S.B. 105 Use of Force Amendments: transcript

Thank you Mr. Chair. Um, this is a, um, bill that is going to help us decide how we are going to deal with, um, one of the episodes that happened this summer. I didn't know King's Rally and I apologize for not being here, uh, with the last, uh, meeting session gets chaotic. So thank you for this time. Uh, this bill is also a bill about fourth 14th Amendment, which is due process on Juab June 14th. We had a tragedy at the No Kings rally. December 3rd was when the charges were brought to give all parties a path forward. Instead of waiting for six months, we need to find a clearer path. This bill is not about the Second Amendment Act to keep and bear arms responsibly, still protecting self-defense against immediate personal violence. It does not mitigate the, um, the last, uh, case we've had about Second Amendment with, um, DC versus Heller to have arms during a militia without being connected to a militia. It does not mitigate McDonald versus Chicago. Reasonable gun regulations remain constitutional. It does not mitigate two, the 2022 case with a New York State Rifle Pistol Association v Bruin consistent with na na nation's historical tradition of firearm regulation. What it does do is it is giving us a reason why about half of the states without statutes on this issue have no case law or point to it. So we are trying to create a situation where we are not going to be silent on what happened at that rally, and we are gonna try to create a path forward that's more clear. So I have two bills in front of me, one with a justification hearing and one without, and we landed on the one without a hearing. So I am open to working with anyone to make this a better bill. We did work with the Salt Lake, uh, district attorney. And, uh, this is just to try to mitigate reckless behavior. We all believe that having a weapon, using a weapon responsibly is important. We are trying to deal with, um, reckless behavior or a mistake that had happened and trying to come to a speedy conclusion. And with that, I am open for questions. Thank You. I have a couple questions. Um, and they're sincere.

So now this actually creates a situation where the defendant is charged with recklessly or with criminal negligence injuring or causing death of another individual while using force, the defendant alleges was justified against a different individual. So on line 45, that would take away the silent part and would actually add, um, So this, this would, this would, this would allow a different charge to be filed, recognizing he may have thought he was doing good, but he still killed somebody. Yes. Who is innocent? Okay. Um, all right.

Alright. Good afternoon, Mr. Chair and members of the committee. Brett Robinson, chief Policy Advisor for the Salt Lake County District Attorney's Office. And we are supportive of this, of this bill. It is true as we were going through the process of reviewing the No King shooting, that there, it was clear that there was a gap in the law. Um, and this clarifies it. It does. We think it's important for this clarity to come, um, in some states that do not have guidance on this, and a lot of that policy is set by the courts and through case law, and this gives greater clarity for both individuals who are using force in defense of theirselves and those people who might be injured, um, in the crosshairs. Okay. So we encourage support of this bill

He's been charged with manslaughter. Okay. And is that what degree felony is that? That's A second degree felony. Okay. And, um, obviously he's presumed innocent until proven guilty in a court of law, but yes, if this bill, if this bill had passed a year or two ago, um, and he was charged under this bill, would've been a second degree felony, a third degree felony, or class A misdemeanor. So it's very likely that it would remain the same second degree as a second degree felony. Uh, recklessness is the men's ray that's required for manslaughter.

So it, it will actually be the same since it is the same law. What would be different with this though, is that there's clarity about whether or not self-defense and transferred intent for self-defense applies in Utah. Okay. And if it does, to what extent is it a complete ban? Um, if somebody is acting in self-defense for what other collateral damages happen, is it limited to just, um, only if they're acting reasonably? Or is it somewhere in between, which is what most states have done when they've taken legislative action and they say, yes, you do have the ability for self-defense for reasonable if, if you're reasonable, it covers everything. But if you are criminally negligent or reckless, then it doesn't apply.

He has not been charged with anything. Okay.

