By Howard Fischer
Capitol Media Services
PHOENIX -- Gov. Katie Hobbs vetoed a controversial measure Monday that would have expand the scope of the state's "defense of premises'' law.
"The legislation as written values property over human life and incentivizes vigilantism,'' the governor said.
"It's very broad,'' the governor said of HB 2843 crafted by Rep. Justin Heap, R-Mesa,. "And I think it sets a dangerous precedent.''
And she said it's "not going to address the immediate border crisis.''
Heap argued that nothing in his legislation actually altered other laws which define when someone can use deadly physical force. Instead, he said, is simply expands the area that could be considered someone's "premises'' from an immediate home and yard to what could be hundreds of acres of ranch the person also owns.
But Hobbs, in her veto message, said she isn't buying thast.
"This proposal would alter traditional laws on self-defense to allow the unnecessary use of deadly force and further embolden a culture of armed vigilantism and violence with impunity,'' she wrote. "This is yet another example of extremists in the Arizona Legislature,'' Hobbs said. "And this is not the right way to do it.''
Heap did not return repeated calls and messages seeking comment.
But Sen. John Kavanagh, R-Fountain Hills, a supporter of the legislation, said the governor is off base.
"This bill has nothing to do with the border,'' he said. And he said that opponents "have purposely misrepresented this law as saying that it would let you shoot to kill somebody trespassing on your property.''
He said foes have linked the change to the ongoing trial of Nogales rancher George Alan Kelly. He is facing charges of second degree murder in connection with the fatal shooting of a migrant on his property.
"That has nothing to do with this law,'' Kavanagh said. He said Kelly is arguing self defense, saying that someone in the group -- not the person he shot -- had a rifle and aimed it at him.
More to the point, Kavanagh said, is the rancher is not claiming some right that would have been available under Heap's expansion of the "Castle Doctrine,'' the existing law on justification .
"But the Left mistakenly believes that's the case,'' he said. "So they've linked it to illegal immigration which, for them, is a Pavlovian-opposed anything that the other side says.''
Kavanagh acknowledged that, in explaining his legislation, it was Heap -- and not opponents of the measure -- who mentioned both immigration and ranchers.
Heap told members of the House Judiciary Committee who talked about an "increasingly larger number of migrants or human traffickers moving across farm and ranch land.'' And he said it would fix a "loophole'' that now exists in the laws dealing with defense of premises.
"If a farmer owns 10,000 acres of farmland, his home may be a half a mile away from where he is,'' Heap told colleagues in February. "And if he sees someone on his land, can he approach them and trespass them from his property?''
Central to the debate is the existing law which says someone is justified in threatening the use of deadly physical force or threatening to do so "to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission by the other person in or upon the premises.''
The problem with that, Heap said, is that "premises'' is pretty much defined to an individual's home and immediate property.
He said HB 2843 simply extended that to other property owned or in someone's lawful possession.
Heap said that could someone who lives in town and has a ranch elsewhere.
Kavanagh said there is some basis for Heap talking about ranchers.
"It would help a rancher if anybody, legal or not, were criminally trespassing on their property,'' he said. "It would not give them the right to shoot that person.''
That, said Kavanagh, is controlled by other laws.
One says individuals are justified in using deadly physical force only "when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.''
That statute also has a "stand your ground'' provision which says there is no duty to retreat if the individual "is in a place where the person may legally be.''
A separate law allows deadly physical force to "protect a third person.''
What all that means, Kavanagh said, is that the law -- even with Heap's addition -- would still not allow the use of deadly force unless there is a threat to use such force in the first place.
Even a lobbyist for the Arizona Civil Liberties Union conceded during debate on the measure that, by itself, would not legalize the indiscriminate killing of those walking across someone's property.
"Someone who has used deadly physical force against someone who is trespassing would still need to demonstrate that a reasonable person would believe that deadly physical force had been necessary to protect themselves or others,'' testified Marilyn Rodriguez. "The physical force used cannot have been excessive.''
Kavanagh also took a swat at Hobbs for suggesting that the law would have led to "vigilante justice.''
"The law is quite clear that you can't use deadly force with this,'' he said. And if a problem had developed if Hobbs had signed the law, Kavanagh said he knows who he would blame.
"The opponents of this law, many of them, have purposely misrepresented this law as saying that it would let you shoot to kill somebody trespassing on your property,'' he said. And Kavangh said they've said it so often that there are people who believe that, even under the existing Castle Doctrine, that if someone is trespassing, "you could blow them away anyway,'' even if they're not threatening deadly force.
"So, that to the extent erroneous information is going to make people dead, it's people who oppose this law,'' he said.
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