Legislature(2009 - 2010)HOUSE FINANCE 519
04/08/2010 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB424 | |
| HB381 || HB408 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 381 | TELECONFERENCED | |
| + | HB 408 | TELECONFERENCED | |
| *+ | HB 424 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE BILL NO. 381
"An Act relating to self defense."
HOUSE BILL NO. 408
"An Act relating to misconduct involving weapons."
9:10:41 AM
REPRESENTATIVE JAY RAMRAS, SPONSOR, called the legislation
[HB 408] a restoration of rights and explained that it
would create an alignment between federal and state
statute. The measure related to felons convicted of non-
violent crimes as long as 40 years ago who have not been
able to possess a gun. He referred to testimony in the
House Judiciary Committee.
Representative Ramras reminded the committee of previous
legislation related to minors consuming alcohol; those
affected were not able to join the military until they were
21 years of age because of probationary status set by the
state of Alaska, and an alignment between state and federal
law was necessary. He believed there was a similar lack of
alignment between state and federal law related to gun
rights.
Representative Ramras continued that Alaska is assertive in
restoring rights but maintains a few prohibitions,
including AS 11.61.200(g) and (b) prohibiting a person from
carrying a concealed firearm. The federal law says that all
rights must be restored; although people have regained
rights in Alaska, without the alignment, the rights cannot
be applied.
Co-Chair Stoltze thought the titles brought up concerns.
9:14:15 AM
Representative Ramras explained that under Alaska law, a
person convicted of a felony is not prohibited from
possessing a rifle or shotgun. However, the person is
prohibited from possessing a firearm capable of being
concealed and prohibited from possessing a firearm that is
actually concealed. In other words, an Alaskan cannot have
a handgun and cannot conceal it. Alaska law currently
provides an affirmative defense for an ex-felon for either
of the crimes of a felon in possession of a concealable
firearm or a felon in possession of a concealed firearm. A
person meeting one of three conditions can use the
affirmative defense to prove their innocence in court. The
conditions are:
· The person has received a pardon.
· The conviction has been set aside.
· A period of ten years has passed since the person was
charged with the crime.
Representative Ramras noted that the state makes a
distinction between violent and non-violent crimes. Under
federal law, a person convicted by a crime punishable by a
term of imprisonment for more than one year may not possess
a firearm. However, federal law also provides that any
conviction that has been expunged, set aside, or for which
a person has been pardoned or had their civil rights
restored shall not be considered a conviction unless it has
been expressly provided that the person shall not possess
firearms.
Representative Ramras pointed out that the state and the
federal government track similarly, but unless a perfect
alignment is created, the rights of Alaskans will not be
restored. He referred to an interpretation resulting from
the 1998 U.S. Supreme Court case (Caron v. United States)
which mentions an "all or nothing" test. He asserted that
the standard was the root of the legislation and should be
the objective. Current Alaska law contains two limitations
on persons who have had their rights to possess firearms
otherwise restored: the possession of a concealed firearm
on their dwelling property or when engaged in outdoor
activity; and the affirmative defense for a person charged
with possessing a concealable firearm or carrying a
concealed firearm if they have been pardoned, received a
suspended sentence, or if ten years has elapsed since an
unconditional discharge.
Representative Ramras argued that unless the Alaska
legislature amends existing law to modify the two
limitations, the existing policy allowing for restoration
of rights cannot be carried out. He underlined that without
amendment, Alaskans who had rights restored many years ago
cannot participate in the enjoyment of Second Amendment
rights. He noted that the measure would apply to a full
spectrum of Alaskan lifestyles, including Natives, non-
Natives, rural, and urban Alaskans.
9:17:53 AM
Representative Joule expressed support for the legislation
and described the experience of a person who was not able
to carry a weapon even to protect himself and others, even
though he was a search-and-rescue pilot. Representative
Ramras agreed that the prohibition was unnecessary in
Alaska.
Representative Gara asked whether the Department of Law
(DOL) would testify on the issue. Representative Ramras
responded that the committee would hear a policy call from
DOL. He reported that in the Judiciary Committee, DOL
addressed the question of switching the burden of proof
when someone from another state had rights restored. The
Judiciary Committee had decided the policy call should be
for the benefit of the kind of Alaskans that Representative
Joule depicted and not those brought up by DOL.
Representative Gara stated that he wanted to talk to DOL to
understand the legislation, not to ascertain its position
on the legislation.
Co-Chair Stoltze noted that there would be testimony [by
DOL] connected to another [related] bill [HB 381].
9:21:14 AM
REPRESENTATIVE MARK NEUMAN, SPONSOR, presented HB 381. The
legislation would expand the rights of Alaskans to stand
their ground in self-defense from just their home and
workplace while defending members of their household to any
place where they have a right to be. He explained that
current law permits the use of deadly force for self-
defense in a few specific instances (when threatened with a
crime, murder, rape, kidnapping, physical injury, or
robbery), but Alaska law states that a person is not
justified in using deadly force if provoking someone with
the intent of causing a threat.
Representative Neuman detailed that a person can be tried
for deadly force if they provoke an attack while engaged in
criminal behavior such as a gang-related shooting. There
must be justification in using deadly force; HB 381 would
not change those statutes. Current law requires that a
person must retreat when possible even if they are faced
with or involved in a serious crime. This means that even
when it is beyond dispute that a person was threatened with
the use of deadly force, a person can be brought to trial.
