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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 1109 By: Dahm
AS INTRODUCED
An Act relating to firearms; amending 21 O.S. 2021,
Section 1289.25, which relat es to the Oklahoma
Firearms Act of 1971 ; updating statutory reference;
clarifying immunity provi sion for persons asserting
claims of self-defense; authorizing defendant to file
motion to dismiss charges under certain
circumstances; granting def endant the right to fi le
interlocutory appeal after adverse rul ing made by the
court; providing parameters for appeal hearing ;
directing judges to enter certain order at conclusion
of appeal hearing; stating burden of proof for
evidence of self-defense in criminal prosecution;
amending 22 O.S. 2021, Sections 1053, as amended b y
Section 2, Chapter 209, O.S.L. 2022, and 1089.1 (22
O.S. Supp. 2022, Section 1053), which relate to
appeals taken by the state or municipality;
authorizing appeals by the state or municipalities
under certain circumstances; granting the state the
right to appeal certain adverse rulings or o rders;
and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, S ection 1289.25, is
amended to read as follows:
Section 1289.25.
PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
A. The Legislature hereby recognizes that t he citizens of the
State of Oklahoma have a right to expect absolute safety within
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their own homes, places of business or places of worship and have
the right to establish policie s regarding the possession of weapons
on property pursuant to the provisions of Section 1290.22 of this
title.
B. A person, regardless of official capacity or lack of
official capacity, within a place of wor ship or a person, an owner,
manager or employee of a business is presumed to have held a
reasonable fear of imminent peril of death or great bodily harm to
himself or herself or anothe r when using defensive force that is
intended or likely to cause death o r great bodily harm to another
if:
1. a. The person against whom the defensive force was used was
in the process of unlawfu lly and forcefully entering, or had
unlawfully and forcibly entered, a dwelling, residence, occupied
vehicle, place of business or place of worship, or if that person
had removed or was attempting to remove another against the will of
that person from the dwelling, residence, occupied vehicle, place of
business or place of worship.;
b.
2. The person who uses defensive force knew or h ad reason to
believe that an unlawful and forcib le entry or unlawful and forcible
act was occurring or had occurred; or
2. 3. The person who uses defensive force knew or had a
reasonable belief that the person against whom the def ensive force
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was used entered or was attempting to enter into a dwelling,
residence, occupied vehicle, place of business or place of worship
for the purpose of committing a forcible felony, as defined in
Section 733 of this title, and that the defensive fo rce was
necessary to prevent the commission of the forcible felony.
C. The presumption set forth in subsection B of this section
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 t he dwelling, residence,
or vehicle, such as an owner, lessee, or titlehol der, and there is
not a protective order from domestic violence in effect or a written
pretrial supervision order of no contact against that person;
2. The person or persons sought t o be removed are children or
grandchildren, or are otherwise in the lawfu l custody or under the
lawful guardianship, of, the person against whom the d efensive force
is used; or
3. The person who uses defensiv e force is engaged in an
unlawful activity or i s using the dwelling, res idence, occupied
vehicle, place of business or p lace of worship to further an
unlawful activity.
D. A person who is not enga ged in an unlawful activity and who
is attacked in any othe r 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
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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 forc ible felony.
E. A person who unlawfully and by force enters or attempts to
enter the dwelling, residence, occupied vehicle o f another person,
place of business or place of worship is presumed to be doing so
with the intent to comm it an unlawful act involv ing force or
violence.
F. 1. A person who uses defensive force, as permitted pursuant
to the provisions of subsections A, B, D and E of this section, is
justified in using such defen sive force and is immune from shall not
be subject to criminal prosecution and or civil action for the use
of such defensive force, unless the force is determined to be
unlawful.
2. At least ten (10) days prior to the preliminary hearing in a
case where a defendant has been charged and is subject to c riminal
prosecution for the unlawful use of defens ive force, the defendant
may file a motion to dismiss the charges based on a claim that under
the provisions of this section, the d efendant is not subject to
criminal prosecution. If the court denies the m otion to dismiss,
the defendant shall have the rig ht to file an interlocutory appeal
on the ruling made by the court to the district or associate
district court judge having jurisdiction over the case.
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3. The appeal hearing before the district or associate district
court judge shall address whether the defensive force used by the
defendant was unlawful or justified and permitted pursuant to the
provisions of this section. If, after the appeal hearing, the
district or associate district court judge concludes that the
defensive force used was justified and permitted under the
provisions of this section, the judge shall enter a written order
containing findings of fact and conclusions of law that the
defendant is not subject to criminal prosecution and that criminal
charges and proceedings shall be dismissed and shall not be filed
unless newly discovered evidence or evidence not known to the
prosecution at the time is found or discovered . If, after the
appeal hearing, the district or associate district court judge
concludes that the defensive force used was not justified and
therefore unlawful, the judge shall enter an order binding the
defendant over for trial.
