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Firearms Industry Consulting Group®

HB40 — PA’s Castle Doctrine — The Good, the Bad, and the Ugly

Understanding the Castle Doctrine

First, it is important to understand that a Castle Doctrine refers to the ability of one to defend his home. Pennsylvania’s law prior to enacting HB40 provided that one could use deadly force in one’s home without a duty to retreat, but there did need to be a threat of death or serious bodily injury. Furthermore, under the previous laws, an individual did have a duty to retreat, if he/she could do such safely, when outside one’s home.

A Stand Your Ground Doctrine, on the other hand, provides that the individual does not have a duty to retreat, including in public. There are, however, a number of different Stand Your Ground Doctrine variations on the use of force in particular circumstances; for instance, whether or not deadly force can be used against a fleeing thief, who is in posession of your TV.

Good Aspects to HB40

Now that the differences have been explained, let’s look at the good aspects to HB40.

First and foremost, it is important to note what the Congress found in enacting HB40:

“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.”

Another interesting finding was that not only residents but also visitors “have a right to remain unmolested within their homes or vehicles.”

One of the first good legal aspects to HB40 was that the definition of a ‘dwelling’ was modified to include an attached porch, deck, or patio. While I believe this language should have been even more broad to include the curtilage, this is definitely a vast improvement, since under the prior law, it could be contended that a porch, deck or patio was not included. This further defines a dwelling, so that the Courts are not left to their own devices.

Another definition that was added was the definition of a “vehicle.” A vehicle is now defined as,

“A conveyance of any kind, whether or not motorized, that is designed to transport people or property.”

While this also helps prevent the Courts from finding their own definition of a vehicle, as will be shown in the section “The Bad and the Ugly, The Definition of ‘Vehicle’”, this also could result in problems for someone who is “openly” carrying a firearm, while riding a bicycle, as now that would constitute concealed carry.

The Real Benefit of HB40/Castle Doctrine

So now, moving on to the real benefit of HB40, section 2.1 adds a presumption, whereby an individual is to be presumed to be acting reasonable in the use of deadly force if

  • 1.) “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 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.”
  • and 2.) The person using deadly force “knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.”

It is important to note that this presumption only applies to the use of force in a dwelling, residence, or occupied vehicle (unless the conduct falls within the exceptions of Section 2.2, which is discussed below) and not to the use of force in public.

It is important to note that both elements must be met; however, I am is unsure when the second element would come in to play, as it seems duplicative. If the person is going to use deadly force, that person is obviously going to know that the perpetrator is attempting to enter or has gained intro into the house. So, it would seem that the second element is there to prevent someone from using deadly force against someone who is lawfully in the dwelling or vehicle; however, the problem with that position or argument is that the first element requires that the perpetrator be both unlawfully and forcefully entering or have entered the dwelling or vehicle and the exceptions in Section 2.2 to the presumption state that if the person can lawfully be in the dwelling, residence, or occupied vehicle, then the presumption does not apply. Hence, if the individual was lawfully entitled to be in the dwelling or vehicle, the first element could not be met and the exceptions exclude the presumption from applying.

Accordingly, element two seems duplicative. While I can of course come up with an example where element two would provide a different oucome (where a hunter, hunting on his own property, fires at a deer, missing the deer, and resulting in the bullet entering his/her dwelling and striking the perpetrator), the likelihood of such occurring and the legislator being concerned with such, seems somewhat outlandish. Nevertheless, both elements must be met.

Exceptions of Presumption

Of course, like almost every statute or law, there are exceptions to the presumption. Section 2.2 deals with exceptions, where the presumption in Section 2.1 does not apply, even if the two elements are met. The exceptions are, of course,

  • 1.) where the person against whom force is used has a lawful right to be in that dwelling, residence, or occupied vehicle;
  • 2.) where the person being removed is the child, grandchild, or otherwise in the lawful custody of the person against whom force is used;
  • 3.) The person using deadly force is engaged in criminal activity or is using the dwelling, residence or occupied vehicle to further criminal activity;
  • and 4.) where the person against whom force is used is a peace officer, acting in his official capacity, and the person using force knew or should have known that the person was a peace officer.

These exceptions are extremely important and self-evident as to why they have been included.