He relayed the experience of a minister who used deadly
force defending his church and ended up in prison.
Representative Neuman understood that the courts were
addressing the issue of the ability to retreat. He believed
the determination had to be made in a split second under
threat. He wanted clarification. He believed a person who
is threatened while somewhere they have a right to be has
the right to defend themselves and not be victimized a
second time in court. He maintained that he had worked with
the Judiciary Committee to make the bill better.
Co-Chair Stoltze informed the committee that HB 408 and HB
381 would be dealt with separately but public testimony
would be taken on both at the same time. He opened public
testimony.
9:24:51 AM
BRIAN JUDY, ALASKA STATE LIAISON, NATIONAL RIFLE
ASSOCIATION (NRA) (via teleconference), spoke in support of
both HB 408 and HB 381. Beginning with HB 408, he
emphasized that the bill was not about giving firearms to
felons, as the state already has the policy of restoring
firearm rights to former offenders. The right to possess
rifles and shotguns is restored immediately upon release
from incarceration. A person's right to possess handguns is
restored if they receive a pardon, if the conviction is set
aside, or after ten years of an unconditional discharge.
With the right to possess handguns comes the right to carry
handguns openly anywhere in the state. Third, the right to
carry concealed weapons is restored; however, the right is
limited to a person's home, property, or where they are
engaged in lawful activity such as hunting, fishing,
camping, and so on.
Mr. Judy informed the committee that currently 95 percent
of an individual's rights are restored by the state. He
noted that the only real restriction imposed on a person
whose rights were restored is that the person cannot cover
a handgun (such as with a coat) that they can otherwise
legally carry openly outside their home, property, or while
engaged in lawful activities anywhere. He added that the
right to vote, the right to hold office, and jury rights
are restored as well.
Mr. Judy explained that because of a complicated, technical
interaction between state law and federal law, persons who
have had all the listed rights restored by the state of
Alaska are still not recognized as having any rights for
the purpose of federal law because of the U.S. Supreme
Court decision in Caron v. United States and the "all or
nothing test" discussed by Representative Ramras that must
be applied. The court ruling stipulated that any state
weapon limitation activates the uniform federal ban on
possessing any firearms. Because Alaska does not go the
last step and allow people to carry concealed weapons any
place they can carry openly, the people have no rights. He
emphasized that HB 408 would take people from having 95
percent of their rights to 100 percent; from the
perspective of the federal government, they would be taken
from zero to 100 percent. He agreed that the bill would
achieve an alignment of state and federal law.
Mr. Judy reported that the NRA hoped that with HB 408,
legislators could get beyond the perceived stigma of
"giving firearms to felons" and realize the legitimacy of
allowing people who have long since paid their debt to
society to attain the restoration of rights already
provided by the state of Alaska but extinguished because of
the interaction between state and federal law and the U.S.
Supreme Court decision.
Mr. Judy spoke to HB 381. He noted that existing Alaska law
provides that there is no duty to retreat if a person is
facing criminal attack on premises that they own or lease,
or where they preside or work. The bill would extend the
rights to any place a person has a legal right to be. Under
HB 381, a person who is attacked while walking down the
street would have no duty to retreat; they could stand
their ground and fight, and meet force with force. The NRA
believed the measure made common sense. Under existing law,
a person faced with criminal attack outside their home,
property, or business must ask two questions: whether there
is justification to use deadly force in self-defense, and
whether they can with complete safety leave the area and
give ground to the attacker. The bill would take away the
second determination. He emphasized that there would be no
impact on justification; a person still must be justified
in employing self-defense. Under current law, a person who
resists an aggressor bears the risk of a finding in court
that although their response was proportional to the
reasonably-perceived threat, they overestimated the
difficulty of getting away and therefore were not justified
in reacting with defense of force. Removing the retreat
provision shifts some of the risk calculation back to the
aggressor. The NRA believes that victims should have the
protection of law, not criminals; law-abiding citizens
should not fear criminal prosecution and be victimized a
second time by the criminal justice system.
Mr. Judy noted that in past hearings, the opposition has
suggested that the law would increase violence in Alaska
and could encourage the needless taking of human life. He
pointed out that the same law had been enacted in at least
sixteen other states without increasing violence.
Mr. Judy maintained that the "sanctity of life" argument
used by opposition went both ways. He believed sanctity of
life issues were less compelling when the person whose life
was taken was behaving in such a way that the person who
took their life "reasonably" feared being raped or killed,
which is required under the justification statute. He
asserted that rapists are not deterred by rape laws, but
the hesitation of a law-abiding victim to apply defense of
force while considering retreat capability may mean the
difference between life and death.
9:33:41 AM
Representative Gara did not want to debate issues that he
did not think were debatable. Currently, the law stipulates
that a person in the middle of a rape or robbery has a duty
to self-defense and can shoot the assailant. He asserted
that the legislation would not change that. A person only
has to retreat when it is 100 percent clear that the person
can retreat with complete personal safety. He believed the
facts were muddled. He suggested that there were other
circumstances in which the bill could be useful and needed.
He queried the existence of cases in which someone was
convicted for defending themselves in the middle of a rape.
Mr. Judy distinguished between the beginning and the middle
of a rape. He understood Representative Gara's point: under
existing law a person who can retreat with complete safety
is required to do so. He felt that the victim would have to
make another decision in the life-or-death, split-second
circumstance: whether they could retreat with complete
safety before the rape happened. He asserted that the
legislation would not modify the justification; however, a
person could be found to have been justified, but could
also be found to have overestimated the ability to retreat
and could be charged with a crime.
