self-defense; home protection – DO PASS AMENDED
Barto moved that S.B. 1145 do pass.
Assistant Majority Research Analyst, advised that S.B. 1145 creates a
new justification for the use of physical and deadly physical force, and
requires the State to prove beyond a reasonable doubt that a defendant did
not act with justification if the defendant presents any evidence of
self-defense (Attachment 20). She reviewed the provisions of the
Justifies a person in using both physical and deadly
physical force against another if the person reasonably believes himself
or another to be in imminent peril of death or serious injury and:
The person that force is being used against was in the
process of unlawfully or forcefully entering a dwelling, residence or
occupied vehicle or was attempting to remove another person against the
person’s will from the dwelling, residence or occupied vehicle.
Applies the presumptions contained in the bill to the
following self-defense statutes:
A.R.S. § 13-404 Justification; self-defense
A.R.S. § 13-405 Justification; use of deadly physical
A.R.S. § 13-406 Justification; defense of a third
A.R.S. § 13-407 Justification; use of physical force
in defense of premises
A.R.S. § 13-408 Justification; use of physical force
in defense of property
A.R.S. § 13-418 Justification; use of force in defense of
dwelling, residence or occupied motor vehicles
Presumes that a person is acting reasonably if the person is
acting against another who unlawfully or forcefully entered the person’s
dwelling, residence or occupied vehicle.
States that this presumption does not apply if:
The person force was used against:
Had the right to be in/was the lawful resident of the dwelling, residence
Was the parent/grandparent/legal guardian of a child being removed from
the dwelling, residence or occupied vehicle.
Is a law enforcement officer entering/attempting to enter a dwelling,
residence or occupied vehicle.
The person using physical or deadly physical force is
engaged in unlawful activity.
States that a person has no duty to retreat before
threatening/using physical or deadly physical force.
States that justification defenses are not affirmative
Requires the state to prove beyond a reasonable doubt that
the defendant did not act with justification under the self-defense
statutes if the defendant presents any evidence of justification.
Requires the court to award attorney fees, costs,
compensation for lost income and expenses incurred by the defendant in a
civil action if the court finds the defendant is immune from prosecution.
Makes other technical and conforming changes.
Contains an emergency clause.
Barto moved that the Yarbrough four-page amendment dated 3/14/06 be
adopted (Attachment 21).
Ms. Whitmer explained
that the Yarbrough four-page amendment dated 3/14/06 removes both sections
of the bill dealing with affirmative defenses (Attachment 21). The
burden of proving a justification defense remains with the defendant and
the defendant must prove the defense by a preponderance of the evidence.
It clarifies that the statute is not limited to situations where the home,
contents of the home or residents of the home are being protected by the
use of force. The amendment provides that the court shall award
reasonable costs to the defendant if the defendant prevails in a civil
action. It expands one of the exemptions from the presumption to
include if a person knew or should have known that the person the force
was used against was a law enforcement officer. It strikes
references to residences and dwellings and replaces them with residential
structure, already defined in statute. It replaces serious bodily
injury with physical injury, which is also defined in statute.
Mr. Yarbrough stated
that under current law, the government must prove all the elements of the
violation of the criminal code beyond a reasonable doubt. The three
levels of proof required are: the preponderance of evidence, which
is the “more likely than not” standard normally seen in civil cases;
clear and convincing evidence, which is a higher standard; and beyond a
reasonable doubt, which is the standard used to take away a person’s
life or liberty. He stated that current law would be preserved by
his amendment. His amendment provides that a defendant can assert
self-defense as one of the affirmative defenses. If the defendant
makes that claim, it is only necessary for him to demonstrate the merit of
his defense by a preponderance of evidence and, under those circumstances,
self-defense would excuse his conduct. Self-defense is the only
affirmative defense presently requiring the defendant to prove his claim
only by a preponderance of the evidence. He brought up the situation
where two “bad guys” go into the desert and only one comes out alive,
claiming self-defense. Another scenario is where an officer stops a
person and that person shoots the officer, again claiming self-defense.
