HB1354 (2006) Detail

Relative to physical force in defense of a person.


HB 1354 – AS INTRODUCED

2006 SESSION

06-2414

04/10

HOUSE BILL 1354

AN ACT relative to physical force in defense of a person.

SPONSORS: Rep. Dickinson, Carr 1; Rep. Merrow, Carr 3; Rep. Bicknell, Rock 1; Rep. Mirski, Graf 10; Sen. Gallus, Dist 1; Sen. Boyce, Dist 4; Sen. Roberge, Dist 9

COMMITTEE: Judiciary

ANALYSIS

This bill:

I. Removes the duty to retreat in the face of an attack.

II. Creates the presumption that an attacker or intruder intends to cause serious bodily injury and permits force, including deadly force, to be used to protect oneself, one’s family, and others.

III. Provides that a person using force authorized by law shall not be prosecuted for using such force and prohibits a perpetrator or a perpetrator’s family from suing a victim for injuring or killing the perpetrator.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

06-2414

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Six

AN ACT relative to physical force in defense of a person.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Physical Force in Defense of a Person. RSA 627:4 is repealed and reenacted to read as follows:

627:4 Physical Force in Defense of a Person.

I. A person is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to himself, herself, or another when using deadly force that is intended or likely to cause death or serious bodily injury to another if:

(a) The person against whom the deadly force was used was in the process of unlawfully entering, or had unlawfully entered, forcibly or otherwise, 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.

(b) The person who uses deadly force knew or had reason to believe that an unauthorized entry, forcible or otherwise, was occurring or had occurred.

II. The presumption set forth in paragraph I shall not apply if:

(a) The person against whom the deadly 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, invitee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

(b) The person or persons 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 deadly force is used;

(c) The person who uses deadly force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the deadly force is used is a law enforcement officer who enters or attempts to enter a dwelling, residence, or vehicle 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.

III. A person who is attacked in any other place where he or she has a right to be shall have no duty to retreat and shall have 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 serious bodily injury to himself, herself, or another.

IV. A person who unlawfully enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to do so with the intent to commit an unlawful act involving force or violence.

V. As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

VI. A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the such other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and shall not have a duty to retreat only if:

(a) He or she reasonably believes that such force is necessary to prevent imminent death or serious bodily injury to himself or herself; or

(b) Under other circumstances as permitted by law.

VII. 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 such conduct is necessary to prevent or terminate the such 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. A person shall not have a duty to retreat if the person is in a place where he or she has a right to be.

VIII.(a) A person who is justified in the use of force as described in this section shall be 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. As used in this paragraph, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(b) A law enforcement agency shall use standard procedures for investigating the use of force but the agency shall not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

(c) The court shall award reasonable attorney’s 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.

2 Effective Date. This act shall take effect January 1, 2007.