Representative Gara stated that he was not aware of any
circumstance in which a person in a rape situation was
charged with inappropriately defending themselves under
existing law. He reiterated concerns.
9:37:30 AM
RICHARD PATTERSON, BUSH PILOT, KOTZEBUE AND BARROW (via
teleconference), spoke in support of HB 408. He provided an
overview of his experience in Alaska as a pilot. He
informed the committee of past mistakes he had made; he had
gotten help, corrected his ways, and become a helpful
citizen. He asserted that executive clemency (which he
received) is vested solely in the executive branch and is
assured by the separation of powers doctrine (Handbook of
Alaska State Government, page 4). The clemency power of the
governor is guaranteed by the Alaska Constitution, Article
III, subpart 21, which all legislators have sworn to
protect and defend.
Mr. Patterson stressed that the governor has absolute and
unfettered authority to pardon under the law. The clemency
process is long and arduous and rarely granted; it has only
been granted twice since 1995. Extraordinary circumstances
and exemplary rehabilitation must be proved.
Mr. Patterson described the pardon he had been given, which
specifically restored his right to possess and use
handguns. He read from Alaska's Clemency Handbook:
A pardon is a form of executive clemency, which if
full and unconditional relieves an offender from
further punishment and disabilities imposed by reason
of a criminal offense. It is an act of grace which
represents forgiveness for a particular crime.
Mr. Patterson noted that both state and federal law rule
that words are to be interpreted according to ordinary
meaning and both recognize the pardon's valid and
restorative power regarding firearms. He argued that even a
person wrongfully convicted and pardoned could not possess
firearms currently under AS 11.61.200. He did not believe
distant officials could understand what it was like to be
stalked by grizzly or polar bears, or to, unarmed, clear
the area around his home of dangerous animals so that his
children could safely get to school. He thought case law
had been misinterpreted and applied incorrectly.
Mr. Patterson maintained that he still endured the worst
punishment of all, in spite of the pardon: the right to
defend his life and the lives of those around him. He noted
that other states have similar statutes that restore
firearm rights to fully-pardoned state ex-offenders. In
addition, presidential pardons restore firearm rights to
federal ex-offenders. He stressed that the ramifications
are great, even if the numbers of people affected might be
small.
Mr. Patterson described the risks of serving others in the
Arctic while not being adequately prepared.
9:42:37 AM
Representative Joule acknowledged Mr. Patterson's effort.
ERIC STANLEY, KENAI (via teleconference), spoke in support
of HB 408. He agreed with the previous testifier. He
described experience of not being able to defend or protect
his family while engaging in subsistence activities. He
acknowledged past mistakes and believed he had paid his
debt to society. He thought people saw felons as violent
people, comparable to pit bulls, but asserted that he was
not a violent person. He believed people who had made
mistakes in the past and were convicted of a felony have a
label that burdens them.
9:45:41 AM
WAYNE A. ROSS, ATTORNEY, ANCHORAGE (via teleconference),
spoke in support of both HB 408 and HB 381. He believed HB
408 would affect subsistence hunters who have paid their
debt to society but cannot own a gun, even though the
legislature has said they can under state law. He pointed
out that the legislation would affect people who have had
pardons but still cannot bear arms. He called the measure
the "Stand Up for Alaskans" bill.
TRAVIS MAXIM, CO-OWNER, SECURETRANS ARMORED, INC.,
ANCHORAGE (via teleconference), testified in support of HB
408. He relayed experience with an employee who was not
allowed to bear arms because of a past charge for a non-
violent theft. He thought there was a lot of confusion
about the current law, evidenced by how the state had
handled the employee's licensing requirement. The state had
said the employee was allowed to carry a firearm while
working as an armed guard. The state then said he could
work, but would not be issued a license, based on his
criminal record. Two years went by at that status, and then
he was told he could not carry a handgun. His job duty was
changed to inside the building, where he would not need a
handgun, while anticipating his ability to carry a gun at
the ten-year mark, as the state had promised. However, the
employee had just completed the ten-year period, but the
state changed direction and determined that he would never
be allowed to carry a firearm. He hoped HB 408 would
rectify the situation.
9:50:50 AM
BILL SATTERBERG, FAIRBANKS (via teleconference), testified
in support of HB 408. He thought the measure was important.
He thought there was a problem in Alaska related to people
who have made mistakes in their youth for which they
received a suspended imposition of sentence (SIS). He
emphasized that the crimes discussed were not those against
people but against property. The people had been told by
the courts, by counsel, and by Probation and Parole up
until last April that they would have their weapons rights
restored upon completion of an SIS, upon completion of the
ten-year period, or upon receiving a pardon. He thought the
problem was that state law says that a person can be
charged with misconduct involving a weapon, but showing the
SIS, ten-year passage, or pardon is an affirmative defense.
The defendant has to come forward and prove affirmatively;
the standard of proof is lower, but still must be raised by
the defendant and overcome by the state. On the other hand,
the federal law does not recognize the affirmative defense.
Therefore the problem is that the federal government says
that unless there is a complete parallel between the state
and federal systems, the state law cannot recognize any
type of exception. The exception is an affirmative defense
under state law but not recognized under the federal
system. As a result, there have been numerous people in
Alaska who have been unable to get weapons rights restored
because the interpretation even by the state attorney
general is that federal law precludes the ownership of
weapons and does not recognize the affirmative defense.
