PAand WV laws seem pretty vague and/or weakfrom the perspective ofpeople who are protecting themselves in their "castle." MD is OK.

The solution to this vaguness/weakness is the introduction of a "presumption" that an intruder to the home is about to commit a felonious act or harm the residents. Also,immunity fromprosecution or civil suit is a desirable addition toeach state's laws regarding deadly force use in the home.Some states already have this and more will get it, I expect. The NRA supports these kinds of changes and has been the leader in gun rights advocacy in this area.If you live in PA or WV, support the NRA andpressure thepoliticos thatcanmake thenecessarychanges to state law.




July 8, 2007
There are times it's OK to use force
By PEPPER BALLARD
pepperb@herald-mail.com

TRI-STATE-Add legal savvy to the list of defenses homeowners should have on hand if confronted inside their homes by an intruder.

Laws governing the circumstances under which a person can claim self-defense and avoid prosecution when they have used deadly force to protect themselves and/or family members during a home invasion vary from state to state.

In Maryland, residents have "no duty to retreat" from threatening situations inside their homes before using deadly force as protection from harm to themselves or their families, Washington County State's Attorney Charles P. Strong Jr. said.

No charges have been filed in a July 1 incident in which a man carrying a rifle rushed into the apartment of two Youngstoun Court tenants and was shot and stabbed. The 32-year-old man died.

"All the actions of the residents were done in self-defense," Strong said.

Strong said since each case differs, the circumstances in each case must be weighed for possible prosecution individually. He said he could recall no recent Washington County case in which a homeowner who used deadly force was charged in the death of an intruder.

If a person does get charged in Maryland in the death of an intruder, he or she can raise at trial "defense of habitation," Strong said.

Under the "defense of habitation - deadly force" jury instruction, Strong said, a judge would instruct a Maryland jury that they must find the defendant in such a trial not guilty if the defendant "actually believed that (the intruder) was committing (or was about to commit)" a crime in their home, if the defendant's belief was "reasonable" and if the defendant "used no more force than was reasonably necessary to defend" against the intruder's actions.

One step back

Firing a gun or using a weapon against a burglar or robber inside a West Virginia home is an option only if the homeowner or tenant takes a step first, thinks about other options and considers the motives of the intruder, Berkeley County (W.Va.) Prosecutor Pamela Games-Neely said.

"It's not black-and-white here," Games-Neely said. "Inside your home, you have the right to defend yourself or your family from death or to prevent a felony inside your home."

Felonies are a category of crimes with which Games-Neely said many residents are not well-versed. Because of that, she said the law's language presents some difficulty for its residents: If a burglar was out to steal a $150 television - a misdemeanor - and the homeowner killed the burglar, the homeowner might not be spared from prosecution.

"You can't defend property," Games-Neely said. "You can defend life, but you can't defend property."

On top of that, West Virginia law requires homeowners to "take a step back and weigh other options if possible" before using a weapon against an intruder inside their home, she said.

"Here we call it 'one step back.' That law is not as clear as we would like it to be," Games-Neely said, adding that "one step" is open to broad interpretation. Some attorneys have interpreted it as just shifting feet, she said.

West Virginia Del. John Overington, R-Berkeley, said there has been work in the House Judiciary Committee on which he sits to expand the definitions of the current law.

"We may need to clarify the law. I think there's sort of a general understanding that in your house, if you have retreated or feel threatened ... that you can use deadly force to defend yourself," Overington said. "We recognize that law enforcement can't be everywhere."

Overington said he's not sure the Legislature could spell out every possible scenario under the law to remove its current ambiguity, but, he said, "A jury in West Virginia - if there is ambiguity - they would side with the person who used deadly force to protect themselves."

A tricky defense

In Pennsylvania, Magisterial District Judge T.R. Williams in Scotland, Pa., said the section of state law covering justifiable self-defense is about four pages long and includes a "lengthy number of different requirements" for a killing to be deemed justifiable.

"It's pretty hard to just spout a broad rule," said Williams, who also served 13 years as an assistant district attorney in Chambersburg, Pa. "Self-defense gets tricky because the small factual details can make a difference on how it's viewed."

Williams said that Pennsylvanians, like Maryland residents, have no duty to retreat from a dangerous situation inside their homes, but added that there are several caveats to that rule. Shooting a police officer who is making an arrest inside the home, even if it is seen as an unlawful arrest, or shooting a person inside the home who is trying to reclaim his or her property, for example, are not justifiable acts.

If the person has an opportunity to safely run from the situation and uses deadly force instead, that act is not deemed justifiable, according to Pennsylvania law.

"You should have every right to defend your home and those persons inside your home," said Pennsylvania state Sen. Terry Punt, R-Franklin/Adams/York. "At the same time, I don't think you should be sued for it."

Punt said the state legislature is reviewing whether it should offer civil immunity for anyone who harms or kills an intruder in self-defense.

Maryland Del. Christopher B. Shank, who sits on Maryland's House Judiciary Committee, sponsored a bill in 2005 that would have granted immunity from civil prosecution to someone who used force against a person who was "committing or attempting to commit a crime of violence against them in their home."

The bill, HB 646, passed the House, but was defeated in the Senate Judicial Proceedings Committee, Shank said.

"It (strikes) many as an outrage if you're protecting your property that someone could commit a crime of violence against you and then try to punish you in the civil system," Shank said.


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