Review by GOUtah! (http://www.goutahorg.org), excerpted from GOUtah! Alert #312, 2/16/2009:
We at GOUtah! are not lawyers. We’re just regular people. We attempt to interpret and analyze existing laws and pending legislation to the best of our ability as interested laymen. However, our writings should not be taken as legal advice. Please consult with an appropriately credentialed attorney if you have questions regarding state or federal laws. Thanks.
This bill is a back-door gun-control bill, and GOUtah! opposes this bill.
Under federal law, citizens with any sort of felony conviction are permanently prohibited from buying, borrowing, possessing, shooting, or even holding a firearm or ammunition. In recent years there has been a trend among state legislatures to reclassify all sorts of misdemeanor offenses as felonies. It almost seems as if we’re headed toward a society in which you’ll soon be permanently stripped of your gun rights for jaywalking or spitting on the sidewalk. While GOUtah! doesn’t condone jaywalking or any other form of law-breaking, we believe that minor illegal acts (especially acts that don’t result in serious injury to anyone) should not automatically result in the permanent revocation of a constitutional right. Thus, we tend to strongly oppose legislation that bestows felony status on such acts.
- HB 13 would make it a felony to use “any means of force to attempt to impede the normal breathing of another person, or to attempt to impede the circulation of another person's blood by applying pressure on the throat or neck of that person”, even when no bodily injury results, provided that the act meets any one of the several definitions of simple assault (a misdemeanor) given in section 76-5-102 of the Utah Code. One such definition of simple assault, for example, is “an act, committed with unlawful force or violence, that creates a substantial risk of bodily injury to another.” Note that no actual physical injury has to be incurred in order for simple assault to have taken place. String these definitions together, and it becomes clear that a variety of minor acts that don’t result in harm or injury could suddenly become felonies if HB 13 passes.
- It’s important to note that, under existing law, if you assault someone and you inflict serious bodily injury on that person, your act is classified as aggravated assault, which is a felony. But HB 13 would modify the existing law so that no physical injury whatsoever would be necessary in order to charge someone with felony aggravated assault if the assault involved any attempt, however brief and harmless, to impede either breathing or blood flow.
- An example: A run-of-the-mill fistfight involves “unlawful force or violence” and “creates a substantial risk of bodily injury to another”. If Bubba and Billy Bob get into a bar fight on Saturday night, and if no serious bodily injury occurs, they could be charged with a misdemeanor under existing laws. If HB 13 were to pass, things would be different. Suppose that, during the course of the fight, Bubba momentarily gets his hands around Billy Bob’s neck or momentarily uses his arm to get a chokehold on Billy Bob. Even if Billy Bob doesn’t suffer any physical injury in the process, Bubba has now committed a felony under HB 13. Or if Bubba pins Billy Bob to the floor and puts a knee on his chest, it could be a felony under HB 13.
- Another example: If you’re playing water polo (a pretty aggressive sport) and you have a scuffle with a player from the other team and you briefly dunk him, under the terms of HB 13 you could conceivably be charged with a felony (not to mention that the referee would call a foul).
- One of the problems with making such minor acts into felonies is that a policeman loses his power of discretion. In the case of a misdemeanor or infraction, a policeman may use his own judgment as to whether to make an arrest or issue a citation. In the case of a felony, a policeman is required by law to make an arrest.
- HB 13 is a well-intentioned bill, and it’s aimed at wife-beaters and other men who commit domestic violence. There have been cases in which a man gets a chokehold on his wife or live-in girlfriend or tries to briefly smother her with a pillow in order to psychologically terrorize her without actually causing injury. While we have no sympathy for such men, the problem with HB 13 is that it could extend far beyond such domestic-violence scenarios. A zealous prosecutor could use HB 13 to bring felony charges in all sorts of situations, as illustrated above.
- Again, we’re not lawyers. We’re just looking at this bill with a very skeptical layman’s eye.
- Existing laws provide ample prosecutorial tools to go after men who use a chokehold on their wives or girlfriends. As mentioned above, any type of assault, including chokeholds or smothering, that results in serious bodily injury is already a felony under Utah law. If the assault does not result in serious bodily injury, or even if it results in no injury, it can be prosecuted as a domestic-violence misdemeanor and can result in jail time. Furthermore, under the federal Lautenberg Law that has been in effect since 1996, if you are convicted of or plead guilty to a domestic violence misdemeanor (such as getting a chokehold on your spouse without causing injury), you’re automatically and permanently prohibited from possessing a firearm or ammunition in all 50 states. And, under the U.S. Justice Department’s “Operation Safe Neighborhoods”, which has been in force for about six years now, if a local cop catches you in possession of a firearm (even if you merely keep the shotgun that your grandpa bequeathed to you, or if you’re target-shooting using your friend’s rifle or if you’re duck-hunting with a borrowed gun) he will turn you over to the U.S. Attorney’s office and you’ll almost certainly be charged with a major federal felony. The same will happen if you merely attempt to purchase a gun. Hundreds of Utahns have, in fact, been sent to federal prison in recent years for the crime of owning or borrowing or attempting to purchase a firearm while having a domestic-violence misdemeanor on their record.
- GOUtah! disapproves of the federal Lautenberg Law and we believe it should be repealed. We also disapprove of “Operation Safe Neighborhoods”, which, though aimed originally at gang members, has turned into a “zero tolerance” policy and is now frequently used to send ordinary people to federal prison because they got caught with a firearm in, say, 2004 and the police found that they had slapped their spouse in 1965. We’re pointing out these laws and programs not to endorse them, but to illustrate that existing policies already enable courts to impose heavy penalties on people who physically abuse their spouses, including those who use chokeholds.
- GOUtah! does not want to see run-of-the-mill bar fights, roughhousing in a swimming pool, etc., get turned into felonies that would permanently strip a person of his gun rights. HB 13 would have that effect.