Mr. Satterberg believed that the current revision was a
good and necessary one. He stated concerns that it might
not make it through the legislative process. He thought
people who had made previous mistakes but have
rehabilitated should have rights. He urged passage to make
the people law-abiding citizens. He asserted that the
effect in rural areas was serious.
9:55:07 AM
Representative Gara encouraged him to keep advocating for
the bill.
Co-Chair Stoltze referred to similar legislation in the
Senate.
Mr. Satterberg questioned those in DOL who believe that
there would be problems prosecuting the cases. He thought
that the government had the burden of proving guilt beyond
a reasonable doubt.
C. E. TANNER, ANCHORAGE (via teleconference), spoke in
support of HB 408 and HB 381. He relayed his experience as
a 40-year resident of Alaska. He noted an earlier
conviction for a crime; upon release he applied for and
received a federal firearms relief from disability, which
restored all of his rights to firearms. After ten years,
the concealed-weapon legislation came along. He applied and
received a concealed-carry permit, with subsequent renewals
over the years until last year. The Department of Public
Safety denied renewal of the permit based on the confusion
in AS 11.61.200. He felt that he was being discriminated
against and should receive the renewal.
MIKE MILLIGAN, KODIAK (via teleconference), testified
against HB 381. He relayed experience using guns for self-
protection from bears. He referred to the Second Amendment,
which begins with a well-regulated militia. He opined that
guns were too often used to solve problems.
Mr. Milligan explained that he personally had been
threatened with deadly force. He thought more systemic
questions needed to be asked. He believed taking a human
life was very serious. He reviewed history in the West and
spoke of a town that thrived after passing a no-gun
ordinance. He did not think all guns were bad; they have a
place in the defense of property, but he cautioned against
using guns to solve all problems.
10:01:24 AM
ROD ARNO, EXECUTIVE DIRECTOR, ALASKA OUTDOOR COUNCIL,
PALMER, testified in support of both HB 381 and HB 408. He
detailed that the Alaska Outdoor Council represents over
10,000 Alaskans and is a state affiliate with the NRA. He
related that the organization supports anything that will
allow members to carry a concealed weapon or firearm for
personal protection. He thought food security might become
an issue.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW (via
teleconference), testified regarding HB 408. She stated
that the department was concerned that bringing Alaska law
into conformance with the requirements of the U.S. Supreme
Court would make it difficult to prosecute people charged
with carrying a concealed weapon as a felon. She assured
the committee that she understood the situation of law-
abiding citizens.
Representative Salmon asked when the ten-year waiting
period would start and what proof would be required to show
that the time period was over.
10:05:28 AM RECESSED
10:15:54 AM RECONVENED
Ms. Carpeneti replied that the statute stipulates ten years
from the date of defendant's unconditional discharge; ten
years would have to elapse from when the person finishes
probation or parole. She assumed a statement could be
obtained from a probation parole officer to establish the
fact.
Representative Salmon queried the proof required for a
person to restore their rights. Ms. Carpeneti responded
that a statement would be required showing that the period
of probation or parole ended on a certain date.
Representative Gara had technical questions related to HB
408. He pointed to Section 2, which appeared to repeal
three statutes; he thought at least one was something that
would not be a crime any more. He stated concerns. He asked
what would be repealed related to AS 11.61.200(a)(12) and
why. Ms. Carpeneti responded that HB 408 would repeal a
prohibition against a person knowingly possessing a firearm
that is concealed on their person after having been
convicted of a felony (or conduct that would be a felony
for an adjudicated delinquent). She added that it would
still be against the law under AS 11.61.200(a)(1) to
possess a firearm capable of being concealed.
10:19:53 AM
Representative Gara asked whether the rights of people
other than felons-in-possession could be hampered. Ms.
Carpeneti replied that DOL was concerned about the
provision. She stated that the department was neutral on
the bill but has concerns about the effect of the bill,
including the one that was being discussed.
Representative Gara asked which crime the state would not
able to prosecute if AS 11.61.200(a)(12) were repealed. Ms.
Carpeneti responded that the state would not be able to
prosecute a person carrying a concealed weapon after having
been convicted of a felony (or adjudicated delinquent)
under the particular provision, but could still prosecute
under AS 11.61.200(a)(1), which covers possessing a firearm
capable of being concealed.
Representative Gara questioned whether anything was being
lost. He clarified that a person could not be prosecuted
for carrying concealed, but could be prosecuted for
something capable of being concealed. Ms. Carpeneti agreed
that the person could be prosecuted under AS
11.61.200(a)(1). She added that HB 408 would provide that
AS 11.61.200(a)(1) would not apply to certain persons,
including those with an SIS, a pardon, or those for whom
ten years have elapsed since an unconditional release.
Representative Gara queried the next provision that he
believed would no longer apply, AS 11.61.200(f). He asked
whether the section was a crime provision that HB 408 would
eliminate. Ms. Carpeneti replied no; AS 11.61.200(f) would
provide that for purposes of AS 11.61.200(a)(12); it would
define what is meant by "concealed."
10:23:15 AM
Representative Gara asked whether the department had
concerns about repealing AS 11.61.200(f). Ms. Carpeneti
replied that the section describes what is concealed; she
stated that if AS 11.61.200(a)(12) was going to be
repealed, subsection (f) should be repealed as well, since
it applies to offenses under subsection (a)(12).
