Legislature(1999 - 2000)

04/28/1999 01:20 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                                                                                                                                
                                                                                                                                
SSHB 33 - ARRESTS BY PRIVATE PERSONS                                                                                            
                                                                                                                                
CHAIRMAN KOTT announced  the next order of business is Sponsor                                                                  
Substitute for House Bill No. 33, "An Act relating to bounty                                                                    
hunters and to capturing criminal suspects or fugitives."                                                                       
                                                                                                                                
CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the                                                               
bill.                                                                                                                           
                                                                                                                                
Number 2035                                                                                                                     
                                                                                                                                
REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before                                                                
the committee as sponsor of SSHB 33.  He referred to a federal law                                                              
back in the 1800s and some federal decisions that allowed for                                                                   
bounty hunters.  This bill was prompted by the unfortunate                                                                      
experience when two or three gentlemen under contract, broke into                                                               
a home in the Kenai area wearing black outfits and brandishing                                                                  
weapons, took a person out at gunpoint, and handcuffed him.  There                                                              
was quite a bit of concern.  The public safety officers are                                                                     
concerned also for the people who are contracting to provide this                                                               
service, particularly in the areas of Alaska where people take                                                                  
exception to having their homes broken into in the middle of the                                                                
night and are prepared and equipped to resist those efforts.  The                                                               
first draft just forced the bounty hunters to register with the                                                                 
local law enforcement.  The public safety officers asked them to                                                                
just prohibit it.  The public safety officers pick up any felony                                                                
warrants as soon as they know about them.  Any other jurisdiction,                                                              
as in Canada or other countries, where they are willing to                                                                      
extradite, the public safety officers are willing to go out and get                                                             
them.  The public safety officers don't want people who are ducking                                                             
warrants in other states or areas to be running around.                                                                         
                                                                                                                                
REPRESENTATIVE DYSON further stated he is concerned about the                                                                   
well-being of the Alaskan citizen who is in custody of some                                                                     
non-sworn folks, and how they are going to be treated.  He also                                                                 
wonders how the neighbors are supposed to respond to somebody                                                                   
getting rousted in the middle of the night at gunpoint.  It is an                                                               
area that needs to be addressed.                                                                                                
                                                                                                                                
Number 2289                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked whether this bill just eliminates bounty                                                             
hunters or does it eliminate citizen's arrest.                                                                                  
                                                                                                                                
REPRESENTATIVE DYSON replied that it not their intention to do                                                                  
anything about citizen's arrest.  Citizen's arrests are allowed.                                                                
                                                                                                                                
REPRESENTATIVE CROFT asked what was the law before Section 1.                                                                   
                                                                                                                                
TAPE 99-44, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON said, "...for a crime you didn't witness                                                                   
without a warrant.  The only exception to that has been this old                                                                
federal decision that empowered bounty hunters in essence do it on                                                              
contract.  If the person employing them had a warrant or they                                                                   
themselves or they could contract for folks to go get them.  The                                                                
law expects you to call the police and report, but they would                                                                   
choose to have you as a verifying witness not an enthusiastic                                                                   
participant."                                                                                                                   
                                                                                                                                
Number 0090                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked whether there is anything on the                                                                 
state books now that regulates bounty hunters.                                                                                  
                                                                                                                                
REPRESENTATIVE DYSON said that it is his understanding that there                                                               
is not.                                                                                                                         
                                                                                                                                
Number 0136                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked whether there is anything in federal                                                             
statute that could be used within the individual states that would                                                              
give some guidance or direction.                                                                                                
                                                                                                                                
REPRESENTATIVE DYSON didn't know the answer.  Whenever this has                                                                 
come up, it always goes back to the case in 1867 or 1878 in a                                                                   
federal court where the decision authorized it.  Several states are                                                             
moving towards regulating it.                                                                                                   
                                                                                                                                
