Castle Doctrine 2011-12 session Activist effort – Please Help

[tmountjr]

Unfortunately their request for a meeting with the Governor fell on deaf ears. No one from his office would take time to discuss the issue - or the tragic circumstances that compelled the students to travel to Harrisburg.

Right, because the Governor usually drops everything to meet with an group of highschoolers (who aren't old enough to purchase firearms themselves, yes?) who show up unannounced and herded in by their keepers from a special-interest lobbyist group. Give me a break.

[ChamberedRound]

Ok, I found this from Karl Rominger's site;

http://www.weekendappointment.com/co...Bill-is-a-Sham

I'm not sure how to take this... Did we do good or did we just listen to the hot air from politicians who screwed us again?

If lawyers can twist this against us, then we have failed to protect ourselves.. might as well have had an empty pistol....Just my opinion based on what I'm reading...

Everyone might want to read this from Karl Rominger.

IMHO the author has misinterpreted much of HB40. I'll try to address each of the concerns from his blog one by one:

The District Attorney's Association refused to support the bill until it was edited to contain a provision that in order to stand your ground in public the other side must have a deadly weapon present and visible.

What this essentially means is that if someone claims to have a gun but you can't see it, or reaches to their pocket and says, "I'm going to shoot you," there is no gun yet visible and you would still have the duty to retreat and could not stand your ground. As you can imagine any clever criminal, thief or wrong-doer simply needs to make sure that their weapon is not immediately visible and you lose your right to stand your ground. And what if you thought you saw a weapon but none was present? Surely the jury will hear an argument hat you were not mistaken, you are lying!

He doesn't quote the bill, but I believe the part of HB40 that he's referring to is Sec 2.3:

(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
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.

All this says is that if an aggressor displays a weapon, then an actor (the law-abiding citizen) can use deadly force. However, there are plenty of other reasons listed in HB40 as to why force, including deadly force, can be used. The display of a weapon is NOT A REQUIREMENT of all the other scenarios in the law where force is justified, it IS a scenario where force is justified in itself.

Next, he goes on to say:

It includes the following, which says you can’t stand your ground or defend yourself in your own home, and get a presumption of self defense if:

“the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity“;

Which is basically language which says that if your house is being used for any criminal activity you lose your right to self defense as traditionally understood therein.

This is just flat-out WRONG. In this case, HB40 in section 2.2.iii states (emphasis by me):

(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:

...

(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

The emphasized passage is the topic of discussion here, and the blog author assumes that if a criminal engages in criminal activity in your home, you can't defend yourself. This is wrong. The word "actor" is used throughout this bill to describe the person using the force, not a criminal from which the actor is attempting to defend themselves. So, what this excerpt correctly says in plain language is:

The person who used deadly force cannot gain protection under this law if they were in the act of committing a crime, or using a home to further criminal activity.

His last point is as follows:

Further if a co-worker attacks you with deadly force, you still have a duty to retreat!

That’s right, “ 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”. So be aware you can shoot a customer in self defense, but not a deranged coworker if you could retreat!

Here he's referring to Sec 2.ii:

(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, except 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.

Note that in the actual law, some of this text is enclosed in brackets; the bracketed text is text which will be removed by the passage of the bill, so for brevity I didn't include it in my quote above.

In this case I believe the blog author has interpreted the bill correctly. And, to be fair, I agree with him on this point. I'm not sure why there needs to be a duty to retreat at work only when it pertains to co-workers. However, remember that a duty to retreat doesn't completely remove the ability for an actor to defend themselves.

Hopefully, this will help a little bit, and bring some of you guys to understand that all in all, HB40 is GOOD legislation that will help all of us. It's not perfect, but it's definitely a huge step in the right direction. I would encourage all of you to go back through this thread and read some of the older posts, as well as read through the text of the bill itself. A lot of these concerns were vetted here well awhile back, so make use of the information.

[ryan92084]

Ok, I found this from Karl Rominger's site;

http://www.weekendappointment.com/co...Bill-is-a-Sham

I'm not sure how to take this... Did we do good or did we just listen to the hot air from politicians who screwed us again?