Representative Gara queried the third subsection that would
be repealed, AS 11.61.200(g). Ms. Carpeneti replied that AS
11.61.200(g) would have the same affirmative defense to
carrying concealed as described in AS 11.61.200(a)(12): if
a person has an SIS, a pardon, or if ten years has elapsed,
as well as having been in their own dwelling or engaged in
lawful hunting or another activity that necessarily
involves carrying a weapon for personal protection.
Repealing AS 11.61.200(a)(12) would allow a felon to carry
a concealed weapon even if they are not on their own
property or engaged in hunting, fishing, or trapping.
Representative Gara summarized that current law stipulated
that after ten years a person can have a firearm for
limited purposes, such as in their own dwelling or for
hunting; under HB 408, after ten years a person could carry
concealed. Ms. Carpeneti agreed.
Representative Gara did not know that currently a gun was
allowed for home and field use.
10:25:25 AM
JANE PIERSON, STAFF, REPRESENTATIVE JAY RAMRAS, explained
that a person did not have the right because of federal
law. Ms. Carpeneti agreed that federal law was the problem.
The department was concerned that changing a state law to
accommodate a federal law that does not make sense in
relation to Alaska law would make it difficult for the
prosecution to prove beyond a reasonable doubt for other
cases of a felon carrying concealed. The department
understood the situation of people like Mr. Patterson, but
had concerns.
Representative Gara asked for more information. Ms.
Carpeneti responded that the concern was that the
prosecution would have to disprove beyond a reasonable
doubt for current affirmative defenses (facts in the hands
of a person charged with a crime). She gave a hypothetical
example of a person pardoned in another state twenty years
prior; the department would have to go find the person who
was pardoned. Under current law, it is the duty of the
person charged to show proof of pardon or SIS. She
emphasized that the information is difficult to find.
Representative Doogan asked why the fiscal note was zero if
the issue would be a problem for the department. Ms.
Carpeneti did not know the answer and offered to get more
information.
Co-Chair Stoltze pointed out that the fiscal note said that
enactment of the bill was not anticipated to fiscally
impact DOL.
Representative Doogan thought there was a problem with her
assertion that the department would have more work. Ms.
Carpeneti agreed.
10:29:43 AM
Representative Salmon clarified the meaning of "SIS" as a
suspended imposition of sentence.
Representative Joule referenced Ms. Carpeneti's statement
that the bill was a worthy effort but she was not sure it
was the right approach. He asked what the right approach
would be. He queried her proposed solution to the concerns.
Ms. Carpeneti responded that the department had not come up
with a solution to the problem; it cannot change federal
law or federal decision-making. The issue was caused by the
U.S. Supreme Court ruling on the Caron case, which puts
people in a difficult situation. The department was not
sure the proposals in HB 480 would justify the concerns.
Ms. Pierson informed the committee that the bill had gone
through many drafts; the proposed version was the only way
the sponsor had found that could work under the law as
written.
Ms. Carpeneti interjected that DOL was not sure that HB 408
would satisfy federal law. She warned that HB 408 could
make the difference, but she did not think it was a sure
thing.
10:33:54 AM
JAMES HOTAI WILLIAMS, VALDEZ (via teleconference),
testified in support of HB 408. He thought good citizens
were being held back from legally carrying a gun. He urged
passage of the legislation.
Mr. Judy asserted that HB 408 was the only way to solve the
problem. He emphasized that federal law took people's
rights away. He thought the bill would restore rights to
people who had paid their debt to society.
Ms. Pierson believed that the policy call was the
restoration of rights for ex-felons who have proved they
can function appropriately in society.
Representative Gara clarified that HB 408 would not restore
rights to a person who had committed a personal crime with
a weapon. Ms. Pierson agreed that the measure would not
restore the rights of a person who committed a crime
against another person.
Representative Gara added that the crimes covered were the
subsection AS 11.41 crimes, including murder, rape, and
violent assault. Ms. Pierson agreed.
Co-Chair Stoltze closed public testimony.
10:38:50 AM
Co-Chair Hawker MOVED to report CSHB 408(JUD) out of
Committee with individual recommendations and the
accompanying fiscal notes.
CSHB 408(JUD) was REPORTED out of Committee with a "do
pass" recommendation and with attached previously published
fiscal notes: FN1 (LAW), FN2 (DPS).
Co-Chair Stoltze turned the committee's attention to HB
381.
Representative Neuman referred to an earlier question by
Representative Gara. He explained that the issue was the
ability to use deadly force before a crime happens. The
bill (page 1, lines 8 to 12) would expand current statute
to describe where a person has a right to be. A person
would have the right to defense using deadly force anywhere
they have a legal right to be, not just in their home. He
emphasized that the offense would still have to be
justifiable. He pointed out that there are other ways to
use deadly force besides using a gun.
Representative Gara referred to the case with the Mat-Su
minister. He recalled that the minister shot the robber in
the back as the robber ran away; he did not want to justify
that.
Representative Doogan also wanted the question answered.
Representative Neuman agreed that the person was shot in
the back, but added that the person running had a gun in
his pocket and could have shot back. The defendant had to
prove in court that the deadly-force defense was
justifiable; the court found that it was. He argued that a
person has the right to defense wherever they have a legal
right to be. He questioned allowing the rights of a
criminal to overrule the rights of an honest person.
