GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

S                                                                                                                                                     1

SENATE BILL 928

 

 

Short Title:        The Castle Doctrine.

(Public)

Sponsors:

Senators Berger of Franklin,  Snow; Allran, Apodaca, Brock, and Preston.

Referred to:

Judiciary II.

March 26, 2009

A BILL TO BE ENTITLED

AN ACT to clarify when a person may use defensive force to protect against the unlawful and forcible entry into the person's dwelling by another, to prevent the removal of a person against his or her will from the person's dwelling, to provide that a person who is in a place where the person has a right to be has no duty to retreat, and to provide that a person is justified in using defensive force in these circumstances and so is immune from criminal prosecution and civil action for the use of such force.

The General Assembly of North Carolina enacts:

SECTION 1.  Article 14 of Chapter 14 of the General Statutes is amended by adding a new section to read:

" 14-51.2.  Home protection; use of deadly force; presumption of fear of death or great bodily harm; immunity from criminal prosecution and civil action for justifiable use of force.

(a)        The following definitions apply in this section:

(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.

(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)        Residence. - A dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(b)        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:

(1)        The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling or residence, or if that person had removed or was attempting to remove another against that person's will from the dwelling or residence; and

(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.

(c)        The presumption set forth in subsection (b) does not apply if:

(1)        The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling or residence, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(2)        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 defensive force is used; or

(3)        The person who uses defensive force is engaged in an unlawful activity or is using the dwelling or  residence to further an unlawful activity; or

(4)        The person against whom the defensive force is used is a law enforcement officer who enters or attempts to enter a dwelling or residence 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 entering or attempting to enter was a law enforcement officer.

(d)        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.

(e)        A person who unlawfully and by force enters or attempts to enter a person's dwelling or residence is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(f)         A person who uses force as permitted by this section 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, 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."

SECTION 2.  G.S. 14-51.1 is repealed.

SECTION 3.  This act becomes effective December 1, 2009, 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.