Number 0222                                                                                                                     
                                                                                                                                
DAVID HUDSON, First Sergeant, Division of Alaska State Troopers,                                                                
Department of Public Safety, testified via teleconference from                                                                  
Anchorage.  In regard to the situation in the Kenai area recently,                                                              
they support this bill.  By placing the onus of arrest on peace                                                                 
officers in a majority of situations in eliminating the private                                                                 
persons arrest in crimes not committed or attempted the presence of                                                             
the person making the arrest, they hope to eliminate some of the                                                                
problems which they have seen regarding bounty hunting.  National                                                               
news has been responsive to these issues of bounty hunters across                                                               
the nation, and there is national bounty hunters association where                                                              
anybody, under federal statutes dating back to the 1800s, can go                                                                
into another state, or they have no limits to what they can do in                                                               
regards to making arrests under the federal statutes of someone who                                                             
has absconded from a bail or bondsman or something of that nature.                                                              
It is a way of the bail bondsman not losing his/her money when they                                                             
put up the funds to have a person released in their community.                                                                  
They will lose those funds if the person is not brought back before                                                             
the court in a specific time.  That is what the impetus is for                                                                  
bounty hunters.  There are no particular statutes or licensing                                                                  
requirements for bounty hunters in the state of Alaska.  He doesn't                                                             
know of any in other states either.  They are in support of the                                                                 
bill and believe it will preclude situations like the previous one.                                                             
                                                                                                                                
REPRESENTATIVE GREEN asked Sergeant Hudson how many arrests have                                                                
been made by bounty hunters roughly per year, or per decade.                                                                    
                                                                                                                                
SERGEANT HUDSON can think of several in his personal experience,                                                                
however he has no statistical documentation to provide today to                                                                 
answer that.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GREEN asked whether this is not an uncommon thing to                                                             
have people being arrested by someone coming in as a bounty hunter.                                                             
                                                                                                                                
SERGEANT HUDSON said he is aware of a situation approximately a                                                                 
year ago in Homer that there was a person in that area, or believed                                                             
to be in that area, for whom bounty hunters came after.  When they                                                              
were unable to locate that individual on their own, they did                                                                    
contact the Alaska State Troopers.   The troopers then verified                                                                 
that there was a warrant for the individual, and they went out,                                                                 
located and arrested him.  He felt that if the bounty hunters had                                                               
been able to find the person in a timely manner, they would have                                                                
made the arrest and would have removed the individual from the                                                                  
state and the troopers probably would have never known about it.                                                                
As it is now, they would probably not know about these arrests if                                                               
they happened smoothly, and the law enforcement wasn't called in as                                                             
it was in the Soldotna case.                                                                                                    
                                                                                                                                
REPRESENTATIVE GREEN asked whether Sergeant Hudson has any idea of                                                              
how much mischief has been caused by either false arrests or the                                                                
Kenai area situation.                                                                                                           
                                                                                                                                
SERGEANT HUDSON agreed the scenario in the Kenai area could have                                                                
played out extremely different than what it had.  If he remembers                                                               
correctly, the individual was seized from the father's home, and                                                                
the father then took a gun and went looking for the bounty hunters.                                                             
There were numerous law enforcement officers who were called to the                                                             
scene into areas looking for them for the potential home invasion,                                                              
which it sounded like when the call was made for help on 911.                                                                   
There is no doubt in anybody's mind that the situation could have                                                               
turned out extremely different; however, in that case no one was                                                                
injured.                                                                                                                        
                                                                                                                                
Number 0604                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES asked how there wouldn't also be a charge                                                                  
against these folks for unlawful use of deadly force.                                                                           
                                                                                                                                
SERGEANT HUDSON replied that these individuals were charged with                                                                
assault under Alaska statutes.  He is not familiar with what the                                                                
status is of the current case.                                                                                                  
                                                                                                                                
REPRESENTATIVE DYSON told Representative James that the court case                                                              
is going on this week.  He asked Sergeant Hudson if he thinks that                                                              
the bail bonds industry will almost disappear if the bill does                                                                  
pass.                                                                                                                           
                                                                                                                                
