Legislature(2007 - 2008)CAPITOL 120
05/03/2007 01:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB225 | |
| HB237 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 225 | TELECONFERENCED | |
| + | HB 237 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 225-POSSESSION OF WEAPON WHILE ON BAIL 1:36:33 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 225, "An Act relating to misconduct involving weapons and bail." [Before the committee was the proposed committee substitute (CS) for HB 225, Version 25-LS0710\M, Luckhaupt, 4/11/07, which had been adopted as the work draft on 4/13/07 and amended on 4/30/07. 1:37:05 PM REPRESENTATIVE DAHLSTROM made a motion to [adopt the proposed committee substitute (CS) for HB 225, Version 25-LS0710\K, Luckhaupt, 5/1/07, as the work draft]. There being no objection, Version K was before the committee. 1:37:17 PM JEANNE OSTNES, Staff to Representative Craig Johnson, Alaska State Legislature, after noting that members should have in their packets a letter from the National Rifle Association (NRA), stated that she has been working with the NRA to address its concerns with the bill. To that end, the proposed amendment, labeled 25-LS0710\K.1, Luckhaupt, 5/3/07, [Amendment 1] came at the request of the NRA. MS. OSTNES, in response to a question, indicated that Version K no longer contains Version M's proposed addition of AS 12.30.018; this change, via Amendment 1 to Version M, also came at the request of the NRA. 1:42:24 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), in response to a question, stated that proposed AS 12.30.018 mandates under Title 11 that a person on release, before and after trial for a felony, not possess a concealed firearm. The deletion of this provision necessitated altering the statutory references in Section 1 of Version K; Section 1 now references proposed AS 11.61.200(a)(13)and AS 11.61.210(a)(9). These provisions are addressing those circumstances in which the bill would create a higher crime for carrying concealed in violation of a court order not to while out on bail. MS. CARPENETI further stated that currently it is a crime under AS 11.56.757 for any person to violate a condition imposed by the court in connection with a bail release. This bill, HB 225, makes these crimes a class C felony or a class A misdemeanor under certain circumstances. 1:44:38 PM MS. OSTNES noted that in a letter from Brian Judy, the NRA wanted to make sure the court had the full discretion to choose. The proposed amendment labeled 25-LS0710\K.1, Luckhaupt, 5/3/07, addresses this request. REPRESENTATIVE GRUENBERG noted his agreement with Mr. Judy that the court needs discretion. CHAIR RAMRAS asked if DOL supported the changes to Version K. MS. CARPENETI offered her belief that she has no concerns with someone out on bail not being allowed to carry a concealed weapon. The judge already has the discretion with sentencing and this has not changed. This bill just raises the penalties. 1:46:35 PM CHAIR RAMRAS expressed concern that the bill has been changed by many degrees. He asked whether the bill still does anything. MS. OSTNES responded that the bill now separates misdemeanor and felony. Currently, if an individual is carrying a firearm, in violation of condition of release, it is a misdemeanor. CHAIR RAMRAS questioned whether it depends upon whether [the initial charge] was for a misdemeanor or a felony. MS. OSTNES replied that, without this bill, if someone were charged with carrying a concealed weapon, he/she would be charged with a misdemeanor, whether the original charge was a misdemeanor or a felony. Under the bill, an individual would now be charged with a second misdemeanor for carrying a concealed weapon, if the original charge was for a misdemeanor. Furthermore, the bill would cause an individual charged with a felony to receive a second felony charge for a carrying a concealed weapon. 1:49:05 PM MS. OSTNES further explained that on pages 3 and 5, HB 225 now includes AS 47.12.080, which pertains to juveniles. Juveniles are not released on bail, but on "condition of release". The inclusion of AS 47.12.080 would mean a juvenile is now subject to the same conditions as an adult. Finally, in Section 3, Version M, AS 12.30.018, was removed. This removed the mandatory aspect, as requested by Representative Coghill and the NRA. It is now the judge's discretion, she pointed out. [Version K, which was now before the committee, does not include AS 12.30.018 in Section 3.] 1:51:02 PM MS. OSTNES related that Amendment 1 would clarify that knowingly possessing a firearm that is concealed on the person while the person is on release under AS 12.30.020-12.30.040 is in violation of a condition imposed by the court. CHAIR RAMRAS made a motion to adopt Amendment 1, labeled 25- LS0710\K.1, Luckhaupt, 5/3/07, which read: Page 3, line 15, following "(A)": Insert "in violation of a condition imposed by the court" Page 5, line 3, following "(A)": Insert "in violation of a condition imposed by the court" There being no objection, Amendment 1 was adopted. CHAIR RAMRAS asked the committee to review Version K with Amendment 1 and then, seek the point of view of Captain Cobb and Brian Judy. MS. OSTNES, in response to comments and questions, reiterated that this amendment is a clarification at the request of the NRA and that it be inserted on page 3. 1:52:41 PM REPRESENTATIVE HOLMES asked whether the language inserted on page 3, line 15, subparagraph (A), should also be added to subparagraph (B). MS. CARPENETI responded that it was unnecessary. 