Legislature(1995 - 1996)
02/21/1995 03:04 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HHES - 02/21/95 HB 28 - POSSESSION OF GUNS ON SCHOOL PROPERTY Number 1640 CO-CHAIR BUNDE said this bill addresses a problem which unfortunately has not gone away since the bill was last seen. There is an added complication and incentive to address the bill this year. This year, the state of Alaska is required to address this issue or the state stands to lose federal funding. In light of the previous briefing, the state cannot stand to threaten any more federal educational funding. CO-CHAIR BUNDE said that the Federal Gun-Free Schools Act was passed by Congress. It requires that certain conditions be met before the state receives federal education funds. The purpose of HB 28 is to put the state of Alaska into compliance with the federal mandate and to address a growing problem in Alaska. This problem is students who bring guns to school. CO-CHAIR BUNDE summarized the bill. He said the possession of a deadly weapon on school grounds, in the parking lots adjacent to schools or while participating in a school-sponsored event will be prohibited. However, a person can obtain permission from a chief administrative officer of a school to carry a prohibited weapon on school grounds to make allowances for school rifle teams and that sort of thing. The restrictions do not apply to sworn law enforcement officers of course. CO-CHAIR BUNDE said this bill requires a one-year expulsion or suspension of a student that possesses a weapon on school grounds and that is to bring the state into compliance with the federal mandate. In addition, the bill requires an annual report to the DOE regarding the number of students expelled and the types of weapons involved. Number 1728 CO-CHAIR BUNDE said that in researching this bill, it was found that schools are not always interested in providing accurate information about such incidents because it makes the school look bad. To Co-Chair Bunde, this is an attempt to sweep the problem under the rug in some cases. CO-CHAIR BUNDE continued that the legislation also allows school lockers to be searched to determine compliance with school regulations and state and federal laws. The policy on locker searches must be posted prominently throughout the school. These are random searches. The school is not allowed to target a particular student or group of students. The lockers are public property and the students are using them. In many schools the students share lockers so this is not necessarily a personal issue. Number 1800 CO-CHAIR BUNDE also said that he found out, through research, that lockers were the center of criminal activity in many Lower 48 schools. Lockers were where many dangerous and deadly weapons were kept, as well as contraband. It was also where law abiding students were being robbed. Some school districts have removed all lockers, resulting in considerable drops in theft and violence. Other schools require see-through back packs. Fortunately, Co- Chair Bunde did not think Alaska was at that level. But there are problems that must be addressed regarding guns in schools, and this bill will go a long way toward solving Alaska's problems. Number 1837 REPRESENTATIVE TOM BRICE asked if HB 28 was exactly the same bill which passed the HESS committee last year. CO-CHAIR BUNDE answered no, not exactly, because the requirements of the federal law were now addressed. CO-CHAIR TOOHEY asked for a motion to adopt the Committee Substitute (CS) for HB 28. REPRESENTATIVE GARY DAVIS so motioned. There were no objections and the CS was adopted. Number 1890 HELEN MEHRKENS, Health Education and Health Program Coordinator for the Department of Education, said that part of her duties is to coordinate the Safe and Gun-Free Schools Act which is a federal Act which comes to the DOE and to the schools in Alaska. Related to that is the Gun-Free Schools Act mentioned by Co-Chair Bunde. She has been working with districts for several months in an attempt to get the districts in compliance with that Act. MS. MEHRKENS continued that Co-Chair Bunde has already identified the major components of the federal bill. One is that if the state is going to continue to receive $90 million in elementary and secondary education act funds, which are the primary grant funds to school districts in this state, districts must come into compliance with the federal Act which requires school districts to expel students who bring weapons to schools. This uses the federal definition of a deadly weapon. Number 1930 MS. MEHRKENS said there is an opportunity for schools, on a case by case basis, to waive that expulsion after the case has been looked at using a hearing process. The DOE wants to state that it is in favor of compliance with the federal mandate and the DOE hopes HB 28 will be passed. This is not only because of the threat of federal funding, but also because many schools are already in compliance with the expulsion