SERGEANT HUDSON finds that hard to believe.  People are entitled to                                                             
bail under the constitution so he suspects that they will continue                                                              
to operate no matter how this law changes.                                                                                      
                                                                                                                                
REPRESENTATIVE DYSON asked what the remedy will be if someone jumps                                                             
bails or fails to appear on a misdemeanor.                                                                                      
                                                                                                                                
SERGEANT HUDSON answered that if a person fails to respond to                                                                   
court, the judge would then issue a bench warrant for that person                                                               
and they would eventually be arrested through the normal arrest                                                                 
system.  He is unfamiliar with the statutes in regard to bail                                                                   
bondsmen if a subject doesn't show up to court on Monday, but is                                                                
subsequently arrested and taken in front of a magistrate or judge                                                               
on Tuesday that is of the bail bondsman's fees would be, so he                                                                  
can't answer that.                                                                                                              
                                                                                                                                
REPRESENTATIVE DYSON commented that bail bondsmen are very                                                                      
inventive and they will find a way to look after their own                                                                      
interests.                                                                                                                      
                                                                                                                                
Number 0772                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT commented that he is still trying to                                                                       
understand the current law, AS 12.25.030, as to his ability to make                                                             
a citizen's arrest.  He interprets that he could under part (a)                                                                 
under three situations:  if the crime was committed in his                                                                      
presence, if he is right about who did it, and if it is a felony                                                                
even though it was not committed in his presence, or if he is right                                                             
about a felony having been committed, and he has reasonable cause                                                               
for believing that the person he goes out and grabs did it.                                                                     
                                                                                                                                
SERGEANT HUDSON indicated that Representative Croft's                                                                           
interpretation is similar to what he also sees when he reads this                                                               
statute.  Currently under AS 12.25.030 under parts (2) and (3), it                                                              
allows citizens of the state of Alaska to make an arrest, as a law                                                              
enforcement officer could, for a felony either committed or not                                                                 
committed in their presence or with reasonable suspicion or cause.                                                              
Whereas under the amendment that is before them under 12.25.025                                                                 
which would be in Section 1, lines 6-8, a private person would now                                                              
be eliminated from making a felony arrest for a crime committed not                                                             
in their presence.                                                                                                              
                                                                                                                                
REPRESENTATIVE CROFT asked whether Sections 2 and 3, not including                                                              
bounty hunters, have been problematic for the state troopers.  He                                                               
asked whether they have a lot of vengeance arrests and some that                                                                
have been wrong.                                                                                                                
                                                                                                                                
SERGEANT HUDSON answered that he is not aware of any specific                                                                   
problems across the state where a citizen has made a felony arrest,                                                             
and it has been an issue.  He doesn't have any statistical                                                                      
information to offer, just his own personal experience.                                                                         
                                                                                                                                
Number 0954                                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN asked Sergeant Hudson if he is familiar with                                                               
the article where Dean Guaneli, Chief Assistant Attorney General,                                                               
was quoted about untrained people getting liquored up and kicking                                                               
in the wrong doors.  He asked whether all bounty hunters are                                                                    
licensed to carry concealed weapons.                                                                                            
                                                                                                                                
SERGEANT HUDSON answered as far as carrying concealed weapons under                                                             
the Alaska concealed handgun permit program, there is no formal                                                                 
carrying concealed weapons for bounty hunters or any other                                                                      
individuals specifically other than the citizens of the state of                                                                
Alaska meeting the criteria as so deemed.  There are not any                                                                    
statutes or laws or licensing in regards to allowing any particular                                                             
business, such as a bounty hunter, to carry a concealed weapon.                                                                 
Even in their security guard licensing program, they are required                                                               
to be working for their company, and the weapons are not concealed.                                                             
The weapons are exposed, and they wear a uniform and identification                                                             
from their company.  He is not aware of any specifics in regard to                                                              
bounty hunters being legally authorized in the state of Alaska                                                                  
carrying concealed weapons.                                                                                                     
                                                                                                                                
