PRINTER'S NO.  263

  

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 AND WHITE, JANUARY 31, 2011

  

  

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 31, 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:

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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

 


1

attackers without fear of prosecution or civil action for

2

acting in defense of themselves and others.

3

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

4

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

5

castle.

6

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

7

Pennsylvania guarantees that the "right of the citizens to

8

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

9

questioned."

10

(4)  Persons residing in or visiting this Commonwealth

11

have a right to expect to remain unmolested within their

12

homes or vehicles.

13

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

14

personal safety to a criminal, nor should a person be

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required to needlessly retreat in the face of intrusion or

16

attack outside the person's home or vehicle.

17

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

20

Consolidated Statutes is amended to read:

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§ 501.  Definitions.

22

Subject to additional definitions contained in subsequent

23

provisions of this chapter which are applicable to specific

24

provisions of this chapter, the following words and phrases,

25

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

26

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

27

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

28

"reasonable belief."

29

"Correctional institution."  Any penal institution,

30

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

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1

correction, or other institution for the incarceration or

2

custody of persons under sentence for offenses or awaiting trial

3

or sentence for offenses.

4

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

5

Department of Corrections whose principal duty is the care,

6

custody and control of inmates of a penal or correctional

7

institution operated by the Department of Corrections. 

8

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

9

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

10

bodily injury.

11

"Dwelling."  Any building or structure, including any

12

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

13

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

14

of lodging of the actor.

15

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

16

public employment is vested by law with a duty to maintain

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

class.

25

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

26

temporarily or permanently, or visits as an invited guest.

27

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

28

employed without the consent of the person against whom it is

29

directed and the employment of which constitutes an offense or

30

actionable tort or would constitute such offense or tort except

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1

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

2

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

3

amounting to a privilege to use the force. Assent constitutes

4

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

5

otherwise is legally effective, except assent to the infliction

6

of death or serious bodily injury.

7

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

8

motorized, that is designed to transport people or property.

9

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

10

section is amended by adding a subsection to read:

11

§ 505.  Use of force in self-protection.

12

* * *

13

(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

18

unlawful; or

19

(ii)  to resist force used by the occupier or

20

possessor of property or by another person on his behalf,

21

where the actor knows that the person using the force is

22

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

23

except that this limitation shall not apply if:

24

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

25

performance of his duties or a person lawfully

26

assisting him therein or a person making or assisting

27

in a lawful arrest;

28

(B)  the actor has been unlawfully dispossessed

29

of the property and is making a reentry or recaption

30

justified by section 507 of this title (relating to

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1

use of force for the protection of property); or

2

(C)  the actor believes that such force is

3

necessary to protect himself against death or serious

4

bodily injury.

5

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

6

this section unless the actor believes that such force is

7

necessary to protect himself against death, serious bodily

8

injury, kidnapping or sexual intercourse compelled by force

9

or threat; nor is it justifiable if:

10

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

11

serious bodily injury, provoked the use of force against

12

himself in the same encounter; or

13

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

14

of using such force with complete safety by retreating

15

[or by surrendering possession of a thing to a person

16

asserting a claim of right thereto or by complying with a

17

demand that he abstain from any action which he has no

18

duty to take], except [that:

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

20

his dwelling or place of work, unless he was the

21

initial aggressor or is assailed in his place of work

22

by another person whose place of work the actor knows

23

it to be[; and

24

(B)  a public officer justified in using force in

25

the performance of his duties or a person justified

26

in using force in his assistance or a person

27

justified in using force in making an arrest or

28

preventing an escape is not obliged to desist from

29

efforts to perform such duty, effect such arrest or

30

prevent such escape because of resistance or

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1

threatened resistance by or on behalf of the person

2

against whom such action is directed].

3

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

4

an actor is presumed to have a reasonable belief that deadly

5

force is immediately necessary to protect himself against

6

death, serious bodily injury, kidnapping or sexual

7

intercourse compelled by force or threat if both of the

8

following conditions exist:

9

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

10

the process of unlawfully and forcefully entering, or has 

11

unlawfully and forcefully entered and is present within,

12

a dwelling, residence or occupied vehicle; or the person

13

against whom the force is used is or is attempting to

14

unlawfully and forcefully remove another against that

15

other's will from the dwelling, residence or occupied

16

vehicle.

17

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

18

the unlawful and forceful entry or act is occurring or

19

has occurred.

20

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

21

not apply if:

22

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

23

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

24

dwelling, residence or vehicle, such as an owner or

25

lessee;

26

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

27

grandchild or is otherwise in the lawful custody or under

28

the lawful guardianship of the person against whom the

29

protective force is used;

30

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

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1

is using the dwelling, residence or occupied vehicle to

2

further a criminal activity; or

3

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

4

peace officer acting in the performance of his official

5

duties and the actor using force knew or reasonably

6

should have known that the person was a peace officer.

