According to correspondence with Paul Valone, head of Grass Roots North Carolina, this bill was modeled on the State of Florida’s Castle Doctrine bill.
The primary sponsors of this bill are all Republicans. They represent a diverse group including a police officer (Hilton), a retired Clerk of Superior Court (Randleman), a retired Marine (Cleveland), and a medical social worker (Brown).
HOUSE DRH30070-LH-51 (01/19)
Short Title: Castle Doctrine.
Sponsors:
Representatives Hilton, Randleman, Cleveland, and R. Brown (Primary Sponsors).
A BILL TO BE ENTITLED
AN ACT to provide when the use of force or the use of deadly force is justifiable in defense of self, others, or one’s home or vehicle, or in preventing the commission of a forcible felony, and to provide immunity from criminal prosecution and civil action in those circumstances.
The General Assembly of North Carolina enacts:
SECTION 1. Chapter 14 of the General Statutes is amended by adding a new Article to read:
“Article 62.
“Justifiable Use of Force.
“§ 14‑470. Definitions.
The following definitions apply in this Article:
(1) Criminal prosecution. – The term includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) Deadly force. – Force that is likely to cause death or great bodily harm. The term includes the following: (i) the firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm and (ii) the firing of a firearm at a vehicle in which the person to be arrested is riding. The term does not include the discharge of a firearm, which is loaded with a less‑lethal munition, by a law enforcement officer or correctional officer during and within the scope of his or her official duties.
(3) Dwelling. – A building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(4) Forcible felony. – Treason; murder; manslaughter; rape, sexual offense, sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; felonious stalking; malicious use of explosive or incendiary device; and any other felony which involves the use or threat of physical force or violence against any individual.
(5) Law enforcement officer. – Any person employed or appointed as a full‑time, part‑time, or auxiliary law enforcement officer, correctional officer, probation officer, post‑release supervision officer, or parole officer.
(6) Less‑lethal munition. – A projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person’s body.
(7) Residence. – A dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(8) Vehicle. – A conveyance of any kind, whether or not motorized, which is designed to transport people or property.
“§ 14‑471. Use of force in defense of person.
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if either of the following applies:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under the circumstances permitted pursuant to G.S. 14‑472.
“§ 14‑472. Home protection; use of deadly force; presumption of fear of death or great bodily harm.
(a) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if both of the following apply:
(1) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.
(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(b) The presumption set forth in subsection (a) of this section does not apply if any of the following apply:
(1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or title holder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
(2) The person sought to be removed is a minor child or minor grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
(3) The person who uses defensive force is engaged in a forcible felony or is using the dwelling, residence, or occupied vehicle to further a forcible felony.
(4) The person against whom the defensive force is used is a law enforcement officer, as defined in G.S. 14‑470, who enters or attempts to enter a dwelling, residence, or vehicle in the lawful performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(c) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(d) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
“§ 14‑473. Use of force in defense of others.
A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
“§ 14‑474. Immunity from criminal prosecution and civil action for justifiable use of force.
(a) A person who uses force as permitted in G.S. 14‑471, 14‑472, or 14‑473 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in G.S. 14‑470, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.
(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a) of this section, but the agency shall not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(c) The court shall award reasonable attorneys’ fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (a) of this section.
“§ 14‑475. Use of force by aggressor.
The justification described in G.S. 14‑471, 14‑472, and 14‑473 is not available to a person who is doing any of the following:
(1) Is attempting to commit, committing, or escaping after the commission of a forcible felony.
(2) Initially provokes the use of force against himself or herself unless one of the following situations exists:
a. The force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.
b. In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
“§ 14‑476. Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
(a) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.
(b) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.
(c) In any civil action where a party prevails based on the defense created by this section:
(1) The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, lose any privileges provided by the correctional facility, including, but not limited to the following:
a. Canteen purchases.
b. Telephone access.
c. Outdoor exercise.
d. Use of the library.
e. Visitation.
(2) The court shall award a reasonable attorneys’ fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney; however, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this subdivision, the party shall, as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.
(3) If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findings and ruling pursuant to subdivisions (1) and (2) of this subsection and shall direct that a certified copy be forwarded to the appropriate correctional institution or facility.
(d) A law enforcement officer is not liable in any civil or criminal action arising out of the use of any less‑lethal munition in good faith during and within the scope of his or her official duties.”
SECTION 2. G.S. 14‑51.1 is repealed.
SECTION 3. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.
WHAT MAKES HB 74 BETTER?
Last Friday, the NRA issued an alert backing SB 34, sponsored by Senators Andrew Brock, Doug Berger and Kathy Harrington. While the pro-gun sponsors have the best of intentions, SB 34 and its companion bill, HB 52, (Reps. Tim Spear, Bill Owens and Jim Crawford) are dangerously flawed.
SB 34 and HB 52 are substantially similar to SB 928, which passed the Senate in the last session but was killed in the House when Rep. Deborah Ross and former Rep. Hugh Holliman (who was defeated by GRNC in the last election) denied it a committee hearing.
The problem is that SB 928 passed the gun-hostile Senate in a greatly weakened fashion: Although the original Edition 1 offered victims protection both inside and outside the home, particularly in motor vehicles, the amended Edition 2 offered protection ONLY WITHIN THE HOME, meaning it offered little beyond present law.
By contrast, HB 74 is the result of longstanding collaboration between Rep. Hilton and GRNC. Drafted by GRNC in 2005, it was substantially improved by Hilton and legislative staff in the 2009-2010 session, when it was introduced as HB 1131.
The bottom line is that while SB 928 might have been the best bill attainable in the last, gun-hostile session of the legislature, you have worked hard to produce a pro-gun majority this year in both chambers, and you deserve better.
ADDITIONAL PROTECTIONS OF HB 74:
* Better definitions, including defense against “forcible felonies;”
* Presumption of reasonable fear to victims of carjackings;
* “Stand your ground” protection: No duty to retreat when attacked outside the home; and
* Better protection against lawsuits: If attackers or survivors file malicious lawsuits which are thrown out of court, they would bear the full cost of litigation, freeing crime victims of tens of thousands of dollars in legal fees.
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