REPRESENTATIVE GREEN are these people uniformed and showing weapons                                                             
when they go after these bond jumpers.                                                                                          
                                                                                                                                
SERGEANT HUDSON said in his limited experience with people who                                                                  
profess to be bounty hunters, they put on what they call a uniform,                                                             
put a sign on their back saying that they are bounty hunters or                                                                 
call themselves whatever they choose to call and wear sidearms and                                                              
go about their business.  In our state, if they are not carrying a                                                              
concealed weapon, if they are carrying a firearm exposed, that is                                                               
not against the law unless they are a felon, or there is a                                                                      
municipal code against that so they can wear some type of                                                                       
identifying marks as long as they were not impersonating a public                                                               
officer, they wouldn't be breaking the law.                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES said she doesn't understand, under existing                                                                
laws, that private persons may arrest a person without a warrant.                                                               
That means they have to convince them that they are arrested.  She                                                              
doesn't believe they can pull their sidearm without violating the                                                               
unlawful use of deadly force, unless that person is threatening                                                                 
them in some way.  She can't imagine anybody arresting somebody                                                                 
without some power to overcome them, either physically or with a                                                                
gun, and it seems like the law is clear that they can't do that                                                                 
unless their life is being threatened.  She asked Sergeant Hudson                                                               
to respond to that.                                                                                                             
                                                                                                                                
SERGEANT HUDSON said he didn't understand exactly what she is                                                                   
asking, other than the fact that he believes the law allows during                                                              
the making of an arrest, to utilize reasonable force.  If they                                                                  
could legally make an arrest, then they could use whatever would be                                                             
the justifiable minimum force.  He assumes that if a bounty hunter                                                              
or citizen had a legitimate reason to make an arrest, then they                                                                 
could utilize a level of justifiable force up to the level needed                                                               
to make that arrest.  It is not appropriate for a citizen or a law                                                              
enforcement officer to start waving firearms around and assaulting                                                              
people, even during an arrest, unless that level of force is                                                                    
justified.                                                                                                                      
                                                                                                                                
REPRESENTATIVE JAMES mentioned a case where someone was up on a                                                                 
ladder trying to steal something, and the homeowner took away the                                                               
ladder and held the person at gunpoint until the police came.                                                                   
                                                                                                                                
SERGEANT HUDSON said it is not uncommon in Alaska for the citizens                                                              
to apprehend individuals burglarizing their homes or stealing their                                                             
property and utilizing such methods.                                                                                            
                                                                                                                                
Number 1348                                                                                                                     
                                                                                                                                
CORY WINCHELL, Administrative Assistant to Representative Pete                                                                  
Kott, Alaska State Legislature, appreciates the bill and is not                                                                 
making a position on it.  The majority of the bounty hunters going                                                              
after these people have a contract.  They have been bailed out for                                                              
serious crimes, hardcore felony crimes.  They actually go in, they                                                              
have been taken into custody, and they bond out.  They sign a                                                                   
contract that basically says if I'm not showing up for these things                                                             
you have the right to go into my house, the people that come in and                                                             
sign for them actually say you can come into my house to find him                                                               
if you need to if he doesn't show up.  By that contract it is                                                                   
spelled out, we have been doing a bail type system since the                                                                    
country's inception.  All of them are those types of contracts and                                                              
then the bounty hunters actually are attached to or are employees                                                               
to for the companies that do the bailing.  You have a contract down                                                             
and say I promise to pay you guys 10 percent of this or x amount,                                                               
we're going to bail you out at ten percent of this and you are                                                                  
going to show up for every single one of your hearings and if you                                                               
don't, we are going to chase you down.  Officer Hudson did talk                                                                 
about cross-jurisdictional boundaries.  They are basically                                                                      
enforcing a contract and the situations do get sticky.  If he can                                                               
argue on behalf of Representative Dyson, there was an occurrence in                                                             
Arizona where someone actually kicked down the wrong door and there                                                             
was killing that occurred.  They killed innocent people.  So                                                                    
accidents do occur.  However, by enacting this bill they are going                                                              
to making substantial inroads into the bail system.  It is by                                                                   
contract that they do these things for the most part.  He doesn't                                                               
know any posses that say "Hey, let's go find us some felons and                                                                 
make some arrests because we can under an 1800s statutes."  It is                                                               
a contractual basis, a bail bonding basis and one concern is the                                                                
misdemeanors.  Police officers perhaps won't have the time, the                                                                 
energy, the gumption, practically speaking, if they force the                                                                   
policeman to go out and execute warrants, even if these folks are                                                               
bailed out on misdemeanor charges, practically is just might not                                                                
happen.  He spoke to Representative Dyson for amendments to placing                                                             
a registration in regard to bounty hunters, getting into their                                                                  
background, history and ensuring that they are not psychopaths, and                                                             
the second thing is for any felony warrants that they are actually                                                              
executing that they contact local law enforcement, that they make                                                               
it mandatory by statute, as to the time, whether they are under                                                                 
contract to go into that house, to ensure that the contract is                                                                  
being complied with on both ends and/or to ask for backup or have                                                               
the police do it on the more serious felony levels.                                                                             
                                                                                                                                