Without his amendment, the self-defense claim is shifted to the State
because what a perpetrator says when he is arrested is part of the police
report and comes into evidence. The State must prove the dead
officer did not act wrongfully and must prove it beyond a reasonable doubt
if his amendment fails.
stated the Yarbrough amendment focuses on the bad guy but the penal system
was not set up to deal only with the bad guy. Where he differs from
Mr. Yarbrough is that the issue for him is where the burden should be put,
on the State to prove a person is guilty or on the citizens of the State
to prove their innocence. This country believes that freedom is
important enough that the burden will be placed on the State, not on the
individual. The presumption is liberty and innocence, and the State
has to prove it if they are going to take away the constitutional right to
freedom. For that reason, he said he opposes the Yarbrough
Senator Timothy Bee,
sponsor, spoke against the Yarbrough amendment. He agreed with
the Chairman’s remarks.
was called for on Vice-Chairman Barto’s motion that the Yarbrough
four-page amendment dated 3/14/06 be adopted (Attachment 21). The
Barto moved that the Farnsworth three-page amendment dated 3/15/06 be
adopted (Attachment 22).
Ms. Whitmer explained
the Farnsworth three-page amendment dated 3/15/06 clarifies that with an
existing use of force in the crime prevention statutes, the statute is not
limited to situations where the home, contents of the home, or residents
of the home are being protected by the use of force (Attachment 22).
The amendment strikes references to residences and dwellings and replaces
them with residential structure, already defined in statute. It
replaces serious bodily injury with physical injury, which is already
defined in statute.
Senator Bee expressed
support of the Farnsworth amendment.
was called for on Vice-Chairman Barto’s motion that the Farnsworth
three-page amendment dated 3/15/06 be adopted (Attachment 22). The
Barto moved that S.B. 1145 as amended do pass.
In response to Mr. Paton,
Senator Bee advised that this legislation passed the Senate unanimously.
He believes this is one of the most important issues to be addressed on
Mr. Gallardo pointed out
that vehicle is not defined in the underlying bill. He asked the
need for the definition in the amendment.
Chairman Farnsworth said
that has not come up as an issue.
Senator Bee said he
would be happy to explore whether a definition is necessary.
Mr. Downing queried
whether this is applicable for attempted entry, such as someone grabbing a
door handle of a car, and whether it could be used as a defense.
Chairman Farnsworth stated that the standard is that a person is justified
in using deadly physical force if he reasonably believes he or others are
in imminent peril of death or serious bodily injury if that person has
threatened or is in the process of unlawfully entering or has forcibly
entered the dwelling or vehicle.
Edwin Cook, Executive
Director, Arizona Prosecuting Attorneys’ Advisory Council (APAAC),
testified in opposition to S.B. 1145. He said the due process clause
in the U.S. Constitution requires that in a criminal case, the State must
prove all the elements in a case beyond a reasonable doubt to a jury.
The basis for the Council’s opposition is that current law protects
responsible law-abiding gun owners in the State. Current law has
been in effect since 1997 and to date no alleged abuses have been brought
to the Council’s attention.
pointed out that he has been told that although there have been no proven
abuses, there have been alleged abuses.
Mr. Cook advised that
current law resulted from solid policy. The proposed legislation is
designed to benefit the law-abiding citizens; however, he does not believe
it will do that.
Mr. Miranda noted this
legislation shifts the burden of proof and the focus is primarily on the
victim. He asked Mr. Cook whether situations could arise where this
legislation will be problematic. Mr. Cook explained that prior to
1997, statements by defendants invoked the responsibility of the
prosecutor to prove the absence of self-defense. He said that was
not successful and individuals who did not deserve the defense of
self-defense were either being acquitted, there were hung juries or there
were directed cases of acquittal. The burden at that point was
proving the absence of self-defense, and that is what precipitated the
change in law. There is nothing that prevents anyone from protecting
himself and claiming self-defense. He advised that cases are
investigated but not all cases are filed. It is the obvious
non-self-defense cases that get filed.
