THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY ALLOWAY, SCARNATI, KASUNIC, ROBBINS, EICHELBERGER, BROWNE, FOLMER, PIPPY, RAFFERTY, VOGEL, WOZNIAK, WONDERLING, BOSCOLA, ORIE, BAKER, D. WHITE, WAUGH, PILEGGI, BRUBAKER, ARGALL, PICCOLA, SMUCKER, McILHINNEY, CORMAN, TOMLINSON, YAW, WARD, STOUT, MUSTO AND LOGAN, MAY 5, 2009

REFERRED TO JUDICIARY, MAY 5, 2009  

AN ACT

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

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, in general principles of justification, further

providing for definitions, for use of force in self-

protection, for use of force for the protection of other

persons and for licenses to carry firearms; and providing for

civil immunity for use of force.

The General Assembly finds that:

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

themselves, their families and others from intruders and

attackers without fear of prosecution or civil action for

acting in defense of themselves and others.

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

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

castle.

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

Pennsylvania guarantees that the "right of the citizens to

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

questioned."

(4)  Persons residing in or visiting this Commonwealth

have a right to expect to remain unmolested within their

homes or vehicles.

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

personal safety to a criminal, nor should a person be

required to needlessly retreat in the face of intrusion or

attack outside the person's home or vehicle.

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

6109, inconsistent statutory and regulatory language appears

to limit the ability of law enforcement officers and properly

licensed individuals to carry a firearm throughout this

Commonwealth.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 501 of Title 18 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 501.  Definitions.

Subject to additional definitions contained in subsequent

provisions of this chapter which are applicable to specific

provisions of this chapter, the following words and phrases,

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

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

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

"reasonable belief."

"Correctional institution."  Any penal institution,

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

correction, or other institution for the incarceration or

custody of persons under sentence for offenses or awaiting trial

or sentence for offenses.

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

Department of Corrections whose principal duty is the care,

custody and control of inmates of a penal or correctional

institution operated by the Department of Corrections.

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

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

bodily injury.

"Dwelling."  Any building or structure, including any

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

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

of lodging of the actor.

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

public employment is vested by law with a duty to maintain

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

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

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

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

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

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

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

class.

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

temporarily or permanently, or visits as an invited guest.

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

employed without the consent of the person against whom it is

directed and the employment of which constitutes an offense or

actionable tort or would constitute such offense or tort except

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

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

amounting to a privilege to use the force. Assent constitutes

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

otherwise is legally effective, except assent to the infliction

of death or serious bodily injury.

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

motorized, which is designed to transport people or property.

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

section is amended by adding a subsection to read:

§ 505.  Use of force in self-protection.

* * *

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

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

section:

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

being made by a peace officer, although the arrest is

unlawful; or

(ii)  to resist force used by the occupier or

possessor of property or by another person on his behalf,

where the actor knows that the person using the force is

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

except that this limitation shall not apply if:

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

performance of his duties or a person lawfully

assisting him therein or a person making or assisting

in a lawful arrest;

(B)  the actor has been unlawfully dispossessed

of the property and is making a reentry or recaption

justified by section 507 of this title (relating to

use of force for the protection of property); or

(C)  the actor believes that such force is

necessary to protect himself against death or serious

bodily injury.

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

this section unless the actor believes that such force is

necessary to protect himself against death, serious bodily

injury, kidnapping or sexual intercourse compelled by force

or threat; nor is it justifiable if:

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

serious bodily injury, provoked the use of force against

himself in the same encounter; or

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

of using such force with complete safety by retreating

[or by surrendering possession of a thing to a person

asserting a claim of right thereto or by complying with a

demand that he abstain from any action which he has no

duty to take], except [that:

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

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

initial aggressor [or is assailed in his place of

work by another person whose place of work the actor

knows it to be; and

(B)  a public officer justified in using force in

the performance of his duties or a person justified

in using force in his assistance or a person

justified in using force in making an arrest or

preventing an escape is not obliged to desist from

efforts to perform such duty, effect such arrest or

prevent such escape because of resistance or

threatened resistance by or on behalf of the person

against whom such action is directed].

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

an actor is presumed to have a reasonable belief that deadly

force is immediately necessary to protect himself against

death, serious bodily injury, kidnapping or sexual

intercourse compelled by force or threat if both of the

following exist:

(i)  The person against whom the protective force was

used was in the process of unlawfully and forcefully

entering, or had unlawfully and forcefully entered, a

dwelling, residence or occupied vehicle; or the person

against whom the protective force was used had unlawfully

and forcefully removed or was attempting to unlawfully

and forcefully remove another against that other's will

from the dwelling, residence or occupied vehicle.

