Ralene Whitmer, 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 bill:

· 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 force

- A.R.S. § 13-406 Justification; defense of a third party

- 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 or vehicle.

- 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 defenses.

· 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.

Vice-Chairman 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.

Chairman Farnsworth 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 amendment.

Senator Timothy Bee, sponsor, spoke against the Yarbrough amendment. He agreed with the Chairman’s remarks.

Question was called for on Vice-Chairman Barto’s motion that the Yarbrough four-page amendment dated 3/14/06 be adopted (Attachment 21). The motion failed.

Vice-Chairman 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.

Question was called for on Vice-Chairman Barto’s motion that the Farnsworth three-page amendment dated 3/15/06 be adopted (Attachment 22). The motion carried.

Vice-Chairman 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 self-defense.

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.

Chairman Farnsworth 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 McDonald.

Mel McDonald, 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 the State.

Michael Anthony, 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.

Alan Korwin, 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.

Charles Heller, 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 self

Bryan Ginter, representing self

Darren Lasorte, 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:

Nicole Stickler, Executive Director, Arizona Association of Counties

Eric Edwards, Lieutenant, Phoenix Police Department and Arizona Association of Chiefs of Police

Rebecca Blackburn, Government Affairs Director, Arizona Sheriff's Association

Question 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 (Attachment 23).

Without objection, the meeting adjourned at 11:50 a.m.

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