REPRESENTATIVE GREEN asked whether Mr. Winchell was saying if this                                                              
is passed that the cost of bail bonding will go up or that there                                                                
will be people who will no longer serve as bail bondsmen.                                                                       
                                                                                                                                
MR. WINCHELL answered no.  He said under Washington's system, the                                                               
courts themselves can offer bonding arrangements so it can be                                                                   
incorporated back into the court, and perhaps that is the flavor of                                                             
where the law is going.  They want the courts to do it and not                                                                  
private individuals.  He was only suggesting that if they can't                                                                 
private bounty hunters for bail bonding agents under contract and                                                               
if they require policemen in general to do it, they might have bail                                                             
bonding agencies that are not willing to bond out on the smaller                                                                
measures because they know they are going to fly and perhaps law                                                                
enforcement can get to it.  They have more pressing issues.  There                                                              
will be a burden on that.  There is a contract involved; they know                                                              
if they skip or run that someone will chase them.                                                                               
                                                                                                                                
REPRESENTATIVE GREEN asked, if the bounty hunters were to register,                                                             
would that go so far down the road that they might as well allow                                                                
the peace officer to go get them rather than the bounty hunter.                                                                 
                                                                                                                                
MR. WINCHELL answered yes they have taken the felonies and placed                                                               
them into the police officer's arms and notable so in the case of                                                               
felonies.                                                                                                                       
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Winchell if Washington had a                                                                 
registration for bounty hunters.                                                                                                
                                                                                                                                
MR. WINCHELL said he was associated with one of the bail bonding                                                                
agencies and they would go after unclassified.  Whether they were                                                               
registered or not, he didn't have to put that within the purview.                                                               
He linked on as an associate.  He was not registered, but he                                                                    
doesn't know if they were or not.  On the weapon's issue, he does                                                               
have a concealed weapon in Washington and can carry it.                                                                         
                                                                                                                                
Number 1747                                                                                                                     
                                                                                                                                
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department                                                               
of Administration, testified via teleconference from Anchorage                                                                  
saying they support the legislation.  It is better to leave this                                                                
type of thing to professional law enforcement people.  He wonders                                                               
whether the statute conditions of release on the amendment should                                                               
be AS 12.30.020 rather than AS 12.30.030.  He had a question on the                                                             
type of force allowed in making arrest or terminating his case,                                                                 
that is found in the justification statutes AS 11.81.390.  It is                                                                
important to note that they can use non-deadly force in making                                                                  
arrests that have occurred in their presence, but deadly force                                                                  
should only be used where there is a felony against the person or                                                               
involving use of force against the person involving a firearm.                                                                  
There have been cases of someone making a citizen's arrest on minor                                                             
vandalism and being charged with assault in that situation and not                                                              
have a justification defense.                                                                                                   
                                                                                                                                