Representative Gara asked whether HB 381 would have an
impact on a case like the one being discussed in which a
person shot a fleeing robber in the back. Representative
Neuman replied that the bill would not affect the case
because the court had to determine whether he was justified
in using deadly force. He maintained that the bill
addressed the duty to retreat.
10:45:17 AM
Representative Kelly opined that HB 381 would not change
the discussed case. He believed the bill would say a person
on their own property would not have to run. He spoke in
support of the legislation.
Representative Doogan wondered where a person would not
have a right to be.
Representative Gara pointed out that laws already in place
that do not allow shooting another person are aimed at
protecting the victim, but also preventing someone from
shooting another person for no good reason.
Co-Chair Stoltze suggested that the case being discussed
might not be the best example.
Representative Neuman acknowledged that the case was
complex. He addressed Representative Doogan's question
about where a person does not have a right to be. He gave
the example of a person being in a yard that was not
theirs.
Representative Kelly noted that people had not yet caught
up with the changes in the CS and asserted that the bill
had been changed substantially. He pointed out that HB 381
was only about not having a duty to run from a place where
a person has a legal right to be.
Ms. Carpeneti reported that the department was concerned
that HB 381 would increase violence in Alaska. Currently,
the duty to retreat is fairly limited; a person does not
necessarily have a duty to retreat, especially if they are
home, in a place of work, or a guest in another person's
home. In addition, self-defense is a defense under Alaska
law; the state is obliged to prove beyond a reasonable
doubt that a person knew they could retreat in complete
safety.
10:50:36 AM
Ms. Carpeneti emphasized that currently a person has no
duty to retreat if they are being attacked by a rapist, for
example, unless they can do so in complete safety. She
reiterated that DOL is concerned that the bill would help
eliminate the duty to retreat in Alaska, since a person has
a legal right to be anywhere, except where they are
trespassing on another person's property.
Co-Chair Stoltze reported that communication he had
received regarding the legislation was not about the desire
to use deadly force but about the long legal process a
person has to go through to justify the use of force. Ms.
Carpeneti responded that prosecutors would still have to
prove beyond a reasonable doubt that the victim knew they
could retreat in complete safety. She asserted that the
problem with changing a law across the board was that it
would also apply to criminals and complex situations such
as a gang shoot-out in a public parking lot where everyone
involved is where they have a right to be.
Representative Gara queried whether the only circumstances
addressed by the bill were cases related to self-defense
against death, serious physical injury, kidnapping, sexual
assault, sexual abuse of a minor, or robbery (listed in AS
11.81.335(a)). Ms. Carpeneti replied that the duty to
retreat applies to situations in which a person would
otherwise be justified to use deadly force, but they can
retreat in complete safety. A person first has to be
justified to use force at all in self-defense; a person can
use deadly force to defend self or others against the
listed circumstances when the duty to retreat applies.
Representative Gara summarized that the places where a
person could potentially be justified were the seven
situations listed; otherwise, the duty to retreat applies.
Ms. Carpeneti agreed.
Representative Gara asked whether currently a person has a
duty to retreat when it is clear they can do so safely.
10:55:36 AM
Ms. Carpeneti replied that it must be clear and the person
must know that they can retreat safely; if the person is
confused or does not realize that they can retreat, they do
not have to retreat before using deadly force.
Representative Gara offered both sides of the argument in
order to get further clarification: On the one hand, if it
is clear that a person can retreat safely, the law does not
want to provide the option of shooting someone. Ms.
Carpeneti agreed.
Representative Gara asked someone else to provide an
example of the other side of the argument.
Representative Neuman disagreed with Ms. Carpeneti's
statement that a person can always be justified in using
deadly force. He opined that during certain activities,
deadly force cannot be used, such as when participating in
a crime, felony, or criminal objective, or when fleeing or
in an attack with gang-related robberies; AS 11.81.33
stipulates that a person cannot use deadly force in cases
including participation in a felony transaction, acting
alone or with others in revenge or retaliation, and so on.
He emphasized that HB 381 is not about being in a gang-
related fight or participating in criminal activities.
Representative Neuman provided an example that raises the
question of whether a defendant would be second-guessed in
court. A person has to know that they could not retreat in
complete safety and has to make the decision in a split
second. He stressed that people are finding themselves in
court over the issue of trying to defend with deadly force.
Representative Doogan queried the perimeters of the
proposed legislation. He wondered whether there were
circumstances in which a person would not be subject to the
law because they were in a place where they did not have
the right to be. Ms. Carpeneti answered that a person does
not have a right to be on someone else's property. A person
who was trespassing would not be justified in using deadly
force against the property owner and then claiming that
they did not have to retreat.
Representative Doogan asked whether there were any other
circumstances in which the description would apply. Ms.
Carpeneti replied that the main one was being on someone
else's property; otherwise a person could be anywhere.
Representative Doogan provided a scenario: A person goes to
a courthouse where it is posted that a person cannot carry
a weapon, there is a shoot-out, and the person pulls out
their weapon and shoots someone else. He asked whether the
person in the scenario was in a place where they had a
right to be.
11:00:56 AM
Ms. Carpeneti opined that the person has a right to be in
the courtroom, but the question would be whether the person
has the right to have a gun there.
