Rules Committee recommends Senate Bill 1053 despite staff warning about due-process presumption

The Rules Committee recommended Senate Bill 1053 is constitutional and in proper form by a 4-3 vote, after committee staff warned the bill appears to create a rebuttable presumption that may relieve the state of proving an element of the offense beyond a reasonable doubt.

Senate Bill 1053 addresses the discharge of firearms or archery equipment near an occupied structure. The bill defines it as unlawful to discharge a firearm or archery equipment while taking wildlife within either a quarter of a mile (for firearms) or an eighth of a mile (for archery equipment) of an occupied structure without permission from the owner or resident. The bill also states there is a presumption that discharge within those distances is without consent; a defendant may rebut that presumption by presenting evidence that an occupant or owner granted written, verbal, or posted consent.

Jennifer, a staff member who reviewed the bill, told the committee: "Our concern here is one of due process under the Fourteenth Amendment, which requires that the state carries the burden of proving every element of an offense beyond a reasonable doubt." She said the bill's language "creates a presumption that the discharge of a firearm or archery equipment within the applicable limits is without consent" and that, as written, "it is our reading of this bill as written that the presumption created therein is a mandatory rebuttable presumption that relieves the state of the burden of proving [an element of the offense] unless the defendant presents specific evidence to the contrary."

Representative Mathis asked whether the bill could be amended to address that concern. Jennifer said an amendment removing the presumption would leave the remaining changes intact, or the provision could be restructured as an affirmative defense, but she had not discussed possible fixes with the bill sponsor.

When Vice Chair Carter asked whether Arizona courts treat rebuttable presumptions differently than irrebuttable ones, Jennifer replied that courts recognize a spectrum of presumptions and that the U.S. Supreme Court has held that the mere fact a presumption is rebuttable does not automatically cure a constitutional defect. She cautioned that "where a state is relieved of the burden of proving any element of an offense beyond a reasonable doubt, then there is a constitutional issue," and said that is the committee staff's reading of the presumption in this bill because it begins from the presumption "that consent was not given."

The committee then voted to recommend Senate Bill 1053 is constitutional and in proper form. The roll call recorded Representative Carbone voting Aye; Representative Contreras, Nay; Representative De Los Santos, Nay; Representative Mathis, Nay; Speaker Montenegro, Aye; Vice Chair Carter, Aye; and Chairman Hendricks, Aye. Representative Willoughby was recorded as absent. The secretary announced the recommendation passed by a vote of 4 ayes, 3 nays and 1 absence.

Members did not adopt a specific textual amendment on the floor at that meeting; staff identified two possible routes (removing the presumption or recasting it as an affirmative defense) but said they had not discussed changes with the bill sponsor.