Legislature(1999 - 2000)
04/30/1999 01:20 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
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= bill was previously heard/scheduled
HB 154 - ILLEGAL USE OF LASER POINTERS
Number 0078
CHAIRMAN KOTT announced that the first item of business would be
House Bill No. 154, "An Act relating to the use of laser sighting
devices."
Number 0113
CHRIS KNIGHT, Researcher for Representative Allen Kemplen, Alaska
State Legislature, came forward on behalf of the sponsor. He
explained that HB 154, introduced after speaking with an Anchorage
police officer, provides an avenue for halting disruption of
community events. In addition, he reminded members of the
difficulty in differentiating between laser sighting weapons and
pointing devices, and that officers could feel the threat of
imminent danger upon detecting a beam on them. Current statutes on
assault in the fourth degree have a minimum requirement of 30 days
if an officer feels threatened or can prove that he or she was
under the threat of imminent danger. However, it is often
difficult to prove a threat of imminent danger. Therefore, HB 154
also allows in-line officers a second option for prosecution, by
amending the statutes to add another form of disorderly conduct,
with the requirement of just proving that the officer was under the
"painting" of a laser sighting device.
Number 0284
REPRESENTATIVE ROKEBERG asked if there are incidents that the
Anchorage Police Department could cite in the state as examples.
MR. KNIGHT replied that he doesn't have any examples in print.
However, to his understanding, a court case was prosecuted
successfully for assault in the fourth degree concerning a laser
sighting device, wherein the defendant admitted he had wanted to
see what the police officer's reaction would be. Mr. Knight also
recounted a recent personal experience where laser sighting devices
were used to highlight a female cheerleader's body. He noted that
he had provided to the committee aide some articles discussing
various situations, and he informed members that a police officer
he knows is willing to provide more information, as well.
Number 0380
REPRESENTATIVE CROFT referred to an amendment that had just been
distributed, which read:
Change Section 3 to Section 4
Add new Section 3:
Section 3. AS 11.61.110 is amended by adding a new subsection
to read:
(d) The provisions of (a)(8) of this section do not apply to
a peace officer acting within the scope and authority of the
officer's employment.
Modify Section 4 to reflect correct subsection:
Section 4. AS 11.61.110 is amended by adding a new subsection
to read:
(e) In the section, "laser...
REPRESENTATIVE CROFT said he believes it was proposed by the
Department of Law. He asked whether Mr. Knight had seen it.
MR. KNIGHT said no.
REPRESENTATIVE CROFT explained that the concern, to his belief, is
that putting this under "disorderly conduct" is fine, but there is
a need to ensure that it doesn't stop the prosecution Mr. Knight
had described for assault against a police officer, when the higher
crime can be proved. He suggested HB 154 would be appropriate for
the run-of-the-mill harassment, however. Representative Croft said
he believes that is all the amendment does. He asked for
confirmation that, at least conceptually, Mr. Knight and the
sponsor have no problem with ensuring that an assault charge is
still open, if assault can be proved.
MR. KNIGHT replied, "We definitely don't want to preclude the
higher option, which would be a Class A misdemeanor for assault in
the fourth degree. So, if this amendment would actually increase
that option, then I think this is a great amendment."
Number 0497
REPRESENTATIVE ROKEBERG requested clarification about the
classification of the offense under AS 11.61.110(a).
Number 0527
MR. KNIGHT explained that currently if an officer feels the threat
of imminent danger, that is prosecuted as assault in the fourth
degree, which carries a minimum of 30 days in jail and a maximum,
as a Class A misdemeanor, of a year in jail. This legislation
allows for a second prosecutable offense, in that an individual can
be charged with disorderly conduct. If the device were used on a
police officer, the charge wouldn't be limited by the current
statutes for disorderly conduct, with a maximum of 10 days.
Rather, the judge would have discretion under the entire statute of
Class B misdemeanors, from zero to 90 days, allowing greater
flexibility.
Number 0601
CHAIRMAN KOTT informed members that the committee would lay aside
HB 154 until after the hearing on HB 214.
HB 154 - ILLEGAL USE OF LASER POINTERS
Number 0604
CHAIRMAN KOTT announced that the committee would again take up
House Bill No. 154, "An Act relating to the use of laser sighting
devices." He noted that there had been opening remarks and
discussion with the sponsor's representative. He then showed
members the laser pointer on his own key chain.
Number 0623
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, told members
that his department's concerns over the bill were already
expressed. First is that the bill takes an offense that could be
a misdemeanor assault, punishable by up to a year in jail, and
lowers it to disorderly conduct, punishable by 90 days in jail, at
most. When a police officer is the victim and is afraid of being
shot, the current law regarding assault is the appropriate level,
he stated, noting that at least one case has been successfully
prosecuted at that level. Misdemeanor assault on a police officer
carries a minimum of 30 days in jail, which the department believes
to be appropriate. Mr. Guaneli suggested there are a variety of
ways to draft around that, although he needs time to work with the
sponsor and drafters to try to accomplish that.
MR. GUANELI voiced another concern, referring to an amendment
mentioned by Representative Croft. Proposed by the Department of
Public Safety, that amendment says that this section wouldn't apply
to a peace officer; in other words, a peace officer with a laser
sight on a gun or some equipment wouldn't be charged under this
statute, even though someone found that harassing or annoying. Mr.
Guaneli said he isn't absolutely certain that this amendment is
required, because he believes that some general provisions in
Alaska law say that peace officers acting within the course and
scope of their duties can do things that otherwise might be crimes.
He cited handling drugs as evidence as an example. However, he
added, if it would make peace officers feel better, the department
has no objection to that provision.
