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After Utah officer’s death, lawmakers weigh increased penalties for people who kill while fleeing from police

(Rick Egan | The Salt Lake Tribune) West Valley City intern Police Chief, S photo of West Valley City Officer Cody Brotherson, during a memorial ceremony at Fairbourne Station Plaza in West Valley City. Cody Brotherson, was killed in the line of duty one year ago today. Monday, November 6, 2017.

A West Valley City police officer’s death has spurred a Utah legislator to try to bring more serious penalties to people who kill someone while fleeing from police.

Cody Brotherson was killed on Nov. 6, 2016, when he was struck by a stolen vehicle — in which three teens were riding — while laying down a set of spike strips. After admitting to charges in juvenile court last year, the youths were ordered to spend time a secure juvenile care facility.

In the aftermath of 25-year-old Brotherson’s death, a legal “loophole” was identified, according to Rep. Paul Ray, R-Clearfield.

In Utah law, there are a number of crimes that are considered “predicate offenses” to murder. This means that if someone dies during a kidnapping, for example, the suspect can be charged with murder without prosecutors having to show at trial that the defendant intended to cause another person’s death.

There are more than 20 predicate offenses already in Utah code — including sexual abuse crimes, child abuse, robbery and felony discharge of a firearm — but Ray wants to add one more.

House Bill 84 would add fleeing from police as a predicate offense to murder.

“Heaven forbid we actually hold a criminal accountable,” Ray said during a House Law Enforcement Committee hearing Thursday afternoon. “ … This is something that we just need to do.”

Chris Detrick | The Salt Lake Tribune Rep. Paul Ray (R-Clearfield) speaks during a Law Enforcement and Criminal Justice Interim Committee meeting about the Federal 1033 Program in the House Building Wednesday September 17, 2014. The Federal 1033 Program distributes surplus military weapons and equipment to local law enforcement agencies.

But some at the hearing expressed concern that while other predicate offenses require planning and are thought-out actions, making the decision to flee from police is more of a split-second decision.

“What concerns us about this bill is it makes the predicate act for murder something that is not deliberate in nature,” said Marshall Thompson, the director of Utah’s Sentencing Commission.

The bill has the support of police and prosecutors, who say criminals have learned that police are not engaging in as many high-speed chases as they once did.

“They’ve decided that fleeing increases their chances of getting away,” said William Carlson, a prosecutor with the Salt Lake County District Attorney’s Office.

Carlson said that up to this point, it has taken “legal creativity” to charge a defendant with murder while fleeing from police — a rationale which has not yet been tested in Utah’s appellate courts.

The bill passed out of committee with a favorable recommendation on Thursday, and will now go to the full House of Representatives for consideration.

Ray’s bill is not the only legislation proposed this year in response to Brotherson’s death. Rep. Mike Winder, R-West Valley City, has filed HB 190. This bill would allow prosecutors to file charges in the adult system if the youth is at least 15 years old and accused of killing a police officer. Current law allows charges to be directly filed to adult court only if the youth is at least 16 years old.

The three teens accused of hitting Brotherson were originally charged with murder in juvenile court, and prosecutors did not seek to have the case moved to the adult system.

Each boy pleaded guilty to lesser charges last June. One admitted to second-degree felony murder for “recklessly” causing Brotherson’s death, while another admitted to manslaughter. The third teen, who told investigators that he urged the driver to stop the car, did not admit to any charges directly related to Brotherson’s death.

A juvenile judge ordered all three to be locked up in a secure juvenile facility “for as long as possible.” But because their cases remained in the juvenile court, they can only be held at the facility until age 21. How long they actually remain in secure care will be decided by the Youth Parole Authority.

A defense attorney for one of the boys said the crash was an accident and that his client thought they had hit a fire hydrant — not a police officer.

But prosecutors argued that the crash was “inevitable,” given the boys’ decisions to join a gang, steal vehicles and flee from officers.