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joppaj said:

Any update on how this turned out?

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Thank you for your e-mail expressing your support for House Bill 40. Due to the volume of correspondence I have received on this issue, I am unable to reply to each of you individually. However, I want to assure you of my support for the bill. I have supported similar bills in the past, and I support this bill as well.


If you are a resident in my district, please contact my district office directly at (717) 249-1990 for further information.

Sincerely,

Will Gabig
State Representative
199th Legislative District

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House Judiciary Committee
10:00 a.m., 11/19/09, Room 140 Main Capitol Building
By Jeff Cox and Sean Rossman, PLS Intern

The committee conducted a public hearing on legislation expanding of the castle doctrine.

HB 40 Perry - (PN 32) Amends Titles 18 (Crimes & Offenses) and 42 (Judiciary) further stipulating, in general principles of justification, certain circumstances and situations in which protective and/or deadly force is justified. The bill provides for presumptions of intent, for reasonable belief, for exceptions, for definitions and inconsistencies, and for public officers outlines justifications for the use of force in the performance of duty.

Committee members present included Chairman Thomas Caltagirone (D-Berks), Minority Chairman Ron Marsico (R-Dauphin) and Representatives Thomas Creighton (R-Lancaster), Paul Drucker (D-Chester), Will Gabig (R-Cumberland) Glen Grell (R-Cumberland), Kate Harper (R-Montgomery), Deberah Kula (D-Fayette), Kathy Manderino (D-Philadelphia), Todd Rock (R-Franklin), Richard Stevenson (R-Mercer) and Ronald Waters (D-Philadelphia). Also in attendance were Representatives Karen Boback (R-Luzerne), Scott Hutchinson (R-Venango), John Payne (R-Dauphin), RoseMarie Swanger (R-Lebanon), Will Tallman (R-Adams), Mike Turzai (R-Allegheny), Brendan Boyle (D-Philadelphia) and Tim Seip (D-Schuylkill),

Joe Grace, executive director of CeaseFirePA, expressed opposition to the legislation and described it as "an unjustified, unnecessary expansion of existing Pennsylvania law." According to Grace, the Pennsylvania law "already includes the castle doctrine, relieving residents of the duty to retreat before using deadly force to protect their homes from intruders." He argued the legislation will make it harder for police and for prosecutors to do their jobs. Grace testified, "If we remove the duty to retreat for individuals and expand that zone outside a person's home to include their front porch, their deck, their lawn, all the way down to the corner, it will make domestic situations more hazardous - and potentially deadlier - for police." He concluded that the legislation is "a solution in search of a problem and we respectfully ask this committee to oppose this bill as unwise, unneeded policy that is dangerous for our citizens and out police."

Richard Gray, mayor of the city of Lancaster, joined Grace in expressing opposition to the proposal. Mayor Gray noted that missing in HB 40 is which party in a self-defense case has the burden of proof. He said self-defense is an affirmative defense, and that it's important, when dealing with affirmative offenses in criminal court, that once the defense is raised the commonwealth must prove beyond a reasonable doubt that the action was not self defense. The defense does not have to prove that the action was a reasonable use of force. He admitted that the commonwealth's burden of "proving a negative" is a daunting task.

The law, said Mayor Gray, would allow people who knowingly have the ability to retreat with complete safety to elect to use deadly force.

Stipulations in HB 40, including defining a person's porch and lawn part of their "dwelling" and defining a vehicle as "a conveyance of any kind whether or not motorized which is designated to transport people or property," may be overbroad as these may be used as defense methods by defense attorneys. He called the bill a "defense attorney's dream."

The bill would make it more difficult for the state to effectively prosecute homicide defendants, he also argued.

John Hohenwarter, representing the National Rifle Association of America, testified in support of the legislation. He told committee members, "This important piece of legislation restores rights that have been eroded or taken away by a judicial system that currently gives preferential treatment to criminals and forces judges and prosecutors to focus on protecting victims." Hohenwarter argued, "It is unreasonable that victims of crime should have to worry about being arrested or prosecuted if they are required to use force to defend themselves or their families. Any victim should be able to presume that an unlawful attacker or forcible intruder is there for the purpose of doing harm." According to Hohenwarter, "This measure will reinstate the law prior to the time when criminal-coddling judges and courts started putting the rights of criminals before the rights of the law-abiding."

Minority Chairman Marsico asked Hohenwarter which states have passed similar legislation. Hohenwarter named 24 states that have passed legislation similar to HB 40. He added that there were some states that already had enacted laws that dealt with the issues to be addressed in HB 40. The 24 states to adopt legislation had "inadequate" legislation before they adopted their respective laws. Pennsylvania, he said, is one of a few states not to pass legislation of this kind.

Rep. Stevenson alluded to Mayor Gray's affirmation that HB 40 is an "attorney's dream" and would propose unintended consequences. Hohenwarter denounced the statement as "anti-gun rhetoric and hyperbole." On the statement of unintended consequences he admitted that the 24 newly adapted states had seen problems but that they were not problems relating to increased violence but to prosecutors and lower courts not honoring the law.