If lawyers can twist this against us, then we have failed to protect ourselves.. might as well have had an empty pistol....Just my opinion based on what I'm reading...

Obviously this is just my interpretation of the bill as it currently appears but on the 3 points Mr. Rominger makes:

The District Attorney's Association refused to support the bill until it was edited to contain a provision that in order to stand your ground in public the other side must have a deadly weapon present and visible.

What this essentially means is that if someone claims to have a gun but you can't see it, or reaches to their pocket and says, "I'm going to shoot you," there is no gun yet visible and you would still have the duty to retreat and could not stand your ground.

I'm going to assume this is in reference to (2.3)(iii)(B) which actually states:
"(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 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."

This is arguably not as clear cut and allows more leeway than Mr. Rominger's use of "present and visible" it also only to the certain conditions refference in (2)(ii) see point 3

It includes the following, which says you can’t stand your ground or defend yourself in your own home, and get a presumption of self defense if:

“the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity“; ...Secondly, as the plain language of the statute reads, and as Courts will interpret it, it means that any criminal activity in the house may strip you of your right to self defense.

This just isn't true "(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 related to the confrontation between an actor and the person against whom force is used." so unless the "firecrackers, bottle rockets, small amounts of marijuana, paraphernalia, criminal building code violations, or even an expired prescription" Mr. Rominger used as examples are the "proximate cause of related to the confrontation " you would still be afforded the CD protection.

Further if a co-worker attacks you with deadly force, you still have a duty to retreat!

On this point Mr. Rominger correct to a very small degree but only at "the place of work" where you'd know the other person to also be the employee of. More importantly all the language in (2.3)--which i quoted in the first point-- can over write a co-worker's protection and covers most of the reasons you would want to draw a firearm for protection against "deadly force" in the first place.

Once again this is only my interpretation of the bill as I find it to be written so feel free to take it with a big ol' grain of salt.

[johnfritz]

Well thanks for all of that evaluation. I need to go back and read everything a second (or third) time.

[gnbrotz]

Besides, it's not uncommon for new legislation to take 60-90 days to kick in.

Yep, I know. Just want to make sure everyone else is aware too.

Don't want the "blood to run in the streets" before it's actually legal.

[FNG19]

HB40's status has been updated to show that it's been presented to the Governor. I believe this means the 10-day clock has started. Depending on when that clock starts, it will expire on either Saturday, July 2 or Sunday, July 3.

Hang in there, folks. The Fat Lady is on the stage. We're just waiting for the music to start.

[WhiteFeather]

Ok, I found this from Karl Rominger's site;

http://www.weekendappointment.com/co...Bill-is-a-Sham

I'm not sure how to take this... Did we do good or did we just listen to the hot air from politicians who screwed us again?

If lawyers can twist this against us, then we have failed to protect ourselves.. might as well have had an empty pistol....Just my opinion based on what I'm reading...

This guy is a lawyer? Really

Sure hope people don't pay him for legal advice, if this is what he interupts from HB 40

More importantly this amendment brokered by the NRA-ILA employee to please the DA's was approved on March 7, 2011 and this lawyer just noticed the language change on June 22, 2011 after in been in the papers for months. There was the NRA-ILA employee 2009-2010 session brokered amendments as well with the DA's group where was this guys opinion then?

No mention of the “frienemy” group that always worked to delay, weakened and undermine the original Castle Doctrine? hmmmm

where has this lawyer been for the last 7 plus years?

Does this lawyer got conections with with ceasefirePA or the DA's assoc that oppossed this?


Nice job CR covering and refutting the points

As most of the stuff posted in that article are not based on fact but on interpretation, a wrong on at that. A few points are accurate but nothing pointing out who was responsible for weakened HB 40 to give credit they are due for what the lawyer is complaining about in this article.

So is this really a hit just piece or something else at the witching hour?

Is this a perfect bill? Nope but it will fix a lot of problems with civil liability for the Citizens and police officers alike to defend ourselves from the criminals

Castle Doctrine HB 40 in 2009-10 does anyone REALLY want this passed? If so please read
http://forum.pafoa.org/pennsylvania-...ease-read.html

Quote above from April 2, 2009 post on Castle Doctrine and asking directly for your help to get CD passed, seemed like an impossible mission yet here we are days away from a signing party.