1:53:09 PM CHAIR RAMRAS related his understanding that the bill sponsor does not want to violate the "right to bear arms." 1:54:16 PM BRIAN JUDY, Senior State Liaison, National Rifle Association - Institute for Legislative Action (NRA-ILA), shared the NRA's concerns with Version K including the automatic penalty. Amendment 1 addresses that concern whereby the court maintains discretion. The second concern pertains to the felony. The NRA believes it is not appropriate to subject a person to a felony simply for being accused of a prior offense. Therefore, he suggested including language stating that if the underlying felony is dismissed, then the subsequent felony would also be dismissed. CHAIR RAMRAS added this was the same concern as Representative Coghill. REPRESENTATIVE LYNN opined that regardless of whether the individual was found not guilty of the original offense, he still "spit in the face of the court", by violating the condition of bail. He asked if this is a separate issue. MR. JUDY responded this would be a violation of the order of the court. Existing law makes this a class A misdemeanor, if the underlying charge is a felony. The NRA's concern is that the proposed law would make the current misdemeanor a felony. He referred to an example from his letter to the committee. Even though someone may know his/her own innocence, he/she may violate the order of the court for personal protection. Even if he/she is found innocent, he/she can still lose the right to bear arms because of the subsequent felony charge. The felony charge does not seem to be appropriate, he opined. 1:58:37 PM MS. CARPENETI acknowledged NRA's concern, but pointed out that the concept of going back and making a person innocent would not work. There has already been a probable cause determination that the person should be held to answer for charges. This is all discretionary with the court, she noted. The court has made a determination that for the safety of the community, this person should not carry concealed. Then, to say that the person can make that decision on his/her own is something the court cannot condone. CHAIR RAMRAS commented that he agrees with both Ms. Carpeneti and Mr. Judy. This difficulty means the bill is not ready to pass out of the committee, he related. 2:00:23 PM GARDNER COBB, Captain, Anchorage Police Department (APD), offered that the problems, specifically the levels of firearm violence, in Anchorage are different than those in other communities. The Anchorage Police Department has probable cause and evidence before an arrest is made. He related his belief that law abiding citizens have the right to carry arms. By going through a magistrate, the district attorney, or a Grand Jury, the police department operates in a system of checks and balances for probable cause. A law-abiding citizen would not disobey a judge's direct order. Raising this to a felony is a positive step. However, he said, there is still a lot more that can be done to assist law enforcement in doing their job. 2:03:08 PM CHAIR RAMRAS asked whether passing the bill will actually accomplish anything. MR. COBB responded that the APD, in a recent operation, arrested more than 50 people and recovered 24 guns. He did not think this bill would make a widespread big difference. The APD needs to identify the violent offenders, and put them in jail. CHAIR RAMRAS said he understands how this affects guilty people, but he does not know how this will affect innocent people, who are then subsequently found guilty of the secondary offense. 2:05:38 PM REPRESENTATIVE DAHLSTROM offered that she is supportive of any law that "gets the bad guy", but she was worried about "the unintended consequences." If she was in the position of having to protect her family, the law would not stop her from carrying concealed, she said. MS. OSTNES highlighted that the law only applies to concealed weapons, not visible weapons. 2:08:35 PM MR. JUDY indicated Version K still raises a concern with the NRA due to the potential felony charge for a person only accused of an offense. The NRA is concerned for the rights of those who have only been accused, but not convicted, of a prior offense. 2:09:39 PM REPRESENTATIVE LYNN said although he understood the concern, still he was not able to condone "spitting in the eye of the court." Therefore, he questioned whether there might be a middle ground, such that, a person found innocent would have the subsequent carrying concealed lowered to a misdemeanor. MS. CARPENETI expressed concern with having a provision in law dismissing a crime if an individual were found innocent of the underlying crime, even though there was a probable cause indictment with the court finding that individual dangerous. REPRESENTATIVE LYNN clarified that he did not want the charge dismissed, merely lowered to a misdemeanor. 2:11:11 PM REPRESENTATIVE GRUENBERG offered an analogy illustrating that point in time when one is charged with an underlying crime, it's not known whether he/she will be found guilty of the original crime. Referring to [Perkins and Boyce's Cases and Materials on Criminal Law and Procedure], he compared the case at hand to the law on escape. The committee took an at-ease from 2:12 p.m. to 2:14 p.m. 2:14:40 PM [Chair Ramras passed the gavel to Vice Chair Dahlstrom.] REPRESENTATIVE GRUENBERG read from page 506 of [Perkins and Boyce's Cases and Materials on Criminal Law and Procedure],as follows, "... On the other hand the fact that a prisoner is innocent of the offense, for which he was arrested, is no excuse for his unpermitted departure from legal custody." He offered that this is general policy; the reason being the law doesn't permit people to take the law into their own hands. A person is not being penalized for being under indictment; but rather for violating a court order. 2:17:59 PM [Vice Chair Dahlstrom returned the gavel to Chair Ramras.] MR. COBB, in agreement with Representative Gruenberg's legal analogy, stated he was sure that many of those arrested with a firearm were told by the judge not to carry a firearm; but many in the gang culture lifestyle were in the habit of not obeying what people in authority tell them. 2:18:39 PM CHAIR RAMRAS set HB 225 aside, to allow the sponsor to reconcile these two unique points of view, with regard to the charge of carrying concealed. The DOL has stated that if one is charged with a felony or a misdemeanor, then the subsequent charge should be maintained regardless of the final ruling on the initial charge. The NRA believes, however, that if the initial charge is dropped, then the subsequent charge should be dropped, as well. REPRESENTATIVE GRUENBERG professed his understanding that the supreme court had addressed this issue, and supported the DOL position. 2:19:49 PM MS. CARPENETI offered to research the ruling Representative Gruenberg described. [HB 225 was held over.]
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