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

unlawful and forceful entry or act was occurring or had

occurred.

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

not apply if:

(i)  the person against whom the protective force is

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

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

lessee;

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

grandchild or is otherwise in the lawful custody or under

the lawful guardianship of the person against whom the

protective force is used;

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

is using the dwelling, residence or occupied vehicle to

further a criminal activity; or

(iv)  the person against whom the protective force is

used is a peace officer acting in the performance of his

official duties and the peace officer identified himself

or the person using force knew or reasonably should have

known that the person was a peace officer.

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

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

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

ground and use protective force, including deadly force, if

the actor believes it is immediately necessary to do so to

protect himself against death, serious bodily injury,

kidnapping or sexual intercourse by force or threat.

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

applies, a person who unlawfully and by force enters or

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

vehicle or removes or attempts to remove another against that

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

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

(i)  an act resulting in death or serious bodily

injury; or

(ii)  kidnapping or sexual intercourse by force or

threat.

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

performance of his duties or a person justified in using

force in his assistance or a person justified in using force

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

desist from efforts to perform such duty, effect such arrest

or prevent such escape because of resistance or threatened

resistance by or on behalf of the person against whom such

action is directed.

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

this subsection,] otherwise required by this subsection, a

person employing protective force may estimate the necessity

thereof under the circumstances as he believes them to be

when the force is used, without retreating, surrendering

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

do or abstaining from any lawful action.

* * *

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

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

justifiable under this chapter and is the proximate cause of the

confrontation between an actor and the person against whom

protective force is used.

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

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

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

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

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

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

using such force to protect himself against the injury he

believes to be threatened to the person whom he seeks to

protect;

(2)  under the circumstances as the actor believes them

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

in using such protective force; and

(3)  the actor believes that his intervention is

necessary for the protection of such other person.

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

[of this section:

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

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

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

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

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

thereby secure the complete safety of such other person.

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

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

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

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

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

before using force in his protection if the actor knows that

he can obtain complete safety in that way.

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

protect is obliged to retreat when in the dwelling or place

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

, the actor is not obliged to retreat to any greater extent

than the person whom he seeks to protect.

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

Title 18 is amended to read:

§ 6102.  Definitions.

Subject to additional definitions contained in subsequent

provisions of this subchapter which are applicable to specific

provisions of this subchapter, the following words and phrases,

when used in this subchapter shall have, unless the context

clearly indicates otherwise, the meanings given to them in this

section:

* * *

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

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

chambers of the cylinder contain ammunition capable of being

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

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

said firearm which magazine contains such ammunition and has

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

where the container has multiple compartments, the same

compartment thereof as the firearm. If the magazine is inserted

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

provides for a complete and secure enclosure of the ammunition,

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

be deemed to be a separate compartment.

* * *

Section 5.  Section 6109(m.3) of Title 18 is amended and the

section is amended by adding a subsection to read:

§ 6109.  Licenses.

* * *

(m.3)  Construction.--

(1)  Nothing in this section shall be construed to permit

the hunting or harvesting of any wildlife with a firearm or

ammunition not otherwise permitted by 34 Pa.C.S. (relating to

game).

(2)  Nothing in this section shall be construed to:

(i)  Permit the hunting or harvesting of any wildlife

with a firearm or ammunition not otherwise permitted by

34 Pa.C.S.

(ii)  Authorize any Commonwealth agency to regulate

the possession of firearms in any manner inconsistent

with the provisions of this title.

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

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

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

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

regulations promulgated under that act, a firearm may be carried

as provided in subsection (a) by:

(1)  a law enforcement officer whose current

identification as a law enforcement officer shall be

construed as a valid license to carry a firearm; or

(2)  any licensee.

* * *

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

§ 8340.2.  Civil immunity for use of force.

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

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

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

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

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

other persons);

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

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

property);

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

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

(5)  consistent with the actor's special responsibility

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

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

special responsibility for care, discipline or safety of

others);

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

liability for personal injuries sustained by a perpetrator which

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

the use of force.

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

requirements of subsection (a) prevails in a civil action

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

the court shall award reasonable expenses to the actor.

Reasonable expenses shall include, but not be limited to,

attorney fees, expert witness fees, court costs and compensation

for loss of income.

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

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

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

507, 508 or 509.

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