CHAIRMAN KOTT noted that they do have an amendment to replace AS                                                                
12.30.030 with AS 12.30.020.                                                                                                    
                                                                                                                                
MR. McCUNE wondered if the words "conditions of release" referred                                                               
to the conditions of release that are set by the judicial officer                                                               
and those are usually in AS 12.30.020.                                                                                          
                                                                                                                                
MS. TORKELSON told them that Legislative Legal and Research                                                                     
Services explained to her that the portion on page 4, line 7, that                                                              
is taken out 12.25.030(b), they moved (b) to (a), therefore it                                                                  
should read 12.25.030.  It was a typographical error.                                                                           
                                                                                                                                
Number 1990                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which                                                                  
reads as follows:                                                                                                               
                                                                                                                                
     Page 4, following line 7:                                                                                                  
                                                                                                                                
          Insert a new bill section to read:                                                                                    
                                                                                                                                
          "* Section 3.  AS 12.70.130 is amended to read:                                                                       
                                                                                                                                
     Sec. 12.70.130.  Arrest without warrant.  The arrest of a                                                                  
     person may also be lawfully made by a peace officer [OR A                                                                  
     PRIVATE PERSON] without a warrant upon  reasonable information                                                             
     that the accused stands charged in the courts of another state                                                             
     with a crime punishable by death or imprisonment for a term                                                                
     exceeding one year, When [,but when] arrested, the accused                                                                 
     must be taken before a judge or magistrate without unnecessary                                                             
     delay and, in any event, within 24 hours after arrest,                                                                     
     including Sundays and holidays.  A [, AND] complaint shall be                                                              
     made against the accused under oath setting out the ground for                                                             
     the arrest as in AS 12.70.120.  Thereafter, the answer of the                                                              
     accused shall be heard as if the accused had been arrested on                                                              
     a warrant."                                                                                                                
                                                                                                                                
REPRESENTATIVE GREEN objected for discussion purposes.  He noted                                                                
that the amendment says Section 3, and he believes it should be                                                                 
Section 6.                                                                                                                      
                                                                                                                                
CHAIRMAN KOTT agreed that it should read Section 6.  With that                                                                  
change noted, he asked whether there was any objection.  There                                                                  
being none, Amendment 1 was so adopted.                                                                                         
                                                                                                                                
Number 2024                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to move Amendment 2, which reads                                                             
as follows:                                                                                                                     
                                                                                                                                
     Page 4, Line 7                                                                                                             
                                                                                                                                
          Delete "AS 12.30.030"                                                                                                 
                                                                                                                                
          Add "AS 12.25.030"                                                                                                    
                                                                                                                                
CHAIRMAN KOTT asked whether there is any objection.  There being                                                                
none, Amendment 2 was so adopted.                                                                                               
                                                                                                                                
Number 2042                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT said they have dealt with the bounty hunter                                                                
issue to his satisfaction, but he is still struggling with the                                                                  
change in the authority of a private person to do something.  He                                                                
noted that it is a fairly significant change in the law that a                                                                  
private person cannot arrest somebody who committed a felony unless                                                             
it was done in his presence.  For example, somebody breaks into his                                                             
house, he gets home and the person is outside on the street, his                                                                
wife says "That is the one," and now he is limited to calling the                                                               
police.  It may be what they want to do, but he would like more                                                                 
discussion on that issue.                                                                                                       
                                                                                                                                
REPRESENTATIVE DYSON responded to Representative Croft that his                                                                 
wife could make the arrest with his assistance.  As long as                                                                     
somebody who witnessed the crime was there, he/she is the one                                                                   
technically making the arrest.  They don't want people without any                                                              
knowledge of the crime doing it.                                                                                                
                                                                                                                                
REPRESENTATIVE JAMES made a motion to move SSHB 33, Version                                                                     
1-LSO240\D, as amended, from the committee with individual                                                                      
recommendations and the attached zero fiscal note(s).  There being                                                              
no objection, CSSSHB 33(JUD) was so moved from the House Judiciary                                                              
Standing Committee.                                                                                                             

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