American Family and Private Property Defense Act

I 116TH CONGRESS 2D SESSION H. R. 7716 To establish defenses against crimes of violence, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 21, 2020 Mr. SMITH of Missouri (for himself, Mr. GRAVES of Missouri, Mr. LONG, and Mr. LUETKEMEYER) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To establish defenses against crimes of violence, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘American Family and 4 Private Property Defense Act’’. 5 SEC. 2. DEFENSES AGAINST CRIMES OF VIOLENCE. 6 (a) IN GENERAL.—Chapter 1 of title 18, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 2 •HR 7716 IH ‘‘§ 28. Defense of self or others 1 ‘‘(a) DEFENSE.— 2 ‘‘(1) JUSTIFIABLE USE OF FORCE.—It is an af- 3 firmative defense against any charge for a crime of 4 violence that the defendant only used physical force 5 upon another person to the extent that the defend- 6 ant reasonably believed such force to be necessary to 7 defend the defendant or a third person from what 8 the defendant reasonably believes to be the use or 9 imminent use of unlawful force by such other per- 10 son. 11 ‘‘(2) JUSTIFIABLE USE OF DEADLY FORCE.—It 12 is an affirmative defense against any charge for a 13 crime of violence that the defendant only used dead- 14 ly force upon another person— 15 ‘‘(A) to the extent that the defendant rea- 16 sonably believed such force to be necessary to 17 defend the defendant or a third person from 18 what the defendant reasonably believes to be 19 the use or imminent use of unlawful force by 20 such other person; 21 ‘‘(B) if such person unlawfully enters, re- 22 mains after unlawfully entering, or attempts to 23 unlawfully enter a dwelling, residence, or vehicle 24 lawfully occupied by such person; or 25 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 3 •HR 7716 IH ‘‘(C) if such person unlawfully enters, re- 1 mains after unlawfully entering, or attempts to 2 unlawfully enter private property that is owned 3 or leased by an individual, or is occupied by an 4 individual who has been given specific authority 5 by the property owner to occupy the property, 6 claiming a justification of using protective force 7 under this section. 8 ‘‘(3) NO DUTY TO RETREAT.—The defendant 9 has no duty to retreat— 10 ‘‘(A) from a dwelling, residence, or vehicle 11 where the person is not unlawfully entering or 12 unlawfully remaining; 13 ‘‘(B) from private property that is owned 14 or leased by such individual; or 15 ‘‘(C) if the defendant is in any other loca- 16 tion such defendant has the right to be. 17 ‘‘(b) APPLICATION.— 18 ‘‘(1) IN GENERAL.—A defense under subsection 19 (a) shall not apply if the defendant is the initial ag- 20 gressor, unless— 21 ‘‘(A) the defendant has withdrawn from 22 the encounter and effectively communicated 23 such withdrawal to such other person but the 24 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 4 •HR 7716 IH latter persists in continuing the incident by the 1 use or threatened use of unlawful force; 2 ‘‘(B) the defendant is a law enforcement 3 officer; or 4 ‘‘(C) the aggressor’s actions are justified 5 under any other provision of law. 6 ‘‘(2) THIRD PARTY.—A defense under sub- 7 section (a) shall not apply if, under the circum- 8 stances as the defendant reasonably believes them to 9 be, the person whom the defendant is seeking to pro- 10 tect would not be justified in using such protective 11 force. 12 ‘‘(3) FELONY.—The defendant was attempting 13 to commit, committing, or escaping after the com- 14 mission of a forcible felony. 15 ‘‘(c) PHYSICAL RESTRAINT.—The defenses under 16 this section shall extend to the use of physical restraint 17 as protective force provided that the defendant takes all 18 reasonable measures to terminate the restraint as soon as 19 it is reasonable to do so. 20 ‘‘(d) BURDEN.—The defendant shall have the burden 21 of raising any defense under this section. If a defendant 22 asserts that defendant’s use of force is described under 23 subsection (a)(2), the burden shall then be on the Govern- 24 ment to prove beyond a reasonable doubt that the defend- 25 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 5 •HR 7716 IH ant did not reasonably believe that the use of such force 1 was necessary to defend against what the defendant rea- 2 sonably believed was the use or imminent use of unlawful 3 force. 