I appreciate it. My name's Bill Pederson. I'm a director with Utah Shooting Sports Council, and we oppose this bill. Uh, accountability already exists in our laws for recklessness, for reckless or negligent harm. SB one oh five's problem is denial of judicial, uh, review. So this puts ownership on the prosecutors to make it, uh, basically imperative to have a fair, uh, uh, hearing beforehand, self-defense against an attacker. And a third, uh, and third party harm are separate legal questions. Uh, SB 1 0 5 Pro imer improperly merges them procedurally, even though they remain distinct and sustainably. It's, excuse me, it's unfortunate that this happened at the No Kings rally, um, to see a security group shoot on their own protest, and hopefully, uh, in the future organizations like that will take better care of their administrative procedures. And, uh, with that, I turn my yield back.

Uh, thank you Steve Burton representing the Utah Defense Attorney Association. Um, Senator Riebe, I think is trying to solve a problem and, and figure out exactly how to fill that gap. Uh, she's been great to work with. Um, she has two versions of the bill and one version of the bill gets rid of justification hearings in situations like this. And that's the thing that we're most concerned about right now. The justification hearing exists when somebody, which Version did she present? Uh, the one that removes the justification. Okay. Um, hearing. And so we're, we're most concerned about removing that when somebody is claiming that they were trying to act in defense of themselves or others, that the first time you would be able to then present your defense of others, uh, defense would be at a trial, and that may be a year or two years down the road and hundreds of thousands of dollars into the prosecution and the defense. And so the justification hearing allows that determination to be made much earlier in the process. And so getting rid of that hearing completely in these types of situations is very concerning to us.

So I, I suppose I, I want to understand the justification hearing, and I, I think I do, but I, I, I'm not sure why the sponsor decided to land on, I, I don't know what the differences are between the two versions of the bill, except one does have the justification area and this one doesn't. But, um, in the scenario that they just went over where the charges for the, for the, in this particular case, uh, if the justification hearing was still, let's say, applicable in this bill, and they went through the justification hearing and, and the justif, the result of the justification hearing was that, that it was not justifiable. All things move forward the same as they would with the charges. If, if, but if, this is a long question, but if the justification hearing found that it was justified, what does that change? Uh, the prosecution would be barred.

Oh, my name is Clark Apo and I chair the Utah Shooting Sports Council. Probably the best way to fix this bill would be to vote no on it. Okay. Um, I wanna be very clear at the outset. Uh, this is not an argument against accountability or for, you know, for harm to innocent third parties. Utah law already allows for prosecution when someone acts recklessly or negligently and injures a bystander, that authority is not in dispute. My concern with SB 1 0 5 is procedural. It's not ideological. Uh, the justification hearing has worked fantastically. Uh, it's not broken, it's not deficient, it's not lacking. Um, the justification hearing process allows a judge to determine early and very efficiently whether a defendant's use of force against an aggressor was lawful 1 0 5 would deny that hearing entirely based solely on the presence of a third party injury charge without any judicial fact fighting or appropriate due process. Uh, the problem with this one is that because self def, self-defense and third party harm are two legally distinct issues, but yet SB 1 0 5 merges them somehow in a very awkward way. And as such, denies that justification hearing. Thank You. Thank you.

Yes. My name is Raelle Cunningham. I live in Utah County. Um, I am representing women for gun rights, um, women, especially mothers and survivors of domestic violence. And those physically smaller than their attackers rely on Utah's self-defense protection. Um, as an equalizer in life-threatening situations. SB 1 0 5 creates legal uncertainty at the worst possible moment when a law abiding citizen must make a split decision, uh, split second decision to survive. While we all agree that reckless conduct should be punished, the bill shifts the focus from the criminal, uh, the criminal aggressor to the victim who is fighting for his or her life. In chaotic high stress attacks, perfection is impossible. Uh, this proposal risks criminalizing defense actions after the fact. Using hindsight to second guess survival decisions, law abiding citizens already face investigation and scrutiny when they use force. SB 1 0 5 adds another layer of fear that even justified self-defense could lead to prosecution. If anything goes wrong, uh, we just urge you to protect the rights of responsible citizens and oppose this bill. Thank you.

