SALT LAKE CITY — A bill proposed by a Utah lawmaker would make it possible for motorists to be absolved of liability if they injure or kill someone rioting in a street narrowly passed a state interim committee Tuesday.
The bill, presented by Rep. Jon Hawkins, R-Pleasant Grove, received some support during a Law Enforcement and Criminal Justice Interim Committee session at the Utah Capitol; others said they were "uncomfortable" with it. While it passed the committee, the bill will still have to go through a future committee hearing before it's voted on by legislators.
The discussions come months after a May 30 riot in Salt Lake City following the death of George Floyd while he was in Minnesota police custody, as well as a few other protests in the state that led either to violence or major property damage.
Hawkins' bill, as it was presented Tuesday, would make obstruction of traffic during a riot a third-degree felony. In addition, it would absolve motorists from criminal responsibility if the motorist struck a person in the street during a riot if "the motor vehicle driver is under a reasonable belief that fleeing is necessary to protect the motor vehicle driver from serious injury or death; and the motor vehicle driver was exercising due care at the time of the death or injury."
The state statute defines a riot as two or more people simultaneously "knowingly or recklessly" engaging in "tumultuous or violent conduct that creates a substantial risk of causing public alarm," assemblies "with the purpose of engaging, soon thereafter, in tumultuous or violent conduct" or "committing an offense against a person or property of another who supposes to be guilty of a violation of law."
A riot is only a third-degree felony if someone suffers bodily injury, if there is "substantial" property damage, arson is committed, or if a person is armed with a dangerous weapon during a riot. Otherwise, it's a class B misdemeanor. The current law on riots does not mention roadways.
The proposed bill received mixed opinions. Weber County Sheriff Ryan Arbon, who testified in favor of the bill, said it would allow officers to remove people from the streets and make it easier for emergency vehicles to make it through protests. Hawkins said during an interview with KSL TV that it would allow police to make an arrest during a riot and send that person to jail to "cool down a little bit" while a riot subsides.
Will Carlson, chief criminal justice police adviser for the Salt Lake County District Attorney's Office, on the other hand, pleaded to the committee to not move the offense up to felony status because it could lead to the criminalization of a First Amendment right.
"There is, under the law right now, the opportunity to prosecute people when they simultaneously engage in tumultuous behavior with two or more individuals, which would include obstructing traffic," he said. "To add this offense to the list of felonies would be to place it alongside possessing a weapon or causing substantial property damage or injury.
"And obstructing traffic as a part of the protest is a part of America's tradition of protest," he added. "Marching in the streets back — even before Selma, Alabama — included blocking traffic as a part of the protest. That would criminalize that activity as long as a prosecutor can show beyond reasonable doubt that the person was engaged in tumultuous activity."
Salt Lake City attorney and criminal justice expert Mark Moffat and Utah ACLU attorney Marina Lowe echoed Carlson's concerns. They said the term "tumultuous" can be a subjective term and that can be interpreted differently.
Utah was the site of many protests this year, especially after Floyd's death in May. Even though many resulted in protests in Utah streets, most would not be considered riots — but it could be up to interpretation. On top of that, Moffat argued that if a riot comes out of a peaceful protest, not everyone who was protesting peacefully should be considered a rioter based on the actions of "a few small people."
"The language that is inherently vague on the riot statute coupled with the enhanced penalty — adding in a felony — really makes for a problematic piece of legislation and invites for selective enforcement moving forward," Lowe cautioned.
Moffat asserted the bill as proposed could result in hundreds of people in jeopardy of possible felony convictions just because they were in the streets while a fraction of protesters rioted. He said it would reverse a trend by the state to reduce offenses that result in Utahns dealing with the "burdens of being convicted of felonies."
Hawkins insists that the intention of the bill isn't meant to dissuade peaceful protests but to protect people if and when protests erupt into a riot. After the hearing, he said the severity of the penalty in the proposed bill is still under review. It could be amended to be a class A misdemeanor, following feedback from Tuesday's committee session.
"We don't want to take away anyone's rights to peacefully assemble," he said. "When those assemblies become violent in nature, we want to make sure that we're protecting the public."
The bill posed another concern for prosecutors. Carlson referenced the murder of Heather Heyer during a 2017 Charlottesville, Virginia, protest as a possible issue with the vehicular aspect of the bill.
The driver of the vehicle that struck and killed her had originally stated he was trying to avoid being injured. It was ultimately discovered it was an intentional act and the driver was ultimately convicted of first-degree murder and sentenced to life in prison.
"This is going to complicate prosecutions similar to what occurred in Charlottesville," Carlson argued. "So in addition to creating felonious activity, we create an affirmative (defense) that other individuals who disagree — or may disagree with the protest — and complicate those prosecutions."
Prior to a vote on the bill, Sen. Daniel Thatcher, R-West Valley City, said he was "uncomfortable" regarding the felony aspect of the bill; however, he said he was supportive of giving an affirmative defense for motorists who may end up in the middle of a riot in the roadway to "no fault of their own" and that they "had no control over."
Thatcher contended that voting the bill down could result in not moving that legislation forward. A pair of other legislators said they appreciated that aspect of the proposed bill but could not vote on the bill due to the felony aspect.
Following the lengthy argument Tuesday, senators and representatives both passed the bill with an 8-6-2 combined vote. Since it didn't pass unanimously, it will have another committee hearing before either the Utah House of Representatives or Senate will vote on it during the next legislative session. The session begins in January.
Hawkins said he plans to use feedback from Tuesday to make adjustments to the bill so it addresses what it intends to do, which he said is "making sure our public is safe from violence that happens in riots," without infringing on rights to protest.
"I'm hoping by then that we will have more of a consensus around what this bill does and how it can be effective in Utah," Hawkins said.
Contributing: Felicia Martinez, KSL TV