the person

14

against whom the force is used is or is attempting to

15

unlawfully and forcefully remove another against that

16

other's will from the dwelling, residence or occupied

17

vehicle.

18

(ii)  The actor knows or has reason to believe that

19

the unlawful and forceful entry or act is occurring or

20

has occurred.

21

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

22

not apply if:

23

(i)  the person against whom the force is used has

24

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

25

dwelling, residence or vehicle, such as an owner or

26

lessee;

27

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

28

grandchild or is otherwise in the lawful custody or under

29

the lawful guardianship of the person against whom the

30

protective force is used;

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1

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

2

is using the dwelling, residence or occupied vehicle to

3

further a criminal activity; or

4

(iv)  the person against whom the force is used is a

5

peace officer acting in the performance of his official

6

duties and the actor using force knew or reasonably

7

should have known that the person was a peace officer.

8

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

9

activity, who is not in illegal possession of a firearm and

<--

10

who is attacked in any place where the actor would have a

11

duty to retreat under paragraph (2)(ii), has no duty to

12

retreat and has the right to stand his ground and use force,

13

including deadly force, if:

14

(i)  the actor has a right to be in the place where

15

he was attacked;

16

(ii)  the actor believes it is immediately necessary

17

to do so to protect himself against death, serious bodily

18

injury, kidnapping or sexual intercourse by force or

19

threat; and

20

(iii)  the person against whom the force is used

21

displays or otherwise uses:

22

(A)  a firearm or replica of a firearm as defined

23

in 42 Pa.C.S. § 9712 (relating to sentences for

24

offenses committed with firearms); or

25

(B)  any other weapon readily or apparently

26

capable of lethal use.

27

(2.4)  The exception to the duty to retreat set forth

<--

28

under paragraph (2.3) does not apply if the person against

29

whom the force is used is a peace officer acting in the

30

performance of his official duties and the actor using force

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1

knew or reasonably should have known that the person was a

2

peace officer.

3

(2.4) (2.5)  Unless one of the exceptions under paragraph

<--

4

(2.2) applies, a person who unlawfully and by force enters or

5

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

6

vehicle or removes or attempts to remove another against that

7

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

8

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

9

(i)  an act resulting in death or serious bodily

10

injury; or

11

(ii)  kidnapping or sexual intercourse by force or

12

threat.

13

(2.5) (2.6)  A public officer justified in using force in

<--

14

the performance of his duties or a person justified in using

15

force in his assistance or a person justified in using force

16

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

17

desist from efforts to perform such duty, effect such arrest

18

or prevent such escape because of resistance or threatened

19

resistance by or on behalf of the person against whom such

20

action is directed.

21

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

22

this subsection,] otherwise required by this subsection, a

23

person employing protective force may estimate the necessity

24

thereof under the circumstances as he believes them to be

25

when the force is used, without retreating, surrendering

26

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

27

do or abstaining from any lawful action.

28

* * *

29

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

30

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

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1

justifiable under this chapter and is the proximate cause of 

<--

2

related to the confrontation between an actor and the person

<--

3

against whom force is used.

4

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

5

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

6

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

7

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

8

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

9

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

10

using such force to protect himself against the injury he

11

believes to be threatened to the person whom he seeks to

12

protect;

13

(2)  under the circumstances as the actor believes them

14

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

15

in using such protective force; and

16

(3)  the actor believes that his intervention is

17

necessary for the protection of such other person.

18

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

19

[of this section:

20

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

21

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

22

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

23

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

24

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

25

thereby secure the complete safety of such other person.

26

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

27

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

28

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

29

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

30

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

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1

before using force in his protection if the actor knows that

2

he can obtain complete safety in that way.

3

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

4

protect is obliged to retreat when in the dwelling or place

5

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

6

the actor is not obliged to retreat to any greater extent

7

than the person whom he seeks to protect.

8

Section 4.  Section 3903(a), (a.1) and (b) of Title 18 are

9

amended and the section is amended by adding a subsection to

10

read:

11

§ 3903.  Grading of theft offenses.