Yeah, I, I guess the first thing I want to know is, uh, to the bill sponsor, do you feel the justification hearing is the meat of the bill? Like, is that something that you need in this bill?

No, my bill currently doesn't have the justification hearing, but I am willing to move in that direction if you'd like me to. I am. I, like I said, this is a fourth amendment due process. I wanted the people that were involved in this situation to have a more speedy trial. It was six months because we were silent on the actions we were supposed to take. As the, uh, chair mentioned, this wouldn't have changed the outcome at all, but it would've just maybe have created a more quicker outcome so that the people involved didn't have to wait six months.

Let me, let me rephrase. Okay. Are you trying to get rid of the justification in these I situations?

I'm not. Okay. Um, I probably can't get a sub out in, in time. I have a bill that's with a justification. Is that public? Uh, no, because we went with the one without, so I have something ready. I'm willing to work with anybody who would like to work with me on these bills. I have two bills that were prepared and I went with the one that was, um, I felt less restrictive and figured I'd take the temperature of the body.

Okay. I, I'll, I'll just be candid. I am concerned about teeing out the justification. Okay. Like if you're trying to fill in a hole of something that happened in that. But I don't want to use a bad situation to, to undo a policy that we have voted that we wanted. And so, um, so I'm happy to to work with you a little bit on that, but I'm not gonna, I I can't go for the bill as it is today. And so if, if someone else wants to try to move it, you might, you may have the votes. I don't know. But I, I can't be there while the, the removal of the justification defense process is in the bill. I hope that makes sense. And so I, I just wanted to get your, your feel as to whether that's the core of what you're trying to do or not. And it sounds like it's not. So I'm happy to work with you to try to remove that part.

Thank you. Um, two thirds of our states have statutes that make it not silent on this kind of incident. And we're trying to close that loophole. So my intention is to close that loophole. However I can do that is my intention. Okay. And I'd be glad to work with you. Like I said, I have a bill ready to go if you'd like to look at that one instead.

Senator Escamilla? I was Just going to move to adjourn.

Thank you Mr. Chair. We presented this bill. Um, Let me clarify something really quick. Sure. There is a sub on the system. Yeah.

Thank you. Uh, I appreciate your time today. This bill is a, um, we discussed it at length, uh, the last time I was here. So I think I'll just talk to some of the changes. Uh, we discussed that this is Bill that is going to, the intent of this bill is to bring closure and predictability to, um, an event that happened this summer at Nose Kings rally. So, um, an innocent by bystander was, um, unfortunately killed during a shooting. And so when we think about that person having that experience on June 14th, and then having to wait till December 3rd to, um, get some answers, I thought that there should be a better process. So as, um, we started looking at this, there's 23 states that have a better process than we do and brings closure and predictability in a, in a more rapid fashion. So we have, uh, we talked about not having a jurisdiction hearing and that was not, um, something that we wanted. So we went back and we made an amendment. And this now is a jurisdiction hearing and I have an expert with me that can probably explain it better than I can. So with that, I'll give my time to my co presenter here. Alright,

