First Substitute H.B. 78

Representative Stephen E. Sandstrom proposes the following substitute bill:

1 WEAPONS REVISIONS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Stephen E. Sandstrom
5 Senate Sponsor: John L. Valentine
6
7 LONG TITLE
8 General Description:
9 This bill modifies weapons provisions of the Utah Criminal Code on carrying,
10 displaying, and using a dangerous weapon.
11 Highlighted Provisions:
12 This bill:
13 . clarifies the use of force or the threat of force necessary to defend a person against
14 another's imminent use of unlawful force;
15 . clarifies when a person may threaten or display a dangerous weapon in self defense;
16 and
17 . makes certain technical changes.
18 Monies Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 76-2-402, as last amended by Laws of Utah 1994, Chapter 26
25 76-10-506, as last amended by Laws of Utah 1992, Chapter 101

26
27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 76-2-402 is amended to read:
29 76-2-402. Force in defense of person -- Forcible felony defined.
30 (1) (a) A person is justified in threatening or using force against another when and to
31 the extent that [he or she] the person reasonably believes that force is necessary to defend
32 [himself] the person or a third person against [such other's] another person's imminent use of
33 unlawful force. [However, that]
34 (b) A person is justified in using force intended or likely to cause death or serious
35 bodily injury only if [he or she] the person reasonably believes that force is necessary to
36 prevent death or serious bodily injury to [himself] the person or a third person as a result of
37 [the other's] another person's imminent use of unlawful force, or to prevent the commission of
38 a forcible felony.
39 (2) (a) A person is not justified in using force under the circumstances specified in
40 Subsection (1) if [he or she] the person:
41 [(a)] (i) initially provokes the use of force against [himself] the person with the intent
42 to use force as an excuse to inflict bodily harm upon the assailant;
43 [(b)] (ii) is attempting to commit, committing, or fleeing after the commission or
44 attempted commission of a felony; or
45 [(c) (i)] (iii) was the aggressor or was engaged in a combat by agreement, unless [he]
46 the person withdraws from the encounter and effectively communicates to the other person his
47 intent to do so and, notwithstanding, the other person continues or threatens to continue the use
48 of unlawful force[; and].
49 [(ii) for] (b) For purposes of Subsection [(i)] (2)(a)(iii) the following do not, by
50 themselves, constitute "combat by agreement":
51 [(A)] (i) voluntarily entering into or remaining in an ongoing relationship; or
52 [(B)] (ii) entering or remaining in a place where one has a legal right to be.
53 (3) A person does not have a duty to retreat from the force or threatened force
54 described in Subsection (1) in a place where that person has lawfully entered or remained,
55 except as provided in Subsection (2)[(c)](a)(iii).
56 (4) (a) For purposes of this section, a forcible felony includes aggravated assault,

57 mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping,
58 rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a
59 child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76,
60 Chapter 5, and arson, robbery, and burglary as defined in Title 76, Chapter 6.
61 (b) Any other felony offense which involves the use of force or violence against a
62 person so as to create a substantial danger of death or serious bodily injury also constitutes a
63 forcible felony.
64 (c) Burglary of a vehicle, defined in Section 76-6-204 , does not constitute a forcible
65 felony except when the vehicle is occupied at the time unlawful entry is made or attempted.
66 (5) In determining imminence or reasonableness under Subsection (1), the trier of fact
67 may consider, but is not limited to, any of the following factors:
68 (a) the nature of the danger;
69 (b) the immediacy of the danger;
70 (c) the probability that the unlawful force would result in death or serious bodily
71 injury;
72 (d) the other's prior violent acts or violent propensities; and
73 (e) any patterns of abuse or violence in the parties' relationship.
74 Section 2. Section 76-10-506 is amended to read:
75 76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
76 (1) As used in this section, "threatening manner" does not include informing another
77 person of the actor's possession of a dangerous weapon or displaying a dangerous weapon if the
78 actor reasonably believes it to be necessary as provided in Section 76-2-402 .
79 (2) [Every person, except] Except as otherwise provided in Section 76-2-402 and for
80 those persons described in Section 76-10-503 , a person who[, not in necessary self defense in
81 the presence of two or more persons, draws or exhibits any] displays a dangerous weapon in an
82 angry and threatening manner or unlawfully uses [the same] a dangerous weapon in [any] a
83 fight or quarrel is guilty of a class A misdemeanor.