1     
SELF-DEFENSE AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: A. Cory Maloy

5     
Senate Sponsor: David P. Hinkins

6     

7     LONG TITLE
8     General Description:
9          This bill clarifies that an individual is not required to retreat from an aggressor.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that an individual is not required to retreat from an aggressor even if there
13     is a safe place to which the individual can retreat;
14          ▸     provides that an individual's failure to retreat is not relevant when determining
15     whether the individual acted reasonably; and
16          ▸     makes technical changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          76-2-402, as last amended by Laws of Utah 2018, Chapter 324
24          76-10-506, as last amended by Laws of Utah 2014, Chapter 248
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 76-2-402 is amended to read:
28          76-2-402. Force in defense of person -- Forcible felony defined.
29          (1) As used in this section:
30          (a) "Forcible felony" means aggravated assault, mayhem, aggravated murder, murder,
31     manslaughter, kidnapping and aggravated kidnapping, rape, forcible sodomy, rape of a child,
32     object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child,
33     and aggravated sexual assault as defined in Title 76, Chapter 5, Offenses Against the Person,
34     and arson, robbery, and burglary as defined in Title 76, Chapter 6, Offenses Against Property.
35          (b) "Forcible felony" includes any other felony offense that involves the use of force or
36     violence against an individual that poses a substantial danger of death or serious bodily injury.
37          (c) "Forcible felony" does not include burglary of a vehicle, as defined in Section
38     76-6-204, unless the vehicle is occupied at the time unlawful entry is made or attempted.
39          [(1)] (2) (a) [A person] An individual is justified in threatening or using force against
40     another individual when and to the extent that the [person] individual reasonably believes that
41     force or a threat of force is necessary to defend the [person or a third person against another
42     person's] individual or another individual against the imminent use of unlawful force.
43          (b) [A person] An individual is justified in using force intended or likely to cause death
44     or serious bodily injury only if the [person] individual reasonably believes that force is
45     necessary to prevent death or serious bodily injury to the [person or a third person as a result of
46     another person's] individual or another individual as a result of imminent use of unlawful force,
47     or to prevent the commission of a forcible felony.
48          [(2)] (3) (a) [A person] An individual is not justified in using force under the
49     circumstances specified in Subsection [(1)] (2) if the [person] individual:
50          (i) initially provokes the use of force against [the person] another individual with the
51     intent to use force as an excuse to inflict bodily harm upon the [assailant] other individual;
52          (ii) is attempting to commit, committing, or fleeing after the commission or attempted
53     commission of a felony , unless the use of force is a reasonable response to factors unrelated to
54     the commission, attempted commission, or fleeing after the commission of that felony ; or
55          (iii) was the aggressor or was engaged in a combat by agreement, unless the [person]
56     individual withdraws from the encounter and effectively communicates to the other [person his
57     intent to do so] individual the intent to withdraw from the encounter and, notwithstanding, the
58     other [person] individual continues or threatens to continue the use of unlawful force.
59          (b) For purposes of Subsection [(2)] (3)(a)(iii) the following do not, [by themselves]
60     alone, constitute "combat by agreement":
61          (i) voluntarily entering into or remaining in an ongoing relationship; or
62          (ii) entering or remaining in a place where one has a legal right to be.
63          [(3) A person does not have a duty to retreat from the force or threatened force
64     described in Subsection (1) in a place where that person has lawfully entered or remained,
65     except as provided in Subsection (2)(a)(iii).]
66          [(4) (a) For purposes of this section, a forcible felony includes aggravated assault,
67     mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping,
68     rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a
69     child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76,
70     Chapter 5, Offenses Against the Person, and arson, robbery, and burglary as defined in Title 76,
71     Chapter 6, Offenses Against Property.]
72          [(b) Any other felony offense which involves the use of force or violence against a
73     person so as to create a substantial danger of death or serious bodily injury also constitutes a
74     forcible felony.]
75          [(c) Burglary of a vehicle, defined in Section 76-6-204, does not constitute a forcible
76     felony except when the vehicle is occupied at the time unlawful entry is made or attempted.]
77          (4) Except as provided in Subsection (3)(a)(iii):
78          (a) an individual does not have a duty to retreat from the force or threatened force
79     described in Subsection (2) in a place where that individual has lawfully entered or remained
80     even if safety could be achieved by retreating; and
81          (b) the failure of an individual to retreat under the provisions of Subsection (4)(a) is not
82     a relevant factor in determining whether the individual who used or threatened force acted
83     reasonably.
84          (5) In determining imminence or reasonableness under Subsection [(1)] (2), the trier of
85     fact may consider[, but is not limited to, any of the following factors]:
86          (a) the nature of the danger;
87          (b) the immediacy of the danger;
88          (c) the probability that the unlawful force would result in death or serious bodily
89     injury;
90          (d) the [other's] other individual's prior violent acts or violent propensities; [and]
91          (e) any patterns of abuse or violence in the parties' relationship[.]; and
92          (f) any other relevant factors.
93          Section 2. Section 76-10-506 is amended to read:
94          76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
95          (1) As used in this section:
96          (a) "Dangerous weapon" means an item that in the manner of its use or intended use is
97     capable of causing death or serious bodily injury. The following factors shall be used in
98     determining whether an item, object, or thing is a dangerous weapon:
99          (i) the character of the instrument, object, or thing;
100          (ii) the character of the wound produced, if any; and
101          (iii) the manner in which the instrument, object, or thing was exhibited or used.
102          (b) "Threatening manner" does not include:
103          (i) the possession of a dangerous weapon, whether visible or concealed, without
104     additional behavior which is threatening; or
105          (ii) informing another of the actor's possession of a deadly weapon in order to prevent
106     what the actor reasonably perceives as a possible use of unlawful force by the other and the
107     actor is not engaged in any activity described in Subsection [76-2-402(2)(a)] 76-2-402(3)(a).
108          (2) Except as otherwise provided in Section 76-2-402 and for those [persons]
109     individuals described in Section 76-10-503, [a person] an individual who, in the presence of
110     two or more [persons] individuals, and not amounting to a violation of Section 76-5-103, draws
111     or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a
112     dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.
113          (3) This section does not apply to [a person] an individual who, reasonably believing
114     the action to be necessary in compliance with Section 76-2-402, with purpose to prevent
115     another's use of unlawful force:
116          (a) threatens the use of a dangerous weapon; or
117          (b) draws or exhibits a dangerous weapon.
118          (4) This section does not apply to [a person] an individual listed in Subsections
119     76-10-523(1)(a) through (e) in performance of the [person's] individual's duties.