Go ahead. Thank you. And thank you Mr. Chair. Uh, my name is Brett Robinson. I'm the Chief Policy Advisor at the Salt Lake County District Attorney's Office. And as, um, Sandra Rebe talked about, maybe, Maybe pull that mic just a little bit closer. You can pull the whole thing. There you go. Okay. Um, and as we discussed, we have a good system in Utah with justification hearings and self-defense statutes. However, they work very well in that context, again, in that context about using force against an aggressor. But they're silent in the context of what happens when you're justified in using force against an aggressor, but a bystander accidentally gets injured or killed. And so what we wanna do is create some clarity around that situation, um, because right now in that situation, it's not clear if a justification hearing will apply, and it's not clear if that defense will apply at trial. Um, and there are two important legal concepts that, um, that are at play here. One of them is transferred intent, and we have that in Utah right now, and that's under sec. That is in the code under 76 2 1 0 5. And what that basically says that if, if somebody has the intent to injure or kill a person and they, and that they injure or kill a separate person, then that intent transfers. So if I wanted to kill person A and I accidentally kill person B, I can be held even liable for murder, for killing person B. Um, what isn't clear with that though is does that apply in situations where self-defense applies? And so right now, even if you are perfectly justified in shooting person A and accidentally kill person B in Utah, you could be charged with murder for that offense. So what this bill does, first of all, is makes it clear that that's not going to happen in Utah. And with the substitute, and I'll direct the, um, This body's attention to it starting in line 35. Um, so that transferred intent will not apply to establish that an actor acted intentionally or knowingly in injuring or causing the death of an individual if they are justified under our current self-defense laws. So in that situation, for example, um, then you can't be held liable for killing somebody for murdering that other individual. Um, but what this does do though is clarify for the first time that if you do kill somebody unintentionally, and in that use of for self-defense, if you're reckless or criminally negligent in the use of that, that you are entitled to a justification hearing, um, that it will go to that hearing. Um, the defendant would still have to prove that they were, um, prima facie claim of self-defense against the initial aggressor and that they were not negligent or reckless in the, in the use of force against the bystander. And if they do that, then the burden switches to the prosecution to disprove either one of those by clear and convincing evidence. And if that is met, then it still can go to trial where those things can be addressed in new. Um, so what this does as well is it just makes it very clear that when people use self-defense, that if they act reasonably, that they are protected under Utah law. However, if they act criminally negligent manner or recklessly, then they can be held accountable for bystander injury. And that's basically what this does. I'm happy to answer any questions that the committee may have. Thank

Yeah. So if I just want to put out a few scenarios and see where, where it would go, because I, I, I don't, a lot of times, unless we have an actual fact scenario, it's hard to know how, how you intend for this to happen. It also helps later if anyone's looking at this law, we can understand what the purpose of, of the legislation is. So let's say that you're in a crowd, it's similar to the, uh, the no Kings protest type thing. Someone brandishes a weapon and is, let's say they actually fired shots. Okay? So there's something going on there. Mm-hmm. Um, but there is a crowd behind the person and someone else pulls out a weapon and fires at the shooter and it, but there's a big crowd behind them and they miss and it kills someone behind the shooter. What would happen in that scenario? Okay. And we're talking about the second shooter in this scenario, correct?

Yes. Mr. Chair. And thank you. So that individual there, um, if they cause harm to another individual, a bystander, we'd have to first look at whether that first instance was justified. So if they were justified in using force against the first person, we'll presume for this example that they were justified because they're already putting people in danger in shooting. And once that happened, um, automatically we could not charge that second shooter with, uh, with knowingly or intentionally killing somebody else. So that would be off the books with this law right now, they could be charged with murder if they did hit and kill somebody with the transferred intent. So they could, couldn't do that. Um, then it would, if we did feel like in that act of using self-defense, if they were criminally negligent or reckless in the way they used it and other people were injured, then potentially they could be charged with crim, um, negligent homicide if they were criminally negligent or manslaughter if they were reckless. But if that were the charge that they were facing, they would be entitled to a justification hearing where that would be adjudicated before trial. And only if the government could overcome that by clear and convincing evidence, then it would proceed to trial.

So let me ask a couple other follow ups. So let's say that the person who is shooting it knows that they are not a good shot, knows that they are, that they don't practice regularly, but they're aiming in the general direction of the shooter and they hit a bystander. Is that criminally negligent or reckless?

That's a a great question. Thank you, Mr. Chair. Um, and it, it de it depends as all things, but the standard for criminal negligence is if there's a substantial and unjustifiable risk. And if they ought to have known about that and proceeded anyway. And so if they were aware of that and that they were in a good shot, then those would be factors that would mitigate against them being acting in a reasonable manner and perhaps being criminally negligent.

