A Utah Republican has pulled back a bill that would require gun owners to report any use of force in self-defense to local law enforcement, in part to address concerns from some local Second Amendment advocates.
Bearing Arms first reported on HB 133 in early January, and noted some issues with the legislation as it was originally introduced. In its initial form, the legislation would have required anyone using force to defend themselves or others to inform law enforcement of their actions "as soon as the actor isn't in imminent danger" in order to have a pretrial hearing where a judge would decide whether their use of force was reasonable.
I wrote at the time that it seemed to me that Rep. Mike Kohler's bill "directly conflicts with the Fifth Amendment's right to not be a witness against themselves in a criminal trial," noting that "informing police that you used force to protect yourself doesn't indemnify you from prosecution" and "could very well be the trigger that leads to someone being prosecuted by an overzealous anti-2A district attorney."
Kohler attempted to address those concerns in a substitute bill introduced in mid-January. The current version of HB 133
"automatically provides a defendant with a prima facie claim of justification at a pretrial justification hearing if the defendant reported, or caused another individual to report, the defendant's use of force within 24 hours after using the force."
Prosecutors must show "clear and convincing evidence" that the use of force wasn't justified in order for criminal proceedings to continue, and of course at trial they must prove beyond a reasonable doubt that the use of force wasn't justified in order to obtain a conviction.
Kohler said the bill gives law enforcement the ability to interview those who use lethal force sooner rather than later.
He referenced the 2024 road rage shooting that happened at the Ross Creek entrance of Jordanelle State Park in Wasatch County, which resulted in the death of Patrick Hayes. Greg DeBoer, who claimed he used lethal force out of self-defense, is charged with obstruction of justice for burying the gun he used to kill Hayes.
DeBoer did not call 911. A passerby reported Hayes lying on the ground the following morning. Kohler said that if H.B. 133 had already been in effect, a call to 911 could have been made sooner.
Kohler said he has received pushback from 2nd Amendment rights groups about H.B. 133 because it could be seen as a violation of the 5th Amendment, including the right to remain silent.
“That’s not what my intent was,” Kohler said. “My intent was to incentivize somebody who uses lethal force to report it so that the facts could be available.”
He added that reporting the situation may even “bode well” for the person who acted out of self-defense.
“It would show at least a little bit of desire to solve the problem because they thought they did it in a way that they had no choice,” Kohler said. “I mean, that’s what self-defense is, right?”
The current version of HB 133 has the support of Utah State Rifle and Pistol Association and President Larry Scanlan, who says it "would help the police" in any investigation.
I think the changes that Kohler has made to his original bill are an improvement, but I'm still not convinced that HB 133 is necessary.
As I wrote the first time I covered the bill:
Is it smart to inform police after you've been forced to defend yourself or others? Yes, though it's also wise to contact at attorney and to say as little as possible without them present. In the case of the shooting of Patrick Hayes, though, Greg DeBoer is already facing charges of obstruction of justice that directly stem from his decision not to contact police and to bury the gun he used in the shooting. There are already laws in place to deal with the incredibly rare circumstances of Hayes's death, and adding one more offense that could be charged after the fact isn't going to accomplish anything.
HB 133, in its current form, doesn't create a new criminal offense. Instead, it denies someone the opportunity to have a pre-trial justification hearing if they failed to report their use of force to law enforcement within 24 hours.
I'm not sure this entirely addresses the Fifth Amendment issue, to be honest. Take a recent case out of Virginia, where an individual was charged with murder after he shot and killed a woman who allegedly tried to rob him when he was selling her marijuana. A jury acquitted him at trial, ruling that he acted in self-defense, but if this had happened in Utah would the man have been incriminating himself in an illegal drug deal by reporting that use of force to police?
Again, I understand where Kohler is coming from, and I continue to believe it's smart to inform police as soon as possible after you've been forced to defend yourself or others. But I also believe that our individual rights are more important than making it easier for police to do their job, and when those two considerations clash, safeguarding our civil liberties must come first. Even if this bill satisfies Second Amendment advocates like Scanlan, I'm not convinced it conforms to our Fifth Amendment right to not be a witness against ourselves in a criminal trial.
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