Mr. Miranda said his
concern is for the innocent victim. He asked how big a problem this
will be if this legislation passes. Mr. Cook said he cannot answer
that, but he believes tragedies will occur if this legislation is
implemented. He noted this is a policy decision for the Legislature.
John Wentling, Vice
President, Arizona Citizens Defense League, deferred his time to Mel
representing himself, testified in support of S.B. 1145. He
maintained that prior to 1997, the system worked. He described a
scenario that he feels is justification for changing the law back to where
it was before 1997. He advised he is the attorney for Harold Fish
who defended himself against a homeless man with two dangerous, aggressive
dogs during a hike in the mountains. The dogs, as well as the
homeless individual, charged him even though he shouted a warning to stop.
The homeless person was shot. Mr. Fish contacted law enforcement,
cooperated with them and recounted the events for them. The
detective at the scene concluded it was self-defense. Eventually he
was charged with second-degree murder. The problem is that the
Arizona Supreme Court has ruled that one cannot put on an affirmative
defense at the preliminary hearing, so the case must be brought to trial.
By shifting the burden of proof to the defendant, Mr. Fish has
to prove self-defense. He believes policies should be designed to
protect innocent people, and this legislation will do that.
Mr. Miranda said he is
troubled by changing the law for one case.
Mr. Quelland queried
whether there will be more or less cases of self-defense if this proposal
passes. Mr. McDonald stated there were more cases of self-defense
after 1997. It made it easier for a prosecutor to bring a
questionable case because the burden was shifted to the defense. He
said he thinks current law encourages cases.
Mr. Quelland asked if
there is proof that plea bargains have increased because of the 1997
change. Mr. McDonald replied that any time a prosecutor has a charge
of murder or serious injury, it involves mandatory time, and that gives
prosecutors enormous power to bring about pleas.
Dave Kopp, President,
Arizona Citizens Defense League, testified in support of S.B. 1145.
He pointed out that the bad guys are not likely to take advantage of a
self-defense justification. It is a simple question of the
prosecution having to prove its case against the bad guy. In
addition the State collects all the evidence, so everything is in favor of
representing himself, spoke in support of S.B. 1145. He advised
that no study or cases were offered to the Legislature in 1997 when the
law was changed. In response to Mr. Miranda’s comment about
changing the law for one case, he related that other cases exist that
justify a change in law. The issue in a self-defense trial is not
whether the government can prove its case; it becomes whether the
defendant can prove he did not commit the crime. When a person is
justified in conduct, he has not committed a crime.
representing himself, expressed support of S.B. 1145. He said he
was stunned when the burden of proof was shifted in 1997. He opined
the law was changed so prosecutors could more easily get convictions.
He asserted that the law definitely needs to be changed.
representing himself, testified in support of S.B. 1145. He gave
an illustration of a female who is being chased and is in fear of her
life. She draws a defensive tool when she is cornered to show that
she is armed. At that point, she does not have the legal
justification for pulling out a gun but she has made a move toward the
completion of an act of shooting the individual chasing her. She
gets charged with aggravated assault and she will do time for that, just
because she was in fear for her life. He stated that is the reason
for changing the burden of proof.
Persons in support of
S.B. 1145 who did not speak:
Mary Arnold, representing
Legislative Liaison, National Rifle Association of America
Gary Christensen, Arizona
State Rifle & Pistol Association
Frederick Dahnke, Arizona
Citizens Defense League
Persons in opposition to
S.B. 1145 who did not speak:
Executive Director, Arizona Association of Counties
Edwards, Lieutenant, Phoenix Police Department and Arizona Association of
Chiefs of Police
Government Affairs Director, Arizona Sheriff's Association
was called for on Vice-Chairman Barto’s motion that S.B. 1145 as amended
do pass. The motion carried by a roll call vote of 6-3-0-0
Without objection, the
meeting adjourned at 11:50 a.m.