Representative Doogan asked whether a person in the
hypothetical case might be prosecuted for having a firearm
in a place they should not have had it, but not for
shooting someone with the firearm. Ms. Carpeneti responded
that it would depend on the circumstances, but she agreed
it was a possibility.
Co-Chair Stoltze asked how likely the possibility was. Ms.
Carpeneti answered that none of the situations that had
been described were very likely.
Ms. Carpeneti responded to Representative Neuman's
statement about criminal acts. She opined that the problem
in a gang-related incident was that past investigations
have shown that everyone claims that the other side shot
first, leaving both sides in a position to say that they
had a right to be there and did not shoot first and could
not be charged. She pointed out that it is not always clear
who is the criminal and who is not.
Co-Chair Stoltze recalled other predictions and grave
concerns related to past firearms legislation that had not
come to pass. He did not want to get mired in unlikely
scenarios.
Representative Gara expressed concern about giving someone
the ability to shoot someone they do not need to shoot,
while still maintaining the right to self-defense. He
described the opposite argument to the one he had proposed
earlier: AS 11.31.335(a) stipulates that a person can only
use deadly force if they can prove it was necessary for
self-defense in one of the seven types of circumstances
listed. He asked whether in advocating for the bill he
could say the state was not giving someone the right to
shoot someone else in the back because they have to prove
that the shooting was necessary for self-defense.
11:05:01 AM
Ms. Carpeneti replied that the person who did the shooting
would not have to prove anything, because in Alaska, self-
defense is a defense; the prosecution would have to
disprove self-defense beyond a reasonable doubt. In other
jurisdictions, the defense of self-defense is an
affirmative defense; a person charged with a crime has to
prove by a preponderance of evidence.
Representative Gara was not worried about the burden-of-
proof issue. He asked whether HB 381 would make it
allowable to shoot someone only if the shooting was
necessary for self-defense. Ms. Carpeneti answered that
under HB 381, a person would be authorized to use deadly
force when justified under the statutes that authorize the
use of force in self-defense, even though the person knew
they could retreat in complete safety. In the example of a
person coming into a committee room and showing a weapon,
she did not think the people sitting in the room could know
whether they could retreat in complete safety, so there
would not be a duty to retreat. On the other hand, if a
person is a couple blocks away from an incident and knows
they can retreat by turning around or going into a building
and call the police in complete safety to self and others,
the person should retreat and should call the police, even
though they could be justified in using deadly force.
Representative Gara thought the duty-to-retreat part could
be irrelevant; setting the burden-of-proof issue aside, the
state would have to show that the action was necessary for
self-defense, or the person would be convicted. Ms.
Carpeneti responded that the state would have to prove that
the use of force in defense of self and others was
reasonable; the person has to believe they had to use
force, and the belief has to be reasonable. At that point,
deadly force could be used to avoid the things described
before (death, serious physical injury, kidnapping, and so
on). Then, if the person can retreat in complete safety to
self and others and the person knows they can retreat, the
law requires retreat before using deadly force.
Representative Gara did not understand where the duty-to-
retreat issue would ever come into play under current law;
if the requirement is only using it when necessary for
self-defense, it would not matter whether there was a law
saying a person should retreat when it is safe.
11:09:16 AM
Ms. Carpeneti provided an example: In the middle of the
night, a person is asleep in bed. Someone outside runs out
of gas and does not have a cell phone and knocks on the
door of the sleeping person to use the telephone to call
for help. The person inside gets their handgun (since it is
the middle of the night) and goes to the door with the gun
in hand. The person on the other side of the door sees the
gun, and is afraid that the person with the gun intends
harm, and the fear is reasonable. The person outside would
then be justified in using deadly force rather than turning
around and running in the other direction. The person
outside is in a place where they have a right to be, has a
reasonable and personal fear of the person inside with the
gun, and would not have a duty to retreat. She thought the
example turned the tables on the example of the person
inside the house having the right to use deadly force.
Co-Chair Stoltze noted the importance of having cell phones
in cars.
11:11:52 AM
Co-Chair Stoltze closed public testimony. He asked Mr. Judy
to testify.
Representative Doogan questioned why Mr. Judy was not
testifying as a member of public. Co-Chair Stoltze
explained that he was being called as an expert witness.
Mr. Judy addressed the question of whether it would only be
allowable to shoot someone when necessary. He answered
"absolutely." He asserted that HB 381 had nothing to do
with justification; the basic principle still remains that
in self-defense, a person may only use deadly force upon
another when and to the extent that they reasonably believe
the use of deadly force is necessary for self-defense. He
added that the use of deadly force is limited for self-
defense in the listed circumstances (death, serious
physical injury, kidnapping, sexual assault, or robbery).
In addition, the no duty to retreat only relates to deadly
force; AS 11.81.335(a) is the justification. A person may
not use deadly force [unless] the person is in a place they
have a legal right to be. He stated that the perimeters of
"a legal right to be" are related to no trespassing; a
person committing a crime has no right to be in that place.
He did not think HB 381 would impact the issue. He stressed
that the bill was very narrow and simple.
11:15:16 AM
Representative Gara requested comment from DOL related to
the gang issue.
LT. RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT OF
PUBLIC SAFETY (via teleconference), commented that the
department was neutral on the bill.
Co-Chair Hawker spoke to the fiscal note. Based on what he
had heard in testimony, he had concerns about the immediate
employment of two full-time employees at the Department of
Law at a cost of $400,000. He felt that the fiscal note
should be indeterminate.
