Bill Text: PA SB273 | 2011-2012 | Regular Session | Amended

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Bill Title: In firearms and other dangerous articles, further providing for definitions and for sale or transfer of firearms; and, in particular rights and immunities, further providing for civil immunity for use of force and providing for declarative and injunctive relief and certain damages.

Spectrum: Moderate Partisan Bill (Republican 25-7)

Status: (Engrossed - Dead) 2012-06-29 - Removed from table [SB273 Detail]

Download: Pennsylvania-2011-SB273-Amended.html

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HOUSE AMENDED
PRIOR PRINTER'S NOS. 271, 769 PRINTER'S NO. 2243
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 273 Session of2011
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, WAUGH, McILHINNEY AND ARGALL, JANUARY 26, 2011
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 5, 2012
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. in firearms and other dangerous articles, further <--
providing for definitions and for sale or transfer of
firearms; and, in particular rights and immunities, further
providing for civil immunity for use of force and providing
for declarative and injunctive relief and certain damages.
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) (2) 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.
(3) Commonwealth law currently limits regulation of <--
firearms, ammunition and ammunition components by political
subdivisions in order to further the right guaranteed by
section 21 of Article I of the Constitution of Pennsylvania.
(4) Unlawful regulation of firearms, ammunition and
ammunition components by political subdivisions and the
threat of citation, prosecution or other legal process posed
by such regulation interfere with this right.
(5) Such interference with the right guaranteed by
section 21 of Article I of the Constitution of Pennsylvania
unduly inhibits law-abiding people from protecting
themselves, their families and others from intruders and
attackers and from other legitimate uses of constitutionally
protected arms, including hunting and sporting activities.
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.
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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
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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
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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
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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 has
unlawfully 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
has occurred.
(2.2) The presumption set forth in paragraph (2.1) does
not apply if:
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(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, who is not in illegal possession of a firearm 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
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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) The exception to the duty to retreat set forth
under paragraph (2.3) does not apply if 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.
(2.5) 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.
(2.6) 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
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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 related to 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-
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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
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[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:
Section 1. Section 6102 of Title 18 of the Pennsylvania <--
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Consolidated Statutes is amended by adding a definition 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.
"Ammunition components." <--
(1) The individual components of a fixed cartridge or
shotgun shell, including, but not limited to, casings,
primers and projectiles.
(2) A propellant used in ammunition.
(3) A projectile or propellant used in antique firearms
as defined in section 6118 (relating to antique firearms).
* * *
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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 in 18
Pa.C.S. § 509 (relating to use of force by persons with
special responsibility for care, discipline or safety of
others)
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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 2. Section 6111(h) of Title 18 is amended to read: <--
§ 6111. Sale or transfer of firearms.
* * *
(h) Subsequent violation penalty.--
(1) A second or subsequent violation of this section
shall be a felony of the second degree [and shall be
punishable by]. A person who at the time of sentencing has
been convicted of another offense under this section shall be
sentenced to a mandatory minimum sentence of imprisonment of
five years. A second or subsequent offense shall also result
in permanent revocation of any license to sell, import or
manufacture a firearm.
(2) Notice of the applicability of this subsection to
the defendant and reasonable notice of the Commonwealth's
intention to proceed under this section shall be provided
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prior to trial. The applicability of this section shall be
determined at sentencing. The court shall consider evidence
presented at trial, shall afford the Commonwealth and the
defendant an opportunity to present necessary additional
evidence and shall determine by a preponderance of the
evidence if this section is applicable.
(3) There shall be no authority for a court to impose on
a defendant to which this subsection is applicable a lesser
sentence than provided for in paragraph (1), to place the
defendant on probation or to suspend sentence. Nothing in
this section shall prevent the sentencing court from imposing
a sentence greater than that provided in this section.
Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing shall not supersede the mandatory
sentences provided in this section.
(4) If a sentencing court refuses to apply this
subsection where applicable, the Commonwealth shall have the
right to appellate review of the action of the sentencing
court. The appellate court shall vacate the sentence and
remand the case to the sentencing court for imposition of a
sentence in accordance with this section if it finds that the
sentence was imposed in violation of this subsection.
(5) For the purposes of this subsection, a person shall
be deemed to have been convicted of another offense under
this section whether or not judgment of sentence has been
imposed for that violation.
* * *
Section 3. Section 8340.2 of Title 42, added June 28, 2011
(P.L.48, No.10), is amended to read:
§ 8340.2. Civil immunity for use of force or persons adversely
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affected by unlawful regulation of firearms.
(a) General rule for use of force.--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.
(a.1) General rule for unlawful regulation of firearms.-–A
person adversely affected by any manner of regulation
promulgated or enforced in violation of 18 Pa.C.S. § 6120(a)
(relating to limitation on the regulation of firearms and
ammunition) or 53 Pa.C.S. § 2962(g) (relating to limitation on
municipal powers) may seek declarative and injunctive relief and
the actual and consequential damages attributable to the
violation in an appropriate court.
(b) Attorney fees and costs.--
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(1) 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.]
(2) The court shall award reasonable expenses to a
person adversely affected if an action under subsection (a.1)
results in:
(i) a final determination by a court in favor of the
person adversely affected; or
(ii) rescission or repeal of the challenged manner
of regulation or enforcement after suit has been filed
under subsection (a.1) but prior to a final determination
by a court.
(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.] Definitions.--As used in this section, the
following words and phrases shall have the meanings given to
them in this subsection unless the context clearly indicates
otherwise:
"Perpetrator." A person against whom an actor is justified
in using force as provided by 18 Pa.C.S. § 505, 506, 507, 508 or
509.
"Person adversely affected." Any of the following:
(1) A person who has standing under the laws of this
Commonwealth to bring an action under subsection (a.1).
(2) A resident of this Commonwealth who may legally
20110SB0273PN2243 - 17 -
possess a firearm under the laws of this Commonwealth and the
United States and either:
(i) is subject to any manner of regulation alleged
to be promulgated or enforced in violation of 18 Pa.C.S.
§ 6120(a) or of 53 Pa.C.S. § 2962(g) whether or not
specific enforcement action has been initiated or
threatened against the person or another person; or
(ii) would be, if the person were present in the
political subdivision in question, subject to any manner
of regulation alleged to be promulgated or enforced in
violation of 18 Pa.C.S. § 6120(a) or of 53 Pa.C.S. §
2962(g) whether or not specific enforcement action has
been initiated or threatened against the person or
another person.
(3) A membership organization, the members of which
include a person described under paragraph (1) or (2).
"Reasonable expenses." The term includes, but is not limited
to, attorney fees, expert witness fees, court costs and
compensation for loss of income.
Section 8 4. This act shall take effect in 60 days. <--
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