mandate, and the DOE finds that everyone is in favor of whatever it takes to make schools a safe place for students. MS. MEHRKENS offered to answer questions. The DOE has been in constant contact with Co-Chair Bunde's staff as well as the staff at the federal DOE for the most recent interpretations. The federal DOE staff has a list of Alaska DOE's questions that they will be answering soon. Number 1976 REPRESENTATIVE DAVIS remembered that last year, when the bill was discussed, there was a question in the villages of what exactly was school property. In a lot of villages, there are no boundaries from surveys. A lot of children will run their snowmobiles, etc. down the streets. If they have rifles and are going hunting, there is a possibility the children will cross school grounds. He asked Ms. Mehrkens if that issue had been addressed. MS. MEHRKENS answered that question has been already asked by two districts, but has not yet been addressed. CO-CHAIR BUNDE recalled that discussion from last year. His original bill required the gun to be unloaded and in a case. The current federal law simply states that person will not have a gun on school property. HB 28 was amended previously to make exceptions for rural schools; however, upon reflection Co-Chair Bunde feels that people pretty much know where school property is. There is no free lunch, and if the districts want federal aid, a person must find out where school property is and keep guns off of it. Number 2039 REPRESENTATIVE CAREN ROBINSON asked how the bill would affect a school like Juneau in which there is a shooting range in the bottom of the school. MS. MEHRKENS answered that was one of the biggest questions across the state. In fact, the DOE built many of those ranges. CO-CHAIR BUNDE interjected that HB 28 does allow for the school administrator to grant permission for such activities. This is also through the federal policy. MS. MEHRKENS said the federal requirements are concerned about students bringing guns to school. It is not particularly concerned about adults, although that is important to people also. Actually, the federal definition of "weapon" has an exclusion in it for sporting, recreation and cultural purposes. Those are reasons why a school administrator can allow students to bring guns onto school property. That is understood to mean rifle and gun safety classes, the Junior ROTC programs, etc. Number 2085 REPRESENTATIVE BRICE remembered that during last session's discussion, there was great concern about rural schools where there are wolves, bear, etc., and a weapon is carried for protection. He remembered that issue was addressed, but those factors are no longer in the current bill. He asked if those allowances had been taken out, and if so, is there no leniency with the federal program for those considerations. CO-CHAIR BUNDE said that he attempted to address this issue in Section 1 (A) and (C) which allows for rural exceptions, however, he did not know if this is a question that needs to be addressed by the federal government. Co-Chair Bunde, at this point, interpreted the mandate to say that the school administrator has the power to grant such exceptions. It will probably be a formal process, however. There will probably be some procedures involved in the exception process. In reference to the question concerning school boundaries, there is going to be an awareness of those boundaries. Number 2181 REPRESENTATIVE ROBINSON said that in Juneau there is already a gun policy in place. She does not know what the penalty is for violating that policy. HB 28 sounds like there would be automatic expulsion until there was a review. MS. MEHRKENS answered that the requirement is that the penalty for bringing a deadly weapon to school is expulsion. There will always be a hearing and an appeal process. After that year, the student may go through a type of rehabilitation program which allows them to be placed back in some sort of alternative setting or else be placed back in school more quickly. Anchorage currently has such a program. They have a referral program that puts the student through behavior and anger management. When the student is judged to be rehabilitated and safe, they are allowed back into the school. However, it is quite a long program and it is not an easy thing to go through. REPRESENTATIVE ROBINSON said she recognizes and supports the fact that guns should not be brought onto school grounds. There also needs to be serious penalties for that. But she has a fear that there will be no rehabilitation program present after expulsion and that society will simply lose these children. Representative Robinson asked if such allowances for rehabilitation programs are in the bill. Number 2253 CO-CHAIR BUNDE answered that the bill does not address the requirement for alternative programs. That would be up to the district. Representative Robinson asked if the bill prohibits such a program, and Co-Chair Bunde answered no. MS. MEHRKENS