I recently blogged about Pennsylvania’s Castle Doctrine (actually a Stand Your Ground Doctrine) in a previous article here. Now, I am going to review the goods aspects to HB40. It the next article, I will review the bad and ugly aspects to HB40.
First, it is important to understand that a Castle Doctrine refers to the ability of one to defend his home. Pennsylvania’s laws prior to enacting HB40 provided that one could use deadly force in one’s home without a duty to retreat, but there did need to be a threat of death or serious bodily injury. Furthermore, under the previous laws, an individual did have a duty to retreat, if he/she could do such safely, when outside one’s home.
A Stand Your Ground Doctrine, on the other hand, provides that the individual does not have a duty to retreat, including in public. There are, however, a number of different Stand Your Ground Doctrine variations on the use of force in particular circumstances; for instance, whether or not deadly force can be used against a fleeing thief, who is in possession of your tv.
Now that the differences have been explained, let’s look at good aspects to HB40. First, and foremost, it is important to note what the Congress found in enacting HB40: “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.” Another interesting finding was that not only residents but also visitors “have a right to remain unmolested within their homes or vehicles.”
One of the first good legal aspects to HB40 the definition of a “dwelling” was modified to include an attached porch, deck, or patio. While I believe this language should have been even more broad to include the curtilage, this is definitely a vast improvement, since under the prior law, it could be contended that a porch, deck or patio was not included. This further defines a dwelling, so that the Courts are not left to their own devices.
Another definition that was added was the definition of a “vehicle.” A vehicle is now defined as, “A conveyance of any kind, whether or not motorized, that is designed to transport people or property.” While this also helps prevent the Courts from finding their own definition of a vehicle, as will be shown in the next article, this also could result in problems for someone who is “openly” carrying a firearm, while riding a bicycle, as now that would constitute concealed carry.
So now, moving on to the real benefit of HB40, Section 2.1 adds a presumption, whereby an individual is to be presumed to be acting reasonable in the use of deadly force if 1. “the person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom force is used is or is attempting to unlawfully and forcefully remove another against that other’s will from the dwelling, residence or occupied vehicle” AND 2. the person using deadly force “knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.” It is important to note that this presumption only applies to the use of force in a dwelling, residence, or occupied vehicle (unless the conduct falls within the exceptions of Section 2.2, which is discussed below) and not to the use of force in public.
It is important to note that both elements must be met; however, this author is unsure when the second element would come in to play, as it seems duplicative. If the person is going to use deadly force that person is obviously going to know that the perpetrator is attempting to enter or has gained entry into the house. So, it would seem that the second element is there to prevent someone from using deadly force against someone who is lawfully in the dwelling or vehicle; however, the problem with that position or argument is that the first element requires that the perpetrator be both unlawfully and forcefully entering or have entered the dwelling or vehicle and the exceptions in Section 2.2 to the presumption state that if the person can lawfully be in the dwelling, residence, or occupied vehicle, then the presumption does not apply. Hence, if the individual was lawfully entitled to be in the dwelling or vehicle, the first element could not be met and the exceptions exclude the presumption from applying. Accordingly, element two seems duplicative. While I can of course come up with an example where element two would provide a different outcome (Where a hunter, hunting on his own property, fires at a deer, missing the deer, and resulting in the bullet entering his/her dwelling and striking the perpetrator), the likelihood of such occurring and the legislator being concerned with such, seems somewhat outlandish. Nevertheless, both elements must be met.
Of course, like almost every statute or law, there are exceptions to the presumption. Section 2.2 deals with exceptions, where the presumption in Section 2.1 does not apply, even if the two elements are met. The exceptions are, of course, 1. where the person against whom force is used has a lawful right to be in that dwelling, residence, or occupied vehicle; 2. where the person being removed is the child, grandchild or otherwise in the lawful custody of the person against whom force is used; 3. the person using deadly force is engaged in criminal activity or is using the dwelling, residence or occupied vehicle to further criminal activity; and 4. where the person against whom force is used is a peace officer, acting in his official capacity, and the person using force knew or should have known that the person was a peace officer. These exceptions are extremely important and self-evident as to why they have been included.
Section 2.3 deals with the right of the individual not to retreat in public and the ability to use deadly force, so long as, 1. the actor is not engaged in criminal activity; 2. the actor is not in illegal possession of a firearm; 3. is attacked where Pennsylvania would have previously required them to retreat; 4. had a right to be in the place where attacked; 5. the actor believes it immediately necessary to protect him/herself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat; AND 6. the person against whom force is used uses or displays a firearm, or replica thereof, or any other weapon readily or apparently capable of lethal use. Later, under Section 3, the legislature declared that an individual, who fits the above criteria, also has no duty to retreat when defending one he seeks to protect.
Once again, even Section 2.3 has an exception and that is for a peace officer, like the exception to Section 2.1. Section 2.5 then goes on to deal with the “intent” element. Specifically, where an individual unlawfully and forcefully enters or has entered a dwelling, residence, or occupied vehicle, that individual is presumed to be doing so with the intent to commit an act resulting in death, serious bodily injury, kidnapping or sexual force by force or threat. Section 2.6 then goes on to prevent a perpetrator from being able to use deadly force against the officer or individual effecting the arrest or preventing escape.
It should also be noted that for all of Section 2, the legislature added a definition of “criminal activity,” which is defined as “conduct which is a misdemeanor or felony, is not justifiable under this chapter and is related to the confrontation between an actor and the person against whom force is used.”
Another good aspect to this legislation is that it also amended several other portions of the crimes code. Specifically, it made it a Felony of the first degree, “if, in the case of theft by receiving stolen property, the property received retained or disposed of is a firearm and the receiver is in the business of buying or selling stolen property.” Furthermore, if one of the elements of that section cannot be shown, such as the receiver being in the business, a conviction would result in a misdemeanor of the first degree.
One of the great aspects to this legislation was the modification to the Uniform Firearms Act definition of “Loaded.” Additional language was added that, “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.” The reason this is important is that individual have been stopped and arrested for having a loaded firearm, when the firearm was in a soft case, unloaded, but there were loaded magazines on the outside pouch of the soft case. This now makes it clear that having a loaded magazine in a complete and secure pouch, on the outside of a soft case, does NOT constitute the firearm being loaded.
So, by now, you should be saying wow, this has given us a lot of benefit, but the biggest benefit hasn’t yet been stated. Under Section 7, the legislature added civil immunity, when the individual lawfully uses deadly force, as provided for in this legislation. Moreover, if you are sued and prevail by showing that you are entitled to civil immunity, the legislator has required that the court award reasonable attorney fees, reasonable expenses and costs. This includes reimbursement of expert fees and compensation for loss of income. While the courts ultimately have the final say in what is “reasonable,” at least the legislature has provided that they must award these fees, instead of “may” award theses fees.
For more information on Prince Law Offices, P.C. and the areas of firearms law that Attorney Joshua Prince handles, please see our sitehere.