4. Once prima facie evidence of justified self-defense has been
raised by the defendant, the State of Oklahoma shall be required to
prove by clear and convincing evidence that the defensive force used
was not justified and therefore unlawful.
5. As used in this subsection, the term “criminal prosecution ”
includes charging or prosecuting the defendant.
G. A law enforcement agency may use standard procedures for
investigating the use of defensive force, but the law enforcement
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agency may not arrest the person for usi ng defensive force unless it
determines that there is probable cause that the defensive force
that was used was unlawful.
H. The court shall award reasonable attorney fees, court costs,
compensation for loss of income, and all reasonable expenses
incurred by the defendant in defense of any civil acti on brought by
a plaintiff if the court finds that the defendant is immune from not
subject to prosecution as provided in subsection F of this section.
I. The provisions of this section and the provisions of the
Oklahoma Self-Defense Act shall not be const rued to require any
person using a weapon pursuant to the provisions of this section to
be licensed in any manner.
J. A person pointing a weapon at a perpetrator in self -defense
or in order to thwart, stop or deter a for cible felony or attempted
forcible felony shall not be deemed guilty of committing a criminal
act.
K. As used in this section:
1. “Defensive force” includes, but shall is not be limited to,
pointing a weapon at a perpetrator in self -defense or in order to
thwart, stop or deter a forcible felony or attempted forcible
felony;
2. “Dwelling” means a building or co nveyance of any kind,
including any attached porch, whether the building or conveyance is
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temporary or permanent, mobile or immobile, which has a roof over
it, including a tent, and is designed to be occupied by people;
3. “Place of worship” means:
a. any permanent building, structure, facility or office
space owned, leased, rented or borrowed, on a full -
time basis, when used for worship services, acti vities
and business of the congr egation, which may include,
but is not be limited to, churches, temples,
synagogues and mosques, and
b. any permanent building, structure, facility or office
space owned, leased, rented or borrowed for use on a
temporary basis, when used for worship servic es,
activities and business of the congregation including
which may include, but is not limited to, churches,
temples, synagogues and mosques;
4. “Residence” means a dwelling in which a person resides
either temporarily or permanently or is visiting as an invited
guest; and
5. “Vehicle” means a conveyance of any kind, whether or not
motorized, which is designed to transport people or property.
SECTION 2. AMENDATORY 22 O.S. 2021, Section 1053, as
amended by Section 2, Chapter 209, O.S.L. 2022 (22 O.S. Supp. 2022,
Section 1053), is amended to read as follows:
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Section 1053. Appeals to the Court of Criminal Appeals may be
taken by the state or a municipality in the following cases only:
1. Upon judgment for the defendant on quashing or setting aside
an indictment or information;
2. Upon an order of the cou rt arresting the judgment;
3. Upon a question reserved by the state or a municipality;
4. Upon judgment for the defendant on a motion to quash for
insufficient evidence in a felony matter;
5. Upon a pretrial order, decision, or judgment suppressing or
excluding evidence where appellate revie w of the issue would be in
the best interests of justice ;
6. Upon a pretrial order, decision or judgment suppressing or
excluding evidence in cases alleg ing violation of any provisions of
Section 13.1 of Title 21 of the Oklahoma Statutes; and
7. Upon an a pretrial order, decision or judgment finding that
a defendant is immune from or not subject to criminal prosecution
under the provisions of Se ction 1289.25 of Title 21 of the Oklaho ma
Statutes.
Priority shall be given to appeals ta ken pursuant to para graph
5, 6, or 7 of this section, and an order staying proceedings shall
be entered pending the outcome of the appeal.
SECTION 3. AMENDATORY 22 O.S. 2021, Secti on 1089.1, is
amended to read as follows:
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Section 1089.1. The State of Oklahoma, by and through the
district attorney or Attor ney General, shall have the right to
appeal an adverse ruling or order of a magistrate sustaining:
1. Sustaining a motion to suppress evidence, quashing;
2. Quashing an information, sustaining;
3. Sustaining a plea to the jurisdiction of the court , failing;
4. Failing to find prosecutive merit in a hearing pursuant to
Section 2-2-403 of Title 10A of the Oklahoma Statutes , sustaining;
5. Sustaining a demurrer to the information , binding;
6. Binding the defendant over for trial on a charge other than
the charge for the original offense, or discharging;
7. Discharging a defendant at the preliminary examination
because of insufficiency of the evidence to establish either that a
crime has been committed or that there is probable cause to believe
that the accused has committed a felony; or
8. Discharging a defendant on a finding that the defendant is
not subject to criminal prosecut ion under the provisio ns of Section
1289.25 of Title 21 of the Oklahoma Statu tes.
Such an appeal shall be taken in accordance w ith the procedures
provided in this act.
SECTION 4. This act shall become effective November 1, 2023.
59-1-937 TEK 1/19/2023 3:17:28 PM