Update #2 July 14th: Case continued until Sept. 15th; Rep. Carl Wimmer getting involved. See updated post HERE.
Update #3 March 19th, 2009: Phillips pleads no contest to one count of disorderly conduct. Details HERE.
On June 19th, 2008 the Provo Daily Herald reports that Scott Phillips, a member of the Payson, Utah City Council, has been charged with two counts of simple assault, a class B misdemeanor. The charges were filed on Monday June 16th against Phillips in Spanish Fork's 4th District Court. Phillips, 45, has served on the Payson City Council for two and a half years.
Story also picked up by the Deseret News and KSL Channel 5. Also discussed on Doug Wright's blog; Wright is a host on KSL Radio from 9 A.M. - 12 Noon Monday through Friday
On May 10th, Phillips said he caught two teenagers or young adults, believed to be 18 or 19 years old, putting up graffiti with a marker near 800 East and 100 North in Payson. They had already tagged a building and one was keeping lookout for the other while he tagged Phillips's truck. Phillips said he grabbed the alleged taggers by the back of the neck when he saw them marking his truck.
"I just grabbed them from the back of the neck and told them to quit and get out of here, clean it up," Phillips said. "It's pretty sad when you can't even defend your own property."
The alleged victims could not be reached for comment. Phillips said he did not know if they had been arrested or charged in the incident.
Phillips acknowledged laying his hands on the alleged taggers, but said he did not strike or hit them. "I touched them, but it wasn't assault," he said. "It probably wasn't the right thing as far as grabbing them by the back of the neck, but I don't feel like I assaulted them." Here is Utah's official definition of assault, as set forth in Title 76, Chapter 5 of the Utah Criminal Code:
- (1) Assault is:
--- (a) an attempt, with unlawful force or violence, to do bodily injury to another;
--- (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or
--- (c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.
- (2) Assault is a class B misdemeanor.
- (3) Assault is a class A misdemeanor if:
--- (a) the person causes substantial bodily injury to another; or
--- (b) the victim is pregnant and the person has knowledge of the pregnancy.
- (4) It is not a defense against assault, that the accused caused serious bodily injury to another.
It appears the prosecutor is using an extreme interpretation of para (1)(a) above, not taking the outcome into consideration. The prosecutor is presuming that Phillips intended to do bodily injury to the taggers, when the outcome shows that NO bodily injury occurred and that Phillips was using restraining force only in the defense of his property.
Payson Mayor Burtis Bills declined to comment, saying it would be inappropriate to comment while the case is still under investigation. The case is being handled by Salem police and the city attorney's office to avoid a conflict of interest. Phillips's arraignment is set for 10 A.M. July 3 at Spanish Fork's 4th District Court.
In 2005, Scott Phillips was elected to a four-year term on the Payson City Council. But judging from the 230 public comments posted to the KSL story, if Phillips was up for election today, he'd be overwhelmingly re-elected. The public overwhelmingly supports Phillips' actions, based upon the account he rendered. Again, another example of a local government disconnected from the people and disregarding the popular mandate. I recommend that, if Phillips' finances permit, he NOT accept a plea deal, but demand a jury trial and turn this into a cause celebre. This is the only way we can stop rogue prosecutors who insist upon prosecuting the victim, like Mike Nifong did in North Carolina.
But Utah does NOT leave a citizen defenseless, like Washington D.C. does. Although Utah's criminal code apparently does not allow someone to use restraining force to stop the commission of a crime, Utah does allow someone to use lethal force to stop a home invasion.