A West Virginia lawyer Hiram C. Lewis IV, 41, narrowly lost a race to become the state attorney general in 2008 but has now found himself on the other side of the courtroom charged with malicious wounding and wanton endangerment with a firearm. Lewis is accused of shooting a man at his home in Procious, West Virgina. He is invoking the Castle Doctrine, which allows citizens to use lethal force in defense of their homes. I have been a long critic of Castle Doctrine laws, which have spinned off various extensions for the work place, cars, and other locations. Called “Make My Day” laws in some states, we now have “Make My Day Better” laws allowing people to use lethal force in defense of other property like cars as well as laws like “Stand Your Ground” involved in the Zimmerman case and other cases in Florida.
Lewis claimed the man, Stephen Bogart, tried to break into his home and he shot him in the leg. He told reporters “I was totally within my rights. I was in my home when I made the, when I shot him, after he barged in my residence and busted the door down. It’s in God’s hands now, but we are a Castle Doctrine state.”
However, Bogart says that he was living at Lewis’ house. Yet, Lewis said Bogart was not a house guest or roommate. Rather, he says that he is a homeless veteran he had allowed to live for a week at his camp while he looked for work
Lewis is a sole practitioner who served as the GOP treasurer and ran against Robert C. Byrd for US Senate in 2006. He also lost a bid for West Virginia Attorney General against Darrell McGraw.
These laws are generally written, making it difficult to prosecute homeowners even in cases of mistaken intrusion as when drunken neighbors come into a home.
Here is the code provision:
§55-7-22. Civil relief for persons resisting certain criminal activities.
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
(e) The full and complete civil defense created by the provisions of this section is not available to a person who:
(1) Is attempting to commit, committing or escaping from the commission of a felony;
(2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.
(g) Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty.
Note: WV Code updated with legislation passed through the 2011 4th Special Session
Note the standard is “reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.” The question is whether Lewis reasonably apprehended that Bogart was there to harm him or commit a felony in the residence if he knew him. The key in the case may turn on the different accounts on whether Bogart was staying at the residence. Some reports state that Bogart was able to show that he had possessions in the home as proof that he was living there.
Lewis does not appear able to pay the $100,000 bail and remains in jail.