Here is the choice you all have to make, you can part of the problem by doing nothing, or you can be part of the solution by taking action. PAFOA people have a real opportunity presented here for them to actually improve their rights for everyone benefit and feel good about making a difference, because with this issue you can. All that you have to do is decide to take whatever action is required to support HB 40 WE can make PAFOA more than just an internet forum, WE can make PAFOA place that we are proud of because of what we can accomplish by working together towards a common cause.

Activate or abdicate the choice is yours, freedom isn’t free

A big THANK YOU in advance for everyone’s help and cooperation on this activist project.

Everyone on PAFOA that wrote letters, sent emails and called your Reps along with all the brave souls that came to HBG and join up with the A-Team at the rallies or lobbying event.

You ALL made a differance to get HB 40 passed through the legislative process and should be proud of what was accomplished.

[XACEX]

counting the days, at the ABSOLUTE LATEST, the Castle Doctrine will still be in effect by september.

[gnbrotz]

Next, he goes on to say:

It includes the following, which says you can’t stand your ground or defend yourself in your own home, and get a presumption of self defense if:

“the actor is engaged in a criminal activity or is using the dwelling, residence or occupied vehicle to further a criminal activity“;

Which is basically language which says that if your house is being used for any criminal activity you lose your right to self defense as traditionally understood therein.

This is just flat-out WRONG. In this case, HB40 in section 2.2.iii states (emphasis by me):

(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:

...

(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

The emphasized passage is the topic of discussion here, and the blog author assumes that if a criminal engages in criminal activity in your home, you can't defend yourself. This is wrong. The word "actor" is used throughout this bill to describe the person using the force, not a criminal from which the actor is attempting to defend themselves. So, what this excerpt correctly says in plain language is:

The person who used deadly force cannot gain protection under this law if they were in the act of committing a crime, or using a home to further criminal activity.

Red emphasis above added by me.

On the second of the three points being discussed, by my reading, he is referring to "the good guy" when referring to "the actor". He goes on to expalin:

if your house is being used for any criminal activity you lose your right to self defense as traditionally understood therein. The sponsors of the bill have claimed that this simply means that if you are committing a criminal act you can't use the Castle Doctrine or the right of self defense in your own home. First of all, in order to expand the right of self defense we didn't need to limit anything within people's homes. Secondly, as the plain language of the statute reads, and as Courts will interpret it, it means that any criminal activity in the house may strip you of your right to self defense.

Practically this means the presence of firecrackers, bottle rockets, small amounts of marijuana, paraphernalia, criminal building code violations, or even an expired prescription would allow a district attorney to strip you of the right of self defense in your own home because there is "criminal activity". The statute specifically does not limit that criminal activity to the underlying use of self defense.

So while I would concede that it's perfectly fair to say that if you murder somebody in your own home or in the context of doing a drug deal you shoot your buyer or seller, you certainly shouldn't be entitled to a self defense instruction. But the mere fact that somebody burglarizes your home while you are in possession of firecrackers, does not mean you should be stripped of your rights.

As you can see, regardless of legislative intent, there is a HUGE loophole left for prosecutors to completely nullify the affirmative defense just added. Do we really want to say folks aren't entitled to claim self-defense if any other illegal items/conduct are present? Do you think that any one of us could pass such scrutiny applied by determined investigators?

Overall, I think the changes are a good thing, but they are not the overwhelming, landmark, history-making revisions that many believe and/or promote them to be.

[ryan92084]

Red emphasis above added by me.

On the second of the three points being discussed, by my reading, he is referring to "the good guy" when referring to "the actor". He goes on to expalin:

As you can see, regardless of legislative intent, there is a HUGE loophole left for prosecutors to completely nullify the affirmative defense just added. Do we really want to say folks aren't entitled to claim self-defense if any other illegal items/conduct are present? Do you think that any one of us could pass such scrutiny applied by determined investigators?

Overall, I think the changes are a good thing, but they are not the overwhelming, landmark, history-making revisions that many believe and/or promote them to be.

You didn't read my post on the matter did you? A loop hole is still present but its much much smaller than it appears.