Utah bill would create criminal defense for drivers who hit, kill protesters during a riot

(Rick Egan | Tribune file photo) Protesters shout "hands up don't shoot" as they march down the street in Salt Lake City, during a Justice for Bernardo rally on Thursday, June 25, 2020.

A driver who accidentally runs over and kills or injures a protester during a riot might not face criminal charges if the motorist was fleeing in fear for his or her life at the time, under the provisions of a state bill advanced Tuesday by Utah lawmakers.

The legislation — brought forward by state Rep. Jon Hawkins after a summer of national protests against police violence and systemic racism — would also make it a third-degree felony to obstruct traffic during a riot. Protesters found guilty of the offense could face up to five years in prison.

Proponents of the measure raised the specter of angry mobs blocking drivers on their way to the hospital for medical emergencies and argued that the legislation would hold protesters accountable for endangering the public.

“We respect the right of the people to peacefully assemble. That’s not what we’re trying to change here in this bill," Hawkins, R-Pleasant Grove, told the Law Enforcement and Criminal Justice Interim Committee. “When that peaceable assembly becomes a violent assembly, that’s what we’re trying to determine and to enhance the penalties on.”

But prosecutors, defense attorneys and civil liberties advocates are all opposing the measure, saying it could criminalize one of the defining features of American protest.

“Marching in the streets back, even before Selma, Alabama, included blocking traffic as part of the protest,” said William Carlson, chief criminal justice policy adviser for the Salt Lake County District Attorney’s Office.

While Utah law already prohibits obstructing a roadway or sidewalk, Hawkins' bill would elevate this behavior to a felony if it’s part of a riot. State statute considers a riot to be a gathering of people who are engaging in “tumultuous or violent conduct” that can cause public alarm, and defense attorney Mark Moffat told lawmakers that a broad interpretation of this definition could encompass almost any demonstration.

“They often involve hundreds, sometimes thousands, of individuals who are marching down the street in protest of a particular event that occurred in our community or nationally,” he said. “Every single one of those people could be charged with a felony.”

Utah has made significant strides in recent years to reform the criminal justice system and reduce the number of people charged with felonies, Moffat said. The proposal brought by Hawkins would work against that progress, he argued.

Carlson also said the suggestion about creating a criminal defense for drivers called to mind the deadly car attack during the 2017 anti-racist rally in Charlottesville, Va. Prosecuting the driver who plowed his car into the crowd of protesters would’ve been much more complicated with the provisions that Hawkins wants to enact, Carlson argued.

In order to qualify for the legal defense proposed by Hawkins, a driver must be fleeing from a riot and “under a reasonable belief” that he or she is in danger of serious injury or death. The motorist must also be taking “due care” at the time, according to the proposal.

Weber County Sheriff Ryan Arbon spoke in support of the bill while referring to conversations he’s had with police in Portland, Ore., the site of months of unrest and clashes between law enforcement and protesters after the death of George Floyd. An Oregon police official reportedly told Arbon that at one point, a daughter was trying to rush her father to the hospital and was “blocked and stopped” by a crowd.

“It’s those situations that were very troubling for Portland to deal with,” Arbon said. “The current crime, if you will, of blocking the traffic was so minor, [there] was just very little or nothing they could do about it.”

A committee majority voted in support of the bill, which the Legislature will consider during its upcoming general session. It was one of several measures discussed Tuesday with ties to this summer’s protests over policing — as some lawmakers decried the actions of demonstrators and others focused on the systemic issues that motivated the marches.

Proposals for police reform

Following a finding that there are patterns of abuse in Salt Lake City’s police department canine program, Sen. Daniel Thatcher wants to require adequate training and annual certifications for dog handlers. The bill presented by Thatcher would also mandate that an agency adopt written policies for the “necessary and appropriate use of dogs” in law enforcement.

Evaluating the role of a handler is important in cases of excessive force, Thatcher argued, because police dogs are sometimes just following an officer’s orders.

That was the case earlier this year when a Salt Lake City police officer commanded his police dog to bite a Black man who was kneeling with his hands raised. The officer was charged with a felony after The Salt Lake Tribune published bodycam footage of the arrest.

“So what this does is this clearly separates that the handler is responsible for the handler’s actions,” Thatcher, R-West Valley City, said of his proposal. “And the dog is responsible for the dog’s actions.”

The state senator said he worked with law enforcement to craft the bill, which picked up the endorsement of the legislative committee Tuesday.

And Sen. Jani Iwamoto, D-Holladay, earned committee support for legislation aimed at making sure a police officer can’t dodge an internal investigation simply by moving to a different agency. Under her proposal, a department would have to notify Utah’s Peace Officer Standards and Training (POST) if one if its officers left the agency during an open internal investigation.

“I think with these strengthened checks and balances, it will shore up those situations where there’s a departure during an investigation,” said Scott Stephenson, POST director. “[So] a bad player can’t be passed on from department to department, and they stay ahead of discipline.”

Changing the laws on protest

Rep. Lee Perry, R-Perry, argued that police in recent months have often lacked the ability to detain protesters after arresting them for alleged criminal activity and many times had to release these individuals and watch them head right back into a demonstration. His proposed solution is to stipulate that officials must hold anyone arrested for felony rioting in custody until the person appears before a magistrate.

“So that they can’t just run right through, get right back out and get right back down to the riot,” Perry, a retired state trooper, told his colleagues.

But Moffat told state lawmakers that some people wait in jail for up to 72 working hours before they’re able to see a magistrate, meaning that Perry’s proposal could create serious job consequences for arrested protesters.

Marina Lowe, legislative and policy counsel for the American Civil Liberties Union of Utah, again pointed to the vagueness in the definition a riot and argued that this lack of clarity is particularly problematic as lawmakers think about enhancing penalties or keeping people in custody.

However, Cache County Sheriff Chad Jensen said the bill would enable police to focus on sidelining destructive protesters.

“So those who want to peacefully protest can still do so," said Jensen, who serves as president of the Utah Sheriffs' Association. “But we can get the troublemakers out of the situation and not incur more violence or property damage.”

After the discussion, the law enforcement and criminal justice committee voted in support of Perry’s bill.

Lawmakers also talked about relaxing a gang enhancement statute that prosecutors employed this year to file first-degree felony charges against several protesters — who as a result were facing up to life in prison for allegedly procuring red paint, spreading the paint over the Salt Lake County District Attorney’s Office or breaking the building’s windows.

A retired judge later took over the prosecutions and scaled back the charges against the protesters so they could no longer be sentenced to life in prison.

Legislation presented Tuesday by Monica Diaz, director of the Utah Sentencing Commission, would increase from two to three the number of people who would have to be involved in an activity in order for prosecutors to use the group enhancement.

Judges, not prosecutors, would be in control of when to use the enhancement under the bill, she explained. And offenses such as graffiti and criminal mischief couldn’t be upgraded past a third-degree felony, while most nonviolent crimes couldn’t be enhanced past a second-degree felony, according to Diaz.

Thatcher and Rep. Andrew Stoddard, D-Midvale, said the proposal doesn’t go far enough in taming the gang enhancement law, but both voted in favor of the bill as a step in the right direction. The Government Operations Interim Committee voted in support of the legislation, setting it up for consideration in the general session that starts January.