4 ‘‘§ 29. Defense of property 5 ‘‘(a) DEFENSE.—It is an affirmative defense against 6 any charge for a crime of violence that the defendant only 7 used physical force upon another person to the extent that 8 the defendant reasonably believed such force to be nec- 9 essary to prevent what the defendant reasonably believes 10 to be the commission or attempted commission by such 11 person of stealing, property damage or tampering in any 12 degree. 13 ‘‘(b) APPLICATION.—A defense under subsection (a) 14 shall not apply if the defendant uses deadly force unless 15 authorized under subsection (a). 16 ‘‘(c) PHYSICAL RESTRAINT.—The defenses under 17 this section shall extend to the use of physical restraint 18 as protective force provided that the defendant takes all 19 reasonable measures to terminate the restraint as soon as 20 it is reasonable to do so. 21 ‘‘(d) BURDEN.—The defendant shall have the burden 22 of raising any defense under this section. 23 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 6 •HR 7716 IH ‘‘§ 30. Battered spouse defense 1 ‘‘(a) DEFENSE.—Evidence that the actor was suf- 2 fering from the battered spouse syndrome shall be admis- 3 sible upon the issue of whether the actor lawfully acted 4 in self-defense or defense of another. 5 ‘‘(b) PROCEDURE.—If the defendant proposes to 6 offer evidence of the battered spouse syndrome, the de- 7 fendant shall file written notice thereof with the court in 8 advance of trial. Thereafter, the court, upon motion of 9 the Government, shall appoint one or more private psychi- 10 atrists or psychologists or physicians with a minimum of 11 one year of training or experience in providing treatment 12 or services to intellectually disabled or mentally ill individ- 13 uals, who are neither employees nor contractors of the de- 14 partment of mental health for the purposes of performing 15 the examination in question, to examine the accused, or 16 shall direct the director of the department of mental 17 health, or his designee, to have the accused so examined 18 by one or more psychiatrists or psychologists or physicians 19 with a minimum of one year of training or experience in 20 providing treatment or services to intellectually disabled 21 or mentally ill individuals designated by the director, or 22 his designee, for the purpose of examining the defendant. 23 No private psychiatrist, psychologist, or physician shall 24 be appointed by the court unless he has consented to act. 25 The examinations ordered shall be made at such time 26 VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS 7 •HR 7716 IH and place and under such conditions as the court deems 1 proper, except that if the order directs the director of the 2 department of mental health to have the accused exam- 3 ined, the director, or his designee, shall determine the rea- 4 sonable time, place and conditions under which the exam- 5 ination shall be conducted. The order may include provi- 6 sions for the interview of witnesses. 7 ‘‘(c) EXCLUDING CERTAIN EVIDENCE.—No state- 8 ment made by the accused in the course of any such exam- 9 ination and no information received by any physician or 10 other person in the course thereof, whether such examina- 11 tion was made with or without the consent of the accused 12 or upon his motion or upon that of others, shall be admit- 13 ted in evidence against the accused on the issue of whether 14 he committed the act charged against him in any criminal 15 proceeding then or thereafter pending in any Federal 16 court.’’. 17 (b) CLERICAL AMENDMENT.—The table of sections 18 for chapter 1 of title 18, United States Code, is amended 19 by adding at the end the following: 20 ‘‘28. Defense of self or others. ‘‘29. Defense of property. ‘‘30. Battered spouse defense.’’. Æ VerDate Sep 11 2014 00:04 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H7716.IH H7716 SSpencer on DSK126QN23PROD with BILLS