12

(a)  Felony of the second degree.--Theft constitutes a felony

13

of the second degree if:

14

(1)  The offense is committed during a manmade disaster,

15

a natural disaster or a war-caused disaster and constitutes a

16

violation of section 3921 (relating to theft by unlawful

17

taking or disposition), 3925 (relating to receiving stolen

18

property), 3928 (relating to unauthorized use of automobiles

19

and other vehicles) or 3929 (relating to retail theft).

20

(2)  The property stolen is a firearm.

21

(3)  In the case of theft by receiving stolen property,

22

the property received, retained or disposed of is a firearm

23

[and the receiver is in the business of buying or selling

24

stolen property].

25

(4)  The property stolen is any amount of anhydrous

26

ammonia.

27

(a.1)  Felony of the third degree.--Except as provided in

28

subsection (a) or (a.2), theft constitutes a felony of the third

29

degree if the amount involved exceeds $2,000, or if the property

30

stolen is an automobile, airplane, motorcycle, motorboat or

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1

other motor-propelled vehicle, or in the case of theft by

2

receiving stolen property, if the receiver is in the business of

3

buying or selling stolen property.

4

(a.2)  Felony of the first degree.--Theft constitutes a

5

felony of the first degree if, in the case of theft by receiving

6

stolen property, the property received, retained or disposed of

7

is a firearm and the receiver is in the business of buying or

8

selling stolen property.

9

(b)  Other grades.--Theft not within subsection (a) [or], 

10

(a.1) [of this section] or (a.2), constitutes a misdemeanor of

11

the first degree, except that if the property was not taken from

12

the person or by threat, or in breach of fiduciary obligation,

13

and:

14

(1)  the amount involved was $50 or more but less than

15

$200 the offense constitutes a misdemeanor of the second

16

degree; or

17

(2)  the amount involved was less than $50 the offense

18

constitutes a misdemeanor of the third degree.

19

* * *

20

Section 5.  The definition of "loaded" in section 6102 of

21

Title 18 is amended to read:

22

§ 6102.  Definitions.

23

Subject to additional definitions contained in subsequent

24

provisions of this subchapter which are applicable to specific

25

provisions of this subchapter, the following words and phrases,

26

when used in this subchapter shall have, unless the context

27

clearly indicates otherwise, the meanings given to them in this

28

section:

29

* * *

30

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

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1

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

2

chambers of the cylinder contain ammunition capable of being

3

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

4

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

5

said firearm which magazine contains such ammunition and has

6

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

7

where the container has multiple compartments, the same

8

compartment thereof as the firearm. If the magazine is inserted

9

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

10

provides for a complete and secure enclosure of the ammunition,

11

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

12

be deemed to be a separate compartment.

13

* * *

14

Section 6.  Section 6109(m.3) of Title 18 is amended to read:

15

§ 6109.  Licenses.

16

* * *

17

(m.3)  Construction.--Nothing in this section shall be

18

construed to [permit]:

19

(1)  Permit the hunting or harvesting of any wildlife

20

with a firearm or ammunition not otherwise permitted by 34

21

Pa.C.S. (relating to game).

22

(2)  Authorize any Commonwealth agency to regulate the

23

possession of firearms in any manner inconsistent with the

24

provisions of this title.

25

* * *

26

Section 7.  Title 42 is amended by adding a section to read:

27

§ 8340.2.  Civil immunity for use of force.

28

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

29

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

30

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

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1

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

2

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

3

other persons);

4

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

5

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

6

property);

7

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

8

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

9

(5)  consistent with the actor's special responsibility

10

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

11

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

12

special responsibility for care, discipline or safety of

13

others)

14

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

15

liability for personal injuries sustained by a perpetrator which

16

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

17

the use of force.

18

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

19

requirements of subsection (a) prevails in a civil action

20

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

21

the court shall award reasonable expenses to the actor.

22

Reasonable expenses shall include, but not be limited to,

23

attorney fees, expert witness fees, court costs and compensation

24

for loss of income.

25

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

26

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

27

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

28

507, 508 or 509.

29

Section 8.  This act shall take effect in 60 days.

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