Okay. And, and I guess what I worry about is are we creating a scenario where legitimate self-defense becomes less justified in it? Because even the, the act of pulling and shooting back could have a very de, you know, deterring effect on the shooter or even distracting to the shooter. Uh, you know, as far as now they're, they're focusing on that person and other people can get away. Um, even if they, you know, even if they know there's a loach possibility of them hitting someone, um, you know, if they have a handgun and they're, you know, a certain distance away, they know they're probably not gonna hit the target, but there may be an actual result from it. I'm just trying to get my arms around the contours of this, uh, you know, and, um, whereas I think if they were, if they weren't even aiming at the person that had the gun and they just start firing into the crowd, uh, say you have the gun. I'm the, the respondent, and I'm aiming this way, you know, towards the crowd out here, you know, not anywhere near you. I, I can see that being reckless. I can see that being a little, but if I'm aiming towards you as the shooter, then it, but I know I'm a bad shot. That's what I'm, I'm trying to get at. Like, does the, then you're getting into the psyche of the person and it gets into a tough, tough area. And, and part of the justification is do we want to open up that gray area, is what we're trying to get at in this? Sure. Okay.

Thank you. And if I, if I may, um, address that Mr. Chair. Um, yes, please. I think that for one, I think that this bill actually gives greater clarity and greater protection for somebody who's using self-defense in that scenario. Because right now, if somebody uses self-defense in that scenario and they're a perfect shot and they think they have a clear backdrop and that bullet even goes through their intended target ricochets and hits somebody else, kills that individual, um, completely reasonable. Right now, under the transferred intent doctrine, um, what is clear is that we could hold that person accountable for murder. And it's not clear that any justification would apply to the bystander. And so they might be able to go directly to trial for murder in that scenario without a justification hearing under the current law. Right now, in that scenario, um, it, first of all, it wouldn't be charged with this new statutory framework for sure. Um, but they would be entitled to justification, um, the defense and the hearing, and if they acted perfectly reasonable, then it wouldn't even get to trial even if they were charged, if that makes sense.

Okay. Alright, thanks.

Uh, thank you Mr. Chair. Make a motion that we, um, delete, embody, entitled SB 1 0 5 and substitute with, um, uh, first substitute SB 1 0 5.

Um, briefly, I think that this just makes more clarity. I think that it, um, all the incidents that we just mentioned would actually provide better clarity instead of more confusion. So that's the intent of this bill, and I think it serves that purpose. Well,

Thank you, Mr. Chairman. Make a motion that we favorably recommend first substitute 1 0 5 to the floor.

I'm gonna be a, a yes today. I may not be there on the floor. I I kind of was hoping to hear more from the public as to the changes in the sub, but I didn't hear much in that regard, but I'm sure that we'll hear more feedback as it moves along. And so I just, I didn't want you to feel like I'm like hurrah for all time, but I want to be there today and I want to hear from the public on the changes And I'm ditto to what he said.

Um, I would never take for granted your cheerleading skills, so, um, I'll keep working. Thank you.

to me from an incident that happened this summer on June 14th. We had a tragedy at a No Kings rally on December 3rd, uh, was when the charges were brought to give all parties a path forward. Instead of waiting for six month, we'll have a, have a clearer path forward with this bill. Uh, when we first introduced this bill, we eliminated the hearing for justification and as we discussed this bill with the Salt Lake City da, we decided to add that hearing for justification back in. So, um, this bill would actually provide a path forward. It is, uh, something that we do in 23 other states. Uh, we are silent on how we'd move forward with that tragedy that happened in Salt Lake City. And so with that, I am open for questions.

I do. Okay.

Uh, I thought that was adopted in, um, in our senate meeting.

Yeah, it's just a clarification. Oh, thank you. Uh, the substitute is just a grammatical error that they wanted to fix on line 39 from section two section. Thank you. Sorry. I was surprised by that.

I call the question please. Thank you President. And