Rep. Gabig noted that the Pennsylvania District Attorney's Association has issues with HB 40 and oppose it. He added that many district attorneys are in favor of the second amendment and other gun rights. He asked Hohenwarter, as representative of the NRA, if he shares the rhetoric he housed earlier that the DPAA is "anti-self-defense" despite most DAs seeming to be on the side of gun-rights. Hohenwarter responded that he does not feel that all of them are anti-self-defense but feels that there certainly are some district attorneys that are anti-self-defense. Hohenwarter said that "a lot of the problems we've had in Pennsylvania have been caused by overzealous prosecutors," in reference to prosecutors using self-defense laws to win cases over self-defense defendants.

The NRA often endorses district attorneys, said Rep. Gabig, and some of those NRA endorsed district attorneys may oppose this bill but may not be anti-self-defense.

Rep. Drucker asked which district attorneys are anti-self-defense to which Hohenwarter said the hearing was "not the time and place" to disseminate that information.

Kim Stolfer, chairman of the Legislative Committee of the Allegheny County Sportsmen's League and vice chairman of the Legislative Committee of the Pennsylvania Sportsmen's Association, also expressed support for the legislation. He argued that the legislation does the following: establishes, in law the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, therefore a person may use force, including deadly force, against that person; modifies the "duty to retreat" if you are attacked in any place you have the right to be; provides that persons using force authorized by law shall not be prosecuted for using such force; and provides "civil immunity" against unfounded frivolous lawsuits filed by criminals and/or their families for injuring or killing the criminals who have attacked them, including police officers. According to Stolfer, the bill "does not eliminate the duty to retreat and neither does it eliminate Pennsylvania Use of Force laws despite the deceptive protestations of the Pennsylvania District Attorney's Association and other anti-self defense organizations."

Alluding to Stolfer's statements on police officers being killed, Rep. Drucker asked what the connection is between that statement and HB 40. Stolfer said that his statement was that recidivist criminals had been the killers of the police officers. Rep. Drucker asked if he thought had HB 40 been enacted would the killings have been prevented. Stolfer responded that in his statement he was attempting to highlight that violent criminals target trained law enforcement officials who have the training to use a gun and gun them down. This, he said, is evidence that a law should be made for ordinary citizens to act on a perpetrator without hesitation due to contemplation of liability.

Hohenwarter said the bill "has nothing to do with gun violence" instead it addresses closing loopholes in self-defense laws.

Edward Marsico, President of the Pennsylvania District Attorneys Association, reported the association stands in opposition to House Bill 40 "because Pennsylvania's current law has demonstrably protected residents in their use of force in self-defense and because House Bill 40 provides an overbroad, vague and dangerous expansion for the use of deadly force on the streets of our state." He called the bill's principle purpose of eliminating the duty to retreat from Pennsylvania's statutory provisions "a solution without a problem," and said the bill does nothing to strengthen the rights of an individual to defend his home. Marsico added that, "In fact, the proposed amendments eliminate any special importance in the law of the right to protect one's home or 'castle,'" and contended the new subsections "open the door for increased violence" by providing for an ambiguous shoot-first defense. He warned of the implications the bill would have for the proliferation of open gang warfare.

Rep. Stevenson asked Marsico if he intended to address the civil immunity aspect of HB 40 in which Marsico said he has not addressed that issue but does feel that it is an important issue.

The committee's chief counsel William Andring asked Marsico if he could confirm how many states have "Stand Your Ground" laws, which is a law that does not require a person the duty to retreat. Marsico confirmed that this is true based on research the PDAA conducted.

Frank Shaffer, a resident of Red Lion, testified in support of the legislation. He related an encounter with a truck driver on a highway in which his unholstering of a firearm defused a potentially violent situation. Shaffer characterized House Bill 40 as a "must pass bill," that upholds "the God given rights of the people" and "supports and clarifies the rights given to the people by the Founding Fathers of our Country and this Commonwealth."

Michael Charles, representing the Philadelphia Democratic Executive Committee's 54th Ward, 16th Division, remarked, "I want to see this piece of legislation passed and signed into law, as it would benefit all law abiding Pennsylvanians." He identified several problems he believes exist with the Castle Doctrine as it stands, and offered a series of recommendations regarding House Bill 40. He emphasized he does not want to see the bill "watered down" with amendments.

Dr. Mary Wade, Associate Minister of the Wayland Temple Baptist Church, said that in light of the holiday season it is "incredible" that HB 40, which she referred to as "Shoot First," is being considered. She said "one thing that weakens, that diminishes the good in us is fear," and contended that fear is driving the push for House Bill 40. "Shoot first is not humane, not decent, not orderly, and not godly. Shoot first is just not right," she remarked.