MR. GUANELI restated that lowering the level of offense to a Class
B misdemeanor when it rises to the level of an assault is
problematic. He requested time to see whether there is a way
around that.
Number 0739
REPRESENTATIVE GREEN commented that he'd had concerns with that as
well.
MR. GUANELI clarified that if it were enacted as it is, he doesn't
believe that an assault could be charged. This is a much more
specific offense, with specific elements. Therefore, it has been
removed from the assault offense, in effect, and placed one level
lower.
Number 0794
CHAIRMAN KOTT announced that they would hold the bill over and have
the sponsor work with the Department of Law. "I think all of us
have basically the same concern," he added, indicating the desire
to eliminate any unintended consequences.
Number 0819
GERALD LUCKHAUPT, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, came forward, disagreeing
with Mr. Guaneli's conclusion that this would prevent the charge of
assault. He said one element of assault is causing physical injury
or placing the person in imminent fear. He sees nothing in Alaska
case law or under the United States Constitution that would prevent
the department from charging assault after this crime. Mr.
Luckhaupt stated:
If that is a concern, we can draft around that very easily.
We can say, under this, "in circumstances not proscribed under
assault in the fourth degree," for example, "or not proscribed
under AS 11.41," and ... those circumstances will all be
removed.
I see this as merely something that adds on to those
alternatives that can be charged now, and I think the sponsor
understands it, through our discussion with his staff, that,
to the extent that a laser pointer ... gets in the eye of the
officer or something like that, and to the extent you cause
any physical pain, that's an assault. It's clearly a crime
under current law. To the extent the officer is placed in
fear of imminent physical injury, that's fourth degree
assault, and that's a crime.
As to Representative Croft's proposed amendment about having
to ... set out that this does not apply to peace officers, we
don't do that in terms of pointing the gun that the laser
sight is on, which, ... [if] a peace officer were to point
that at a suspect or something like that, that is not a crime
under Alaska law, because of the defense we provide. ... But
we don't, anywhere in the assault statutes, say that this does
not apply to officers, when you place someone in fear of
imminent physical injury, by means of a dangerous instrument.
To do it here would imply that the legislature is not
providing that defense elsewhere. And so, I would advise very
strongly against doing that.
And, basically, the main reason is it isn't necessary, because
we provide an "out" later on in our statutes, that anyone
performing a public duty (indisc.) from the crime, the
criminal liability. But the reason the sponsor has it drafted
this way is due to some interplay between us and the
Department of Law earlier in session.
Number 0946
REPRESENTATIVE GREEN asked whether the term "threatening" isn't
used for assault.
MR. LUCKHAUPT replied:
Not exactly. We use the term, "if you are placed in fear of
imminent physical injury." It's a fourth degree assault. Or
"by means of a dangerous instrument you're placed in fear of
physical injury," that becomes a higher level of assault, that
becomes a felony form of assault. We don't use ... the word
"threat" per se in the assault statutes. We use it in
stalking. We use it in some of the offenses in AS 11.61
around disorderly conduct, in regards to annoying and
harassing phone calls that can be considered threatening. ...
While people think of it as being something akin to an assault
- and it is, under a common law idea, what assault and battery
is: the assault is the threat, the battery is the actual
touching - that's the common understanding, but it's not how
we define it, in terms of our assault statutes themselves.
MR. LUCKHAUPT indicated this follows how other jurisdictions have
enacted such laws, as a disorderly conduct type of offense. He
noted that to the extent that any physical injury was caused or
threatened, that would be assault, already codified under current
law.
Number 1091
REPRESENTATIVE GREEN asked for confirmation that "the threatening
effect the act may have on another person" is not assault.
MR. LUCKHAUPT said that is not assault. If the victim is placed in
fear of physical injury, however, that is an assault. He cited
some examples using guns. If Person A points a toy gun at Person
B, who knows it to be a toy, there is no fear and therefore no
assault. Similarly, if a real gun is pointed but Person B believes
it to be a toy, there is no fear and potentially no assault;
however, there is reckless endangerment because the gun is real.
In the case of the laser pointer, the statute wouldn't depend on
the fear. Just as pointing a gun at someone is, of itself, a
crime, this says that it is a crime to point a laser sighted device
with reckless disregard for the fear that the person might feel.
REPRESENTATIVE GREEN responded that, as written, it seems that
"threatening" could be interpreted either way.
MR. LUCKHAUPT restated his earlier points. He added that some
people will be annoyed by this, just as some people will be
insulted by someone dropping their pants or "mooning," which is
right above that, in subsection (7).
Number 1266
REPRESENTATIVE GREEN pointed out that another attorney had said
there is a problem, however.
MR. LUCKHAUPT noted that he had begun by saying although he didn't
agree with Mr. Guaneli, it can be solved by adding a reference that
says, "in a manner not proscribed under AS 11.41." He reiterated
that he doesn't see where this prevents assault from being charged,
and that in other states, it hasn't prevented assaults from being
charged under these same circumstances. He also reiterated that he
knows of no case law that would prevent that.
Number 1304
REPRESENTATIVE ROKEBERG commented that he personally would consider
it an assault if a laser beam were pointed at him from an unknown
source. It would frighten him, he said, and he would think it was
a weapon. He suggested that is a much higher level of offense than
being "mooned."
Number 1380
CHAIRMAN KOTT remarked that it has been described to him that these
devices can shine up to 2,500 feet. The new green laser lights can
supposedly shine up to three miles.
CHAIRMAN KOTT announced that HB 154 would be held over in order to
try to satisfy the committee with language that resolves the
problems described.
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