Bill Description: Senate Bill 1004 would establish some immunity for those who act in self-defense, while letting law enforcement retain some of its privileges.

Rating: +2

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

Under current law, individuals who lawfully use force in a self-defense situation may be arrested, charged, and detained for months or years before ever having an opportunity to clear their name and regain their freedom. Such circumstances are a gross violation of the constitutionally recognized right to "a speedy and public trial" and other due process protections found in the 5th, 6th, 8th and 14th Amendments, which are part of the broader presumption-of-innocence principle. 

Senate Bill 1004 would create Section 19-202B, Idaho Code, to take some steps toward rectifying these systemic problems. The first thing the bill does is to state that "a person who uses or threatens to use force as justified in section 18-4009, Idaho Code, or as otherwise permitted in sections 19-201 through 19-205, Idaho Code, is immune from any criminal prosecution for the use of such force or threat of force except when the person knew or reasonably should have known that the person against whom the force or threat of force was used was a law enforcement officer acting in the capacity of his official duties."

Setting aside for a moment the inherent problem of creating broad exceptions for government violence, this provision doesn't do much on its own, but it sets a foundation for what is to follow. The second provision allows a "law enforcement officer" (broadly defined) to "use standard procedures for investigating the use or threat of force." But it also says that "the officer may not arrest the person using or threatening force unless the officer determines that there is probable cause that the force that was used or threatened was unlawful."

This provision seems intended to prevent the current practice of taking someone into custody merely for using force, and determining why later. Even with that good intention, the "probable cause" standard is incredibly weak, and law enforcement officers  would continue to enjoy "qualified immunity" for arrests, even when the supposed probable cause was non-existent. 

The third provision of the bill is more substantive. It says, "When a person charged with a crime is found not guilty by reason of self-defense, the county where the person was charged with the crime shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his defense."

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Unfortunately, the value of the previous provision is somewhat reduced by the following restrictions: "This reimbursement is not an independent cause of action. To award these reasonable costs, the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award." Giving such broad discretion to the judge weakens the protections provided to the wrongfully accused.

Perhaps the most import change made by Senate Bill 1004 is found in subsections (7) and (8), which state, "The court shall hold a pretrial immunity hearing within fourteen (14) days after a defendant has filed a motion to dismiss on the basis of self-defense immunity as provided in subsection (1) of this section. In a criminal prosecution or civil action where the issue of self-defense is at issue, once a prima facie claim of self-defense immunity has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity provided in subsection (1) of this section."

The principle here is important, but the details could still be improved. If a person is arrested for the use of force in lawful self-defense, they must first file a motion to dismiss on the basis of self-defense immunity, then wait up to two weeks for a pretrial immunity hearing. This process will still potentially allow the government to lock up an innocent individual for more than two weeks before providing them an opportunity to make their case. 

Overall, this is a positive and necessary change to Idaho law, but shortening the period between when an individual asserts a claim of self-defense (which ideally would not require filing a formal motion) and the pretrial immunity hearing would improve this provision.

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