First Substitute S.B. 157

This document includes Senate Committee Amendments incorporated into the bill on Wed, Feb 6, 2008 at 4:21 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Feb 25, 2008 at 8:54 AM by rday. -->

Senator Mark B. Madsen proposes the following substitute bill:

1 RIGHTS OF CITIZENS TO CARRY
2 FIREARMS IN DECLARED EMERGENCY
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Mark B. Madsen
6 House Sponsor: Carl Wimmer
7
8 LONG TITLE
9 General Description:
10 This bill enacts provisions related to the lawful possession, transfer, sale, transport,
11 storage, display, or use of firearms during a declared state of emergency or local
12 emergency.
13 Highlighted Provisions:
14 This bill:
15 . provides that during a declared state of emergency or local emergency neither the
16 governor nor an agency of a governmental entity or political subdivision may
17 impose restrictions on the lawful possession, transfer, sale, transport, storage,
18 display, or use of a firearm or ammunition;
19 . provides that during a declared state of emergency an individual, while acting or
20 purporting to act on behalf of the state or a political subdivision, may not confiscate
21 a privately owned firearm of another individual;
22 . provides exceptions to the confiscation prohibition; and
23 . provides a civil remedy for violation of the confiscation prohibition.
24 Monies Appropriated in this Bill:
25 None

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- 2 - 26 Other Special Clauses:
27 None
28 Utah Code Sections Affected:
29 ENACTS:
30 63-5a-12, Utah Code Annotated 1953
31
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 63-5a-12 is enacted to read:
34 63-5a-12. Prohibition of restrictions on and confiscation of a firearm or
35 ammunition during an emergency.
36 (1) As used in this section:
37 (a) (i) "Confiscate" means for an individual in Utah to intentionally deprive another of
38 a privately owned firearm.
39 (ii) "Confiscate" does not include the taking of a firearm from an individual:
40 (A) in self-defense;
41 (B) possessing a firearm while the individual is committing a felony or misdemeanor;
42 or
43 (C) who may not, under state or federal law, possess the firearm.
44 (b) "Firearm" has the same meaning as defined in Subsection 76-10-501 (9).
45 (2) During a declared state of emergency or local emergency under this chapter:
46 (a) neither the governor nor an agency of a governmental entity or political subdivision
47 of the state may impose restrictions, which were not in force prior to the declared state of
48 emergency, on the lawful possession, transfer, sale, transport, storage, display, or use of a
49 firearm or ammunition; and
50 (b) an individual, while acting or purporting to act on behalf of the state or a political
51 subdivision of the state, may not confiscate a privately owned firearm of another individual.
52 (3) A law or regulation passed during a declared state of emergency that does not relate
53 specifically to the lawful possession or use of a firearm and that has attached criminal penalties
54 may not be used to justify the confiscation of a firearm from an individual acting in defense of
55 self, property, or others when on:
56 (a) the individual's private property; or

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Senate 2nd Reading Amendments 2-25-2008 rd/jlw

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Senate Committee Amendments 2-6-2008 rd/jlw 57

(b) the private property of another as an invitee.
58 (4) (a) An individual who has a firearm confiscated in violation of Subsection (2) may
59 bring a civil action in a court having the appropriate jurisdiction:
60 (i) for damages, in the maximum amount of $10,000, against a person who violates
61 Subsection (2);
62 (ii) for a civil penalty, in the amount of $5,000 per violation, against a person who
63 violates Subsection (2); and
64 (iii) for return of the confiscated firearm.
65 S. [ (b) The court shall award court costs and reasonable attorney fees to a prevailing
66 plaintiff in an action brought under Subsection (4)(a).
67 (c) ] (b) .S As used in this Subsection (4), "person" means an individual, the governmental
68 entity on whose behalf the individual is acting or purporting to act, or both the individual and
69 the governmental entity.
69a S. (5)(a) A law enforcement officer shall not be subject to disciplinary action for refusing to
69b confiscate a firearm under this section if:
69c (i) ordered or directed to do so by a superior officer; and
69d (ii) by obeying the order or direction, the law enforcement officer would be committing a
69e violation of this section.
69f (b) For purposes of this Subsection (5), disciplinary action might include:
69g (i) dismissal, suspension, or demotion;
69h (ii) loss of or decrease in benefits, pay, privileges or conditions of employment; and
69i (iii) any type of written or elctronic indication, permanent or temporary, on the officer's
69j personnel record of the officer's refusal to obey the unlawful order.
69k (6)(a) If a law enforcement officer commits a violation of this section, the officer's liability in
69l an action brought under Subsection (4)(a) is limited to five percent of the damages and civil
69m penalty allowed under Subsection (4)(a) if the officer can show by clear and convincing
69n evidence that the officer was obeying a direct and unlawful order from a superior officer or
69o authority.
69p (b) The balance of the damages and civil penalty, the remaining 95 percent, shall be assesed
69q against the superior officer or authority who ordered or directed the confiscation in violation
69r of this section. .S