Stand Your Ground Doctrine

Section 2.3 deals with the right of the individual not to retreat in public and the ability to use deadly force, so long as,

  • 1.) the actor is not engaged in criminal activity;
  • 2.) the actor is not in illegal possession of a firearm;
  • 3.) is attacked where Pennsylvania would have previously required them to retreat;
  • 4.) had a right to be in the place where attacked;
  • 5.) the actor believes it immediately necessary to protect him/herself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat;
  • and 6.) the person against whom force is used uses or displays a firearm, or replica thereof, or any other weapon readily or apparently capable of lethal use.

Later, under Section 3, the legislature declared that an individual, who fits the above criteria, also has no duty to retreat when defending one he seeks to protect. 

Once again, even Section 2.3 has an exception and that is for a peace officer, like the exception to Section 2.1. Section 2.5 then goes on to deal with the “intent” element. Specifically, where an individual unlawfully and forcefully enters or has entered a dwelling, residence, or occupied vehicle, that individual is presumed to be doing so with the intent to commit an act resulting in death, serious bodily injury, kidnapping or sexual force by force or threat. Section 2.6 then goes on to prevent a perpetrator from being able to use deadly force against the officer or individual effecting the arrest or preventing escape.

Other Aspects of HB40 Including Immunity

It should be noted that for all of Section 2, the legislature added a definition of “criminal activity,” which is defined as “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.”

Another good aspect to this legislation is that it also amended several other portions of the crimes code. Specifically, it made it 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.” Furthermore, if one of the elements of that section cannot be shown, such as the receiver being in the business, a conviction would result in a misdemeanor of the first degree.

One of the great aspects to this legislation was the modificiation to the Uniform FIrearms Act definition of “Loaded.” Additional language was added that, “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.” The reason this is important is that individuals have been stopped and arrested for having a loaded firearm, when the firearm was in a soft case, unloaded, but there were loaded magazines on the outside pouch of the soft case. This now makes it clear that having a loaded magazine in a complete and secure pouch, on the outside of a soft case, does NOT constitute the firearm being loaded.

So, by now, you should be saying “Wow, this has given us a lot of benefit,” but the biggest benefit hasn’t even yet been stated. Under Section 7, the legislature added civil immunity, when the individual lawfully uses deadly force, as provided for in this legislation. Moreover, if you are sued and prevail by showing that you are entitled to civil immunity, the legislator has required that the court award reasonable attorney fees, reasonable expenses, and costs. This includes reimbursement of expert fees, and compensation for loss of income. While the courts ultimately have the final say in what is “reasonable,” at least the legislature has provided that they must award these fees, instead of “may” award these fees.

The Bad and the Ugly

While HB40 overall is a vast improvement to what Pennsylvania had on the books, there are several bad and ugly aspects to this recent enactment.

The Definition of ‘Dwelling’

First, the definition of “dwelling,” in my opinion, is not broad enough. Although the definition now includes an attached porch, deck, or patio, nothing defines “attached.” While most can comprehend how a porch and deck would be attached to a house, I am not sure even I know how a patio is attached. While Blacks Law Dictionary does not define patio, defines it as

“an area, usually paved, adjoining a house and used as an area for outdoor lounging, dining, etc.” or

“a courtyard, especially of a house, enclosed by low buildings or walls.”

With a porch or deck, typically, the porch or deck is attached to the house via bolts; however, with a patio, there is nothing to bolt it to. Rather, it is basically your yard area that is used for outdoor lounging and pleasure. While the argument can be made that “attached” only applies to porches, and not to decks and patios, given the U.S. Supreme Court’s decision in D.C. v. Heller and its determination of proper grammatical punctuation, it is unlikely that such an argument will prevail.


Furthermore, why didn’t the legislature include curtilage?

One’s curtilage generally refers not only to the actual dwelling but also to the land occupied by the dwelling. Hence, one’s yard, driveway, and other such portions of his/her property, would be included. This means that while the individual is able to utilize the presumption listed in 2.1 in their “dwelling” that presumption would not apply in their yard or driveway, unless such constituted a patio. However, if you are in your car, in your driveway, you are entitled to the presumption, consistent with section 2.1.

The Definition of ‘Vehicle’

The next potential problem with HB40 is with the definition of “vehicle.” Vehicle is now defined as

“A conveyance of any kind, whether or not motorized, that is designed to transport people or property.”

So, while a person riding a bicycle is now entitled to the presumption if someone tries to unlawfully and forcefully take that bicycle, the person riding that bicycle, with a firearm, is required to have a License to Carry Firearms (LTCF), even if it would be openly displayed. That is because 18 Pa.C.S. 6106 makes it a crime to carry a firearm without an LTCF in a vehicle.