Representative Kelly thought the law itself would be a
deterrent to crime and argued that there would be less need
for law enforcement to get involved.
Representative Doogan stated that he was willing to accept
an indeterminate fiscal note but not a zero note.
Representative Gara did not think there was a good argument
about which way the fiscal note should go. He opined that
some people could read the law as having a right to shoot
people. He did not think criminals would read the law
before assaulting somebody and did not think it would deter
crime.
Representative Gara stated concerns about what DOL had said
about gang violence, which he viewed as a substantial and
growing problem. He maintained that the traditional gang
defense was "they shot first." He was less concerned about
someone shooting someone else in the back, which he did not
think people had a right to do in general; he wanted that
to be made clear if HB 381 passed. Regarding the gang
issue, he wondered whether an exception could be written
into the law so that a person involved in gang violence
could not claim that they had a right to be there. He
understood that it was hard to define "gang." He wanted to
exempt people who are part of a gang of a convenient excuse
to kill.
11:21:47 AM
Co-Chair Hawker thought the issue of gang violence had been
addressed in AS 11.81.330, the justification for the use of
non-deadly force, a prerequisite for a justification for
deadly force. He argued that the statute clearly stipulated
that a person is justified in using non-deadly force on
another unless the person is acting alone or with others
for revenge, retaliation, or response to actual or
perceived conduct by a rival, perceived rival, or member of
a perceived rival group. He did not care if gang members
shot each other, but he cared about innocent citizens. He
felt that AS 11.81.330(c) would specifically protect the
state from issues raised by Representative Gara.
Representative Kelly agreed.
Representative Neuman added that the bill would not change
justification laws, which are still in statute. He
emphasized that a person may not use deadly force if it is
not necessary. He pointed out that HB 381 would clarify
current statute related to where a person has a legal right
to be. He opined that criminals will be criminals and
honest people are not criminals.
Co-Chair Hawker requested the committee aide to redo the
fiscal note to make it an indeterminate fiscal note for
DOL.
Representative Gara commented that Co-Chair Hawker had
addressed his concerns about the gang issue. He wanted
DOL's opinion on the issue.
Co-Chair Stoltze thought the department could comment at
another time. He thought some of the issues would be dealt
with on the floor.
11:26:40 AM
Vice-Chair Thomas relayed personal experience and noted
that different people have different "breaking points" in
various kinds of confrontations. He had learned not to
retreat in confrontations. The military had also taught him
not to retreat. He pointed out that veterans are often in
confrontations and do not retreat. He referred to more
frequent shootings in Anchorage and his decision to
consider obtaining a concealed handgun for self-defense. He
agreed with Co-Chair Hawker about the gangs: let them shoot
each other. He supported passing the legislation out of
committee.
Representative Doogan stated that he could not support HB
381 because he felt the bill would simply remove the duty
to retreat and create more violence. Since people had a
right to be almost anywhere, a person in a confrontation
would no longer be required to retreat if they have the
opportunity to do so. He believed more confrontations,
violence, and more shootings would be inevitable. He felt
that basically everyone would have the opportunity to use
force; some would use it well and some would not.
11:32:16 AM
Representative Salmon stated that he supported the bill. He
reported that he had been trying to apply the measure to
rural areas. He thought there were unclear situations in
which someone was shooting and pointed out that there is
nowhere to retreat in rural areas because of the lack of
law enforcement. He noted that it could take two or three
days for a state trooper to arrive. He supported the bill
for rural areas. He understood that urban areas had
different issues.
Representative Gara argued that no law would stop gang
members from shooting one another. He pointed out that Ms.
Carpeneti's point was not that they would stop shooting
each other, but that the state would not be able to
prosecute gang members. He believed the question was
whether the state would be able to prosecute and send a
murderer to jail.
Representative Foster stated support for the legislation,
noting that he had gone back and forth on the issue. He
felt that victims or potential victims and not criminals
should be given the benefit of the doubt in situations in
which a person has to make a split-second decision.
11:35:44 AM
Co-Chair Hawker bill emphasized that the bill would not
change any of the issues regarding justification of the use
of deadly force.
Co-Chair Hawker MOVED to report CSHB 381(JUD) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 381(JUD) was REPORTED out of Committee with a "do
pass" recommendation and with attached new fiscal note by
the House Finance Committee for the Department of Law and
previously published fiscal note: FN1 (DPS).
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2 CS HB 381 Sponsor Statement HJUD.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| 3 HB 381 HJUD explanation of changes.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| 6 2009 Florida Statutes.pdf |
HFIN 4/8/2010 9:00:00 AM |
|
| 7 Utah Code.pdf |
HFIN 4/8/2010 9:00:00 AM |
|
| HB381 AS 11 81 335[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| HB381CS(JUD)-LAW-CRIM-03-30-10NEW.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| HB 408 NRA support letter[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| HB 408 Letter.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| 06 HB408 Caron v. US[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| 04 HB408 NRA Background information[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| HB 381 Support Letter.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| 07 HB408 Gabrielle v. DPS[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| 08 HB408 Support[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| HB408 AS11.61.20011_05_08[1].pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| HB408 Sponsor Statement 4.6.10.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 408 |
| HB 381 LAW LETTER.pdf |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |
| HB381CS(JUD)-LAW-CRIM-04-08-10.xls |
HFIN 4/8/2010 9:00:00 AM |
HB 381 |