7

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

8

activity, and who is attacked in any place where the actor

9

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

10

duty to retreat and has the right to stand his ground and use

11

force, including deadly force, if:

12

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

13

he was attacked;

14

(ii)  the actor believes it is immediately necessary

15

to do so to protect himself against death, serious bodily

16

injury, kidnapping or sexual intercourse by force or

17

threat; and

18

(iii)  the person against whom the force is used

19

displays or otherwise uses:

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

21

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

22

offenses committed with firearms); or

23

(B)  any other weapon readily or apparently

24

capable of lethal use.

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

26

applies, a person who unlawfully and by force enters or

27

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

28

vehicle or removes or attempts to remove another against that

29

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

30

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

2

injury; or

3

(ii)  kidnapping or sexual intercourse by force or

4

threat.

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

6

performance of his duties or a person justified in using

7

force in his assistance or a person justified in using force

8

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

9

desist from efforts to perform such duty, effect such arrest

10

or prevent such escape because of resistance or threatened

11

resistance by or on behalf of the person against whom such

12

action is directed.

13

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

14

this subsection,] otherwise required by this subsection, a

15

person employing protective force may estimate the necessity

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thereof under the circumstances as he believes them to be

17

when the force is used, without retreating, surrendering

18

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

22

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

23

justifiable under this chapter and is the proximate cause of the

24

confrontation between an actor and the person against whom force

25

is used.

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

27

§ 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

29

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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1

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

2

using such force to protect himself against the injury he

3

believes to be threatened to the person whom he seeks to

4

protect;

5

(2)  under the circumstances as the actor believes them

6

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

7

in using such protective force; and

8

(3)  the actor believes that his intervention is

9

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

13

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

14

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

15

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

16

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

17

thereby secure the complete safety of such other person.

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

19

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

20

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

21

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

22

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

23

before using force in his protection if the actor knows that

24

he can obtain complete safety in that way.

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

26

protect is obliged to retreat when in the dwelling or place

27

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

28

the actor is not obliged to retreat to any greater extent

29

than the person whom he seeks to protect.

30

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

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1

amended and the section is amended by adding a subsection to

2

read:

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§ 3903.  Grading of theft offenses.

4

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

5

of the second degree if:

6

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

7

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

8

violation of section 3921 (relating to theft by unlawful

9

taking or disposition), 3925 (relating to receiving stolen

10

property), 3928 (relating to unauthorized use of automobiles

11

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

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(2)  The property stolen is a firearm.

13

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

14

the property received, retained or disposed of is a firearm

15

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

16

stolen property].

17

(4)  The property stolen is any amount of anhydrous

18

ammonia.

19

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

20

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

21

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

22

stolen is an automobile, airplane, motorcycle, motorboat or

23

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

24

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

25

buying or selling stolen property.

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

27

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

28

stolen property, the property received, retained or disposed of

29

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

30

selling stolen property.

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

2

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

3

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

4

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

5

and:

6

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

7

$200 the offense constitutes a misdemeanor of the second

8

degree; or

9

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

10

constitutes a misdemeanor of the third degree.

11

* * *

12

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

13

Title 18 is amended to read:

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§ 6102.  Definitions.

15

Subject to additional definitions contained in subsequent

16

provisions of this subchapter which are applicable to specific

17

provisions of this subchapter, the following words and phrases,

18

when used in this subchapter shall have, unless the context

19

clearly indicates otherwise, the meanings given to them in this

20

section:

21

* * *

22

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

23

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

24

chambers of the cylinder contain ammunition capable of being

25

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

26

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

27

said firearm which magazine contains such ammunition and has

28

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

29

where the container has multiple compartments, the same

30

compartment thereof as the firearm. If the magazine is inserted

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1

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

2

provides for a complete and secure enclosure of the ammunition,

3

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

4

be deemed to be a separate compartment.

5

* * *

6

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

7

§ 6109.  Licenses.

8

* * *

9

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

10

construed to [permit]:

11

(1)  Permit the hunting or harvesting of any wildlife

12

with a firearm or ammunition not otherwise permitted by 34

13

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

14

(2)  Authorize any Commonwealth agency to regulate the

15

possession of firearms in any manner inconsistent with the

16

provisions of this title.

17

* * *

18

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

19

§ 8340.2.  Civil immunity for use of force.

20

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

21

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

22

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

23

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

24

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

25

other persons);

26

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

27

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

28

property);

29

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

30

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

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1

(5)  consistent with the actor's special responsibility

2

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

3

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

4

special responsibility for care, discipline or safety of

5

others)

6

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

7

liability for personal injuries sustained by a perpetrator which

8

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

9

the use of force.

10

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

11

requirements of subsection (a) prevails in a civil action

12

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

13

the court shall award reasonable expenses to the actor.

14

Reasonable expenses shall include, but not be limited to,

15

attorney fees, expert witness fees, court costs and compensation

16

for loss of income.

17

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

18

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

19

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

20

507, 508 or 509.

21

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

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