However, PA’s Uniform Firearms Act does not define “vehicle” in it and this definition applies to 18 Pa.C.S. 501, not 18 Pa.C.S. 6101 et seq.

So, the question arises whether this definition will be used in relation to PA’s Uniform Firearms Act. The courts have already held, in the DUI context, that bicycles, golf carts, and riding lawnmowers, are vehicles and I have always advised clients taht they needed a LTCF in order to carry while on a bicycle or other such transportation device because of the uncertainty. Now, it would seem, the ability to argue that carrying while on a bicycle without a LTCF just became a much more difficult argument to make.

A Concern to the ‘Vehicle’ Context

So now, moving on to Section 2.1, another concern arises. The presumption only applies in the vehicle context, if it is

So, while an individual being carjacked is entitled to the presumption, someone observing another breaking into his/her car, even if parked in his/her driveway (unless it constituted a patio), is not entitled to that same presumption and cannot likely use deadly force. This is drastically different from Stand Your Ground Doctrines in Florida and Texas, just to name a few.

With that said, even more problems arise in the vehicle context, given the definition of ‘vehicle’ and Section 2.1. Who is entitled to the presumption in relation to an occupied vehicle? Is it only the person who is occupying the vehicle? Or, is anyone who acts against the perpetrator entitled to the presumption? Depending on the circumstances, and to some extent the courts interpretation, the outcome could be drastically different.

For example, let’s say a lady is being carjacked and the perpetrator is in the process of removing her from the vehicle. Under this situation, consistent with Section 2.1, since she is being unlawfully and forcefully removed from her vehicle, against her will, the good samaritan would be entitled to the presumption. But, let’s take the example of the child that is in the car seat of the vehicle. The mother forgot her keys in the house and runs back into the house to grab them. At that time, the perpetrator jumps into the car and begins to hotwire it but takes no action to remove the child. Is the good samaritan, in this instance, who attempts to protect the child, entitled to the presumption?

While this would constitute kidnapping, which would make the use of deadly force justifiable, it is not clear that the presumption would apply. While the good samaritan would have no more a duty to retreat than the person whom he seeks to protect, what is noticeably absent from Section 3 is that the good samaritan is entitled to the same presumption, if any, as the one he seeks to protect. While logic would dictate that any such presumption should be transferred to the good samaritan, we unfortunately have some courts that seem to accept criminal conduct and feel bad for the perpetrators when they are harmed in the commission of a crime.

The Presumption Exception of Section 2.2

Moving on, let’s talk about the presumption exception of Section 2.2 that if the actor is involved in criminal activity or using the dwelling, residence, or occupied vehicle to further criminal activity, he/she is not entitled to the presumption. Criminal activity is defined as

“conduct which is a misdemeanor or felony, is not justifiable under this chapter, and is related to the confrontation between the actor and the person against whom force is used.”

While we obviously do not want to provide a safe-haven for drug dealers and the like, there has been a lot of concern voiced regarding whether a father could lose his right to the presumption because his kid has some marijuana in the house, which the father does not know about or condone. It is important to see that this definition requires three separate elements.

  • 1.) First, the criminal conduct must be of a misdemeanor level or greater. Although some have contended that zoning code violations could result in the loss of the presumption, I am unaware of any zoning code violation that results in a misdemeanor or greater conviction. Nevertheless, ostensively, it is possible. However, there are two more elements that must be met.
  • 2.) The second element is that the conduct not be justifiable under this chapter. So, this prevents the individual from losing his/her presumption if he/she acts justifiably. Meaning, the criminal activity cannot be the shooting of the other person, if the shooting of the other person was justified.
  • 3.) Lastly, the conduct must be related to the confrontation between an actor and the person against whom force is used. This means that the conduct must have caused, resulted in, or be in some way related to, the use of deadly force. Hence, in the zoning code violation example, unless the deadly force was used against the zoning code officer, because he/she was there regarding the zoning code violations, a zoning code violation, even if a misdemeanor or greater, would not trigger the definition of criminal activity.

Also, this means in the family example that the father would not lose his presumption for the use of deadly force, even if the perpetrator is trying to gain access because of the marijuana that the son has, since the conduct would not be related to the confrontation between the father and perpetrator. The father is protecting his family and has not been involved in the illegal conduct of his son.

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