said the bill says the school administrator may, on a case by case basis, reduce or otherwise modify the expulsion or suspension of the student. CO-CHAIR BUNDE said that not all districts in the state have followed the expulsion policy throughout the Lower 48. This is one reason why the federal mandate requires the expulsion or suspension. There have been cases where a student in one district is expelled, moves down the road to another district, and the problem is passed on. TAPE 95-8, SIDE B Number 000 REPRESENTATIVE DAVIS asked if the federal law addresses this problem, and Ms. Mehrkens answered yes. MARGOT KNUTH, Assistant Attorney General in the Criminal Division, Department of Law, stated that Alaska Governor Tony Knowles will be introducing a bill on youth and firearms. This is an issue of concern to him. This bill is consistent with the Governor's approach to the general problem and will be coming out later this week. She noted that the federal Act specifically requires a case by case analysis of student's expulsion. The federal government fully realizes there may be cases where a full year's expulsion may not be appropriate. This realization is built into the provision of HB 28. MS. KNUTH said that in the past there has been concern about the constitutionality of the locker search provision. She said she would answer questions concerning this. Number 113 REPRESENTATIVE NORMAN ROKEBERG asked Ms. Knuth what the problems were revolving around such provisions and also if she would comment on the problems with the definitions of firearms. MS. KNUTH answered that the Constitution of the United States has a provision that protects people from unreasonable searches and seizures. The question, therefore, is what is reasonable and what is unreasonable. In this case, school lockers are the property of the school which is made available to students. Although there is some uncertainty whether Alaska would follow the federal interpretation, it is likely that Alaska will. The way that provision has been interpreted federally is that if a school provides notices that the locker is subject to searches for weapons or contraband, the lockers can be searched. The students do not have a reasonable expectation of privacy in regards to weapons or firearms in their lockers. MS. KNUTH continued by saying the school is prohibited from using any other items that may be found in the locker as a basis for any action against a student. A fear has been the discovery of birth control in a locker, and whether a student could be expelled for that if they went to a school which disapproved of such a thing. The answer is no. Birth control is not a contraband item. MS. KNUTH said that in respect to searching a student, either in a pat down search or in the desire to search a back pack or day pack, there is nothing similar to the consent that you can impute to students who are using a school locker. The Constitution applies fully to students for being safe from unreasonable search and seizures of their persons or possessions. Therefore, it is possible for a person to bring a gun in their purse or back pack and the school does not have any more authority than a police officer would to search a student for no reason at all. At the same time, if there is any reason to believe that the student does have a firearm, then there exists the basis for a reasonable search and seizure. What the government is precluded from doing is acting randomly and like "Big Brother," and intruding anytime and in any place. Number 314 MS. KNUTH said however, when you have information that suggests the possession of a weapon that is illegal under state law, then there is a basis for the search to be made. REPRESENTATIVE ROKEBERG asked if the administrators of the schools will now have to take classes in legal evidence, search and seizure, and constitutional law provisions to define probable cause and pat down a student. MS. KNUTH said that in fact, in the Lower 48 there are schools that have metal detectors at their entries because that is a constitutional way of finding guns. It is a difficult thing to become an expert on what is illegal and what is legal. It would take some efforts to provide that information. However, when there is a genuine problem, a person must rise to it and see what can be done. Ms. Knuth feels that in Alaska, particularly in Anchorage, a point has been reached in which everyone is motivated to try and deal with this problem. Number 326 REPRESENTATIVE ROKEBERG asked if a school administrator would have to abide by the same probable cause standards as a police officer. MS. KNUTH answered yes. REPRESENTATIVE ROKEBERG asked if there were provisions in the state statute which allowed for contraband items. MS. KNUTH answered that there was nothing pertaining to contraband items in the statutes. It is a part of the common law in Alaska. HB 28 is codifying existing law. It is comforting to have it in the statute. People will