I recently blogged about Pennsylvania’s Castle Doctrine (actually a Stand Your Ground Doctrine) in a previous article here and the good aspects of HB40. Now, I am going to review the bad and ugly aspects to HB40.
While HB40 overall is a vast improvement to what Pennsylvania had on the books, there are several bad and ugly aspects to this recent enactment. First, the definition of “dwelling,” in my opinion, is not broad enough. Although the definition now includes an attached porch, deck, or patio, nothing defines “attached.” While most can comprehend how a porch and deck would be attached to a house, I am not sure even I know how a patio is attached. While Blacks Law Dictionary does not define patio, http://www.dictionary.com defines it as “an area, usually paved, adjoining a house and used as an area for outdoor lounging, dining, etc.” or “a courtyard, especially of a house, enclosed by low buildings or walls.” With a porch or deck, typically, the porch or deck is attached to the house via bolts; however, with a patio, there is nothing to bolt it to. Rather, it is basically your yard area that is used for outdoor lounging and pleasure. While the argument can be made that “attached” only applies to porches, and not to decks and patios, given the U.S. Supreme Court’s decision in D.C. v. Heller and its determination of proper grammatical punctuation, it is unlikely that such an argument will prevail.
Furthermore, why didn’t the legislature include curtilage? One’s curtilage generally refers not only to the actual dwelling but also to the land occupied by the dwelling. Hence, one’s yard, driveway, and other such portions of his/her property, would be included. This means that while the individual is able to utilize the presumption listed in 2.1 in their “dwelling” that presumption would not apply in their yard or driveway, unless such constituted a patio. However, if you are in your car, in your driveway, you are entitled to the presumption, consistent with Section 2.1.
The next potential problem with HB40 is with the definition of “vehicle.” Vehicle is now defined as “A conveyance of any kind, whether or not motorized, that is designed to transport people or property.” So, while a person riding a bicycle is now entitled to the presumption if someone tries to unlawfully and forcefully take that bicycle, the person riding that bicycle, with a firearm, is required to have a License to Carry Firearms (LTCF), even if it would be openly displayed. That is because 18 Pa.C.S. 6106 makes it a crime to carry a firearm without an LTCF in a vehicle. However, PA’s Uniform Firearms Act does not define “vehicle” in it and this definition applies to 18 Pa.C.S. 501, not 18 Pa.C.S. 6101 et seq. So, the question arises whether this definition will be used in relation to PA’s Uniform Firearms Act. The courts have already held, in the DUI context, that bicycles, golf carts, and riding lawnmowers, are vehicles and I have always advised clients that they needed a LTCF in order to carry while on a bicycle or other such transportation device because of the uncertainty. Now, it would seem, the ability to argue that carrying while on a bicycle without a LTCF just became a much more difficult argument to make.
So now, moving on to Section 2.1, another concern arises. The presumption only applies in the vehicle context, if it is occupied. So while an individual being carjacked is entitled to the presumption, someone observing another breaking into his/her car, even if parked in his/her driveway (unless it constituted a patio), is not entitled to that same presumption and cannot likely use deadly force. This is drastically different from Stand Your Ground Doctrines in Florida and Texas, just to name a few.
But I am not yet done with the problems that arise in the vehicle context, given the definition of “vehicle” and Section 2.1. Who is entitled to the presumption in relation to an occupied vehicle? Is it only the person who is occupying the vehicle? Or, is anyone who acts against the perpetrator entitled to the presumption? Depending on the circumstances, and to some extent the court’s interpretation, the outcome could be drastically different.
For example, let’s say a lady is being carjacked and the perpetrator is in the process of removing her from the vehicle. Under this situation, consistent with Section 2.1, since she is being unlawfully and forcefully removed from her vehicle, against her will, the good samaritan would be entitled to the presumption. But, let’s take the example of the child that is in the car seat of the vehicle. The mother forgot her keys in the house and runs back into the house to grab them. At that time, the perpetrator jumps into the car and begins to hotwire it but takes no action to remove the child. Is the good samaritan, in this instance, who attempts to protect the child, entitled to the presumption?
While this would constitute kidnapping, which would make the use of deadly force justifiable, it is not clear that the presumption would apply. While the good samaritan would have no more a duty to retreat than the person whom he seeks to protect, what is noticeably absent from Section 3 is that the good samaritan is entitled to the same presumption, if any, as the one he seeks to protect. While logic would dictate that any such presumption should be transferred to the good samaritan, we unfortunately have some courts that seem to accept criminal conduct and feel bad for the perpetrators when they are harmed in the commission of a crime.
Moving on, let’s talk about the presumption exception of Section 2.2 that if the actor is involved in criminal activity or using the dwelling, residence, or occupied vehicle to further criminal activity, he/she is not entitled to the presumption. Criminal activity is defined as “conduct which is a misdemeanor or felony, is not justifiable under this chapter, and is related to the confrontation between the actor and the person against whom force is used.” While we obviously do not want to provide a safe-haven for drug dealers and the like, there has been a lot of concern voiced regarding whether a father could lose his right to the presumption because his kid has some marijuana in the house, which the father does not know about or condone. It is important to see that this definition requires three separate elements.
First, the criminal conduct must be of a misdemeanor level or greater. Although some have contended that zoning code violations could result in the loss of the presumption, this author is unaware of any zoning code violation that results in a misdemeanor or greater conviction. Nevertheless, ostensibly, it is possible. However, there are two more elements that must be met. The second element is that the conduct not be justifiable under this chapter. So, this prevents the individual from losing his/her presumption if he/she acts justifiably. Meaning, the criminal activity cannot be the shooting of the other person, if the shooting of the other person was justified.
Lastly, the conduct must be related to the confrontation between an actor and the person against whom force is used. This means that the conduct must have caused, resulted in, or be in some way related to, the use of deadly force. Hence, in the zoning code violation example, unless the deadly force was used against the zoning code officer, because he/she was there regarding the zoning code violations, a zoning code violation, even if a misdemeanor or greater, would not trigger the definition of criminal activity. Also, this means in the family example that the father would not lose his presumption for the use of deadly force, even if the perpetrator is trying to gain access because of the marijuana that the son has, since the conduct would not be related to the confrontation between the father and perpetrator. The father is protecting his family and has not been involved in the illegal conduct of the son.
So why do I say this is a bad aspect? Well, how many times did you have to read the above to understand what is acceptable? Furthermore, because of the complexity of the definition and its interplay, there is likely to be a challenges to the interpretation of this Section.
So now you know the good, the bad and the ugly of HB40. Let’s hope that no one ever has to utilize the presumptions and protections provided for in HB40, but to believe it won’t be utilized is to be living in a Utopian world.
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