Rev. Jim Brown testifying on behalf of Heeding Gods Call, said that HB 40 "does not meet the standard of lessening gun violence in our nation." He said Presbyterians believe in the right of self-defense but also believe in a common sense philosophy to life. "Citizens are not equipped in training or temper to make life or death decisions in the fashion outlined in HB 40," said Rev. Brown.

Rabbi Carl Choper, Chair of the Interfaith Alliance of Pennsylvania, said the right of self-defense "is a very strong one" and "the laws of our commonwealth allow us that right." He said that laws direct people to self-defense and that human life is of paramount value. "Any problems that exist in the laws as they are now can be remedied by wise application of current laws," said Reverend Choper. He noted that society is violent and does not need any more justification to be more violent. "This is a serious readdressing of the balance between the right to self-defense and the sanctity of human life," he said.

Captain Marshall Martin, Director of the Pennsylvania State Police (PSP) Risk Management Office, stated PSP feels that existing laws are sufficient and the provisions of House Bill 40 are "problematic." He said the legislation "seemingly eliminates the duty to retreat in public places, thereby encouraging the use of deadly force when it could otherwise be avoided." Marshall added that House Bill 40's "broad, vague and confusing language" could pose dangers for law enforcement, and could interpreted to mean a person is justified in using deadly force against a police officer unless the officer has identified himself or is clearly identifiable as a police officer.

Rep. Stevenson asked Captain Marshall to comment on the incident related by Frank Shaffer in his testimony. Captain Martin responded it is unfair for him to comment on the situation without knowing all of the facts.

Carl Stevenson, Executive Director of the Pennsylvania Self-Defense Rights League, testified in support of House Bill 40. He explained self-defense is an inalienable right "necessary to maintain our civilization." It being impractical and undesirable to expand police forces to the extent that there would be enough coverage to protect everyone, Stevenson opined "it is clear that the individual free Citizen of the United States must be responsible for his/her own safety and well-being," and called House Bill 40 a step in the right direction. He disputed the testimony of the Pennsylvania District Attorneys Association and the Pennsylvania State Police. Regarding Captain Martin's statement that "police officers must make split-second decisions in situations that are often dynamic and dangerous", Stevenson said citizens also must make those same types of decisions in those situations.

Daniel Pehrson, founder and current president of the Pennsylvania Firearm Owners Association, recounted his personal experience in what he termed as "a self-defense scenario." He told committee members he was followed by three individuals who surrounded him and threatened him with a stun gun. Pehrson said, "At this point in time I quickly drew the firearm that I am licensed to carry, pointing it at the ground. I am thankful every day that the assailants' reaction to this turn of events was to run faster than I had ever seen people run in my life." He added, "No one was hurt, most importantly, me." Pehrson expressed concern that "under current law a prosecutor who was not in that situation has the ability to subjectively Monday-morning quarterback me and proclaim I should have retreated." He also noted that if the attackers had continued their assault and he was forced to use justifiable defensive force, there was nothing to prevent the attackers or their families from suing him in civil court. Pehrson said, "I find it objectionable that a violent criminal can continue to ruin one's life in the months and even years after an assault." He urged the committee to support the legislation.

Noting that some of the law enforcement representatives had shaken their heads during Pehrson's testimony, Minority Chairman Marsico asked them if any wanted to respond to Pehrson's comments. When no one offered to respond, Andring explained that the concern with the legislation is the broad and vague parameters outlined in the legislation. He described some of the drafted language as "abysmal." Michael Charles responded that he doesn't dispute that some of the wording needs to be corrected. He added it seems to him that Andring is advocating the bill should not go forward because of the wording. Chairman Caltagirone disputed Charles' comment by remarking that Andring "did not say that." He went on to say that legally words have meaning and the committee needs to be careful about unintended consequences. Chairman Caltagirone added that there are a lot of concerns with some of the language, which need to be cleaned up. Charles commented that gun owners are statistically more law abiding than their fellow citizens.

The following organizations submitted written legislation to the committee:

· Pennsylvania Chiefs of Police Association

· Pennsylvania Coalition Against Domestic Violence

· Pennsylvania Federation of Sportsmen's Clubs

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The law, said Mayor Gray, would allow people who knowingly have the ability to retreat with complete safety to elect to use deadly force.

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boricuamaximus said:

So??? Most of the gun owners that I know would already remove themselves from any drama, especially if they have a firearm them. There should be no duty to retreat. Let's say a punk tries to mug you on your porch with a knife, he leaves to get his gun. At least you can make certain that he's not on his way back. I would call that grounds for detaining under a citizen's arrest.

Dumb laws like this make it so the criminal can return another day, better prepared.

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The bill also eliminates the duty to retreat on the streets provided one is in fear of grave bodily injury or harm, and provided they are not engaged in criminal activity.

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1. You are in a place where you have a legal right to be
2. You are using force against equal force - in this case deadly force
3. To stop an immediate forceable felony (treason, murder, manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, and unlawful throwing, placing, or discharging of a destructive device or bomb or any other felony which involves the use or threat of physical force or violence against any individual)