feel more secure in what the limits on the searches are, and the provision concerning notice for searches is a good one. REPRESENTATIVE ROKEBERG asked if there was a need for the statutory provision for contraband to be included in this bill. MS. KNUTH answered that it was not necessary. Number 455 CO-CHAIR BUNDE said that as someone who has some personal experience with what goes on in schools, he assured the HESS Committee members that not only administrators but each teacher is aware of their legal limitations when it comes to disciplining or physically touching a child. REPRESENTATIVE BRICE said that a question had been raised about what a school administrator can and cannot do as far as allowing for a special circumstance. He could not find that wording in the bill and he wondered if there was a specific section that could point to that. MS. KNUTH said that she does not have the CS, but she has HB 28 in front of her. She read page 4, lines 23 to 25: The administrative officer of a school district may, on a case by case basis, reduce or otherwise modify the expulsion or suspension of a student under (A) of this section. Number 549 REPRESENTATIVE BRICE said that the student still has to be expelled or suspended. This does not allow for legitimate reasons for having the firearm on campus, or for the circumstance in which a rifle is on a three wheeler for hunting and wildlife protection purposes and the person crosses school grounds. REPRESENTATIVE ROBINSON said that the provision Ms. Knuth just read does not cover these circumstances. The student must still be suspended or expelled. This then puts the burden on the student. MS. KNUTH said that the federal definition of a firearm is very unusual. It excludes rifles for purposes of competition. Firearm does not mean any gun. It means the type of gun the federal government believes should not be on school grounds. In that manner, they have addressed Representative Brice's concerns. If a person has a gun he or she is using for the shooting range, he or she will not be expelled or suspended. Ms. Knuth does not know if the federal mandate takes into account guns brought for personal safety from wildlife. That may be something the federal government may want to address for Alaska. But they dealt with the problem using their peculiar definition of firearm. Number 694 REPRESENTATIVE ROKEBERG asked what happens if students share lockers, and also if there was a type of due process or hearing procedure before expulsion or suspension. MS. KNUTH answered that a hearing process is in place for a student who possesses a weapon and should be expelled. There are due process provisions. Ms. Knuth did not have any information with respect to the sharing of lockers. Generally, in other search and seizure areas, if two people have control over an area, if one person consents to a search, that is binding for the other person. In this case, all students will be consenting to the search of a locker because they are using it on that understanding and on that condition. REPRESENTATIVE ROKEBERG was concerned about the possibility of two students denying a weapon belonged to either of them, and if there was a procedure in which they could defend themselves. CO-CHAIR BUNDE said that each school has a disciplinary policy which involves the rights of the students. This is not addressed in HB 28. Number 794 REPRESENTATIVE ROKEBERG noticed that there was a provision for the referral to law enforcement authorities, and he was concerned that on page 1, line 10 it talks of misconduct involving a fourth degree. Representative Rokeberg asked if these were degrees of misdemeanors. CO-CHAIR BUNDE said it was a misdemeanor. REPRESENTATIVE ROKEBERG said that on page 2, line 22, the word premises is used. Representative Rokeberg understood the definition of premises to be an improved property or building, not necessarily land. MS. KNUTH explained that the word premises, for the purposes of this statute, would mean property, improved or unimproved, and boundaries of that property that is owned by or associated with the school. The word premises is not limited to the building portion of the property. Number 860 REPRESENTATIVE ROKEBERG asked if the word "premises" was being defined in HB 28 for that interpretation. MS. KNUTH said that there is a common law definition of "premises," and she offered to look at Title 11 to see if there was a statutory definition, as well. It would be very unusual for the statutory definition to differ from the common law definition. REPRESENTATIVE ROKEBERG said that his use of the word "premises" in real property law is different, and this caused him concern. CO-CHAIR TOOHEY asked for the pleasure of the HESS Committee. Co- Chair Bunde motioned that CSHB 28 be moved from the Committee with the accompanying fiscal notes and with individual recommendations. There were no objections and the bill was moved.
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