Alloway |
A criminal homicide trial in Franklin County (Pa.) Court this week ended in a guilty verdict for voluntary manslaughter, but it left one state legislator wondering how the outcome could've been affected by a bill he has introduced.
A jury of eight men and four women found Michael Harrigan, 30, guilty of voluntary manslaughter Thursday. It found him not guilty of first-degree and third-degree murder.
Harrigan shot his Blue Ridge Summit, Pa., neighbor May 27, 2010. In crime scene photos displayed during the trial, Steven Wetzel's lifeless body was lying on the street with a trail of blood stretching toward Harrigan's grass.
During closing arguments, the prosecution and defense addressed the "duty to retreat" in Pennsylvania law. Under that clause, a person must attempt to retreat from an attacker posing a threat of death or serious bodily injury before using deadly force. The clause applies unless the attacker is in the person's home or workplace.
State Sen. Richard Alloway II, R-Franklin/Adams/York, has reintroduced a bill that would expand the Pennsylvania "Castle Doctrine" — an English Common Law principle so named because it gives a person the right to use deadly force to protect his home — or "castle" — from attack.
That legislation would remove the "duty to retreat" and allow someone to stop a violent criminal in any place that person has a right to be.
The measure passed the Pennsylvania General Assembly last year but was vetoed by then-Gov. Ed Rendell.
"It's scheduled to be voted out of Judiciary Committee on March 1. I've spoken to my leadership, and they said they'll fast-track it because it's important," Alloway said.
Alloway said he read coverage about the Harrigan trial and thought immediately of his bill.
"My reaction was, 'How would this trial be proceeding if we had the Castle Doctrine?'" Alloway said.
Defense attorney Scott Rolle told the jury Harrigan did not want to kill anyone and wanted to take care of his family in peace. Wetzel had approached the Harrigan home twice in what was called a "drunk" and "belligerent" manner by both sides.
"At least in this jurisdiction, if you're a homeowner and you have a weapon in your house and a drunken, belligerent man ... says he fights to finish ... daggonit, you better not do anything about it, and you better have your defense attorney's card in your pocket," Rolle said.
Rolle asked the jury members what they'd do in the situation and asked them to not serve as "Monday morning quarterbacks."
"We've had four days in this courtroom to decide if that split-second decision was right," he said.
The comment about serving as "Monday morning quarterbacks" seemed to irk Franklin County Assistant District Attorney Jeremiah Zook, who referred to it repeatedly in his own closing arguments.
"It is offensive to me and it should be to you for someone to stand before you and say no one should Monday morning quarterback what the defendant did. A man died in a street of Franklin County. ... It's not Monday morning quarterbacking. It's our system of justice," Zook said.
The National Rifle Association has supported expanding the Castle Doctrine in Pennsylvania.
"We've been very active in states across the country where the laws are weak in the area of self-defense," said John Hohenwarter, state director.
There have been cases where someone who acts in self-defense ends up in a courtroom facing either criminal charges or a civil lawsuit, Hohenwarter said.
Expanding the Castle Doctrine might not prevent that person from being drawn into a courtroom, but it could give him or her better protection, he said.
"I'm hoping to get it to Gov. (Tom) Corbett's desk as soon as possible," Hohenwarter said.
The Pennsylvania District Attorneys Association commended the former governor for vetoing the bill last year.
"Pennsylvania needs a law that supports law-abiding citizens who act in self-defense, not one that gives thugs a new line of defense to escape the law. ... We support the protection of civil liberties and Second Amendment rights. What we don't support is the shoot first, ask questions later environment this bill would have created in Pennsylvania," the organization said in a news release.
Pennsylvania citizens already have the right to defend themselves in their homes, the news release said.
"It is rare to find a case where someone who was legitimately defending themselves ended up being prosecuted," the release said.
Text of bill
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL No. 273
Session of 2011
INTRODUCED BY ALLOWAY, WOZNIAK, ROBBINS, FONTANA, EICHELBERGER, ORIE, FOLMER, PILEGGI, BREWSTER, SMUCKER, SOLOBAY, RAFFERTY, YAW, VOGEL, SCARNATI, BOSCOLA, STACK, PIPPY, MENSCH, TOMLINSON, BROWNE, WARD, YUDICHAK, D. WHITE, KASUNIC, GORDNER, PICCOLA, BAKER, BRUBAKER AND WAUGH, JANUARY 26, 2011
REFERRED TO JUDICIARY, JANUARY 26, 2011
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, for grading of theft offenses 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.
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.
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(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 conditions exist:
(i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or hasunlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the 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.
(ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or hasoccurred.
(2.2) The presumption set forth in paragraph (2.1) does not apply if:
(i) the person against whom the 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 force is used is a peace officer acting in the performance of his official duties and the actor 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 would have a duty to retreat under paragraph (2)(ii), has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:
(i) the actor has a right to be in the place where he was attacked;
(ii) 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; and
(iii) the person against whom the force is used displays or otherwise uses:
(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms); or
(B) any other weapon readily or apparently capable of lethal use.
(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 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. Section 3903(a), (a.1) and (b) of Title 18 are amended and the section is amended by adding a subsection to read:
§ 3903. Grading of theft offenses.
(a) Felony of the second degree. Theft constitutes a felony of the second degree if:
(1) The offense is committed during a manmade disaster, a natural disaster or a war-caused disaster and constitutes a violation of section 3921 (relating to theft by unlawful taking or disposition), 3925 (relating to receiving stolen property), 3928 (relating to unauthorized use of automobiles and other vehicles) or 3929 (relating to retail theft).
(2) The property stolen is a firearm.
(3) 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].
(4) The property stolen is any amount of anhydrous ammonia.
(a.1) Felony of the third degree. Except as provided in subsection (a) or (a.2), theft constitutes a felony of the third degree if the amount involved exceeds $2,000, or if the property stolen is an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.
(a.2) Felony of the first degree. Theft constitutes 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.
(b) Other grades. Theft not within subsection (a) [or], (a.1) [of this section] or (a.2), constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.
* * *
Section 5. 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 6. Section 6109(m.3) of Title 18 is amended to read:
§ 6109. Licenses.
* * *
(m.3) Construction. Nothing in this section shall be construed to [permit]:
(1) 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) Authorize any Commonwealth agency to regulate the possession of firearms in any manner inconsistent with the provisions of this title.
* * *
Section 7. 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 in18 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 in 18 Pa.C.S. § 505, 506, 507, 508 or 509.
Section 8. This act shall take effect in 60 days.
