Legislature(2007 - 2008)CAPITOL 120
02/01/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB286 | |
| HB281 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 237 | TELECONFERENCED | |
| *+ | HB 286 | TELECONFERENCED | |
| *+ | HB 281 | TELECONFERENCED | |
HB 286 - IMPERSONATING A PUBLIC SERVANT 1:10:10 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 286, "An Act relating to impersonating a public servant." REPRESENTATIVE DAHLSTROM, speaking as the sponsor of HB 286, explained that the bill will increase the penalty for unlawfully impersonating a peace officer to a class C felony; currently, impersonating a public servant, including a peace officer, is a [class B] misdemeanor. In today's society, she observed, there are those who use such deception as part of a criminal act, luring unsuspecting victims into a false sense of security. Intentionally misleading people in this way should have a more severe penalty than is currently provided, she opined, and the bill adds teeth to existing law. She also indicated that her hope is that this increased penalty will also serve as a deterrent to those who would put the lives and safety of people in jeopardy by pretending to be a peace officer. 1:12:18 PM JENNIFER BAXTER, Staff to Representative Nancy Dahlstrom, Alaska State Legislature, relayed on behalf of Representative Dahlstrom, sponsor, that HB 286 adds to existing law another crime, specifically that of impersonating a public servant in the first degree - pretending to be a peace officer. In response to questions, she said that the current penalty [for impersonating a public servant] is a class B misdemeanor; that misdemeanor crimes don't generally subject the perpetrator to [much if any] jail time unless he/she has a significant a criminal history; and that the reason for providing a penalty of a class C felony is that Legislative Legal and Research Services indicated that that would be the appropriate next level of penalty. REPRESENTATIVE COGHILL, acknowledging that someone could falsely use a peace officer's position of authority to gain access to potential victims, noted that under the bill, impersonating a peace officer would be a felony even if nothing bad resulted from that behavior. REPRESENTATIVE DAHLSTROM offered her belief that passage of the bill will allow law enforcement officials to immediately incarcerate a person who is impersonating a peace officer and seize the vehicle and/or other equipment he/she is using to further that impersonation. REPRESENTATIVE COGHILL said he is questioning why they should make certain behavior a felony if that behavior doesn't result in something bad occurring. REPRESENTATIVE HOLMES, noting that AS 11.56.830(a) says in part, "the person pretends to be a public servant and does any act in that capacity", questioned what "any act in that capacity" would entail. She surmised that the bill is not intended to apply to someone who dresses up as a police officer on Halloween. 1:17:16 PM CHAIR RAMRAS posited that the existing statute could apply to someone who [falsely] claims to be working for the State of Alaska. MS. BAXTER, with regard to the issue of people dressing up as police officers on Halloween, confirmed that the bill would not apply in those situations because those people are not acting in the capacity of peace officers. With regard to the issue of making it a class C felony to impersonate a peace officer, she said that the goal is to target those who intend to cause harm by impersonating law enforcement personnel specifically, and mentioned that "peace officer" is defined [in AS 11.81.900] as: (44) "peace officer" means a public servant vested by law with a duty to maintain public order or to make arrests, whether the duty extends to all offenses or is limited to a specific class of offenses or offenders; MS. BAXTER offered her understanding that some specific examples of persons impersonating peace officers will be provided, including examples in which no harm had yet been caused. She too offered her hope that passage of HB 286 will act as a deterrent to those considering impersonating a peace officer. 1:20:24 PM GARY "ROB" COX, President, Public Safety Employees Association, Inc. (PSEA); State Trooper, B Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), indicated that the PSEA appreciates the introduction of HB 286. He surmised that most people have heard of incidents wherein someone has impersonated a peace officer, and that those people have felt some form of shock and anguish upon hearing of those incidents regardless of their outcome. He said he knows of two such impersonators in the Matanuska-Susitna (MAT-SU) valley alone, and of others elsewhere. Currently, the crime of impersonating a peace officer is merely a class B misdemeanor, which, he remarked, is slightly more serious than a traffic violation and is seldom prosecuted. He noted that although none of the Alaska cases that he is aware of have yet resulted in the injury, death, or sexual assault of the impersonator's victims, those victims with whom he has spoken all relayed that they experienced extreme fear. MR. COX offered his belief that the Alaska cases seem to have been motivated by "ego, experimentation, or some twisted sense of 'fun.'" Because real law enforcement officers have been swift to apprehend the impersonators in the Alaska cases, none of those cases had ugly outcomes. However, other states have not been so fortunate; the impersonation of a peace officer in those states has resulted in real law enforcement officers having to investigate the ensuing murder, assault, and rape crimes that those impersonators have perpetrated. The most recent perpetrator in the Mat-Su valley was apprehended a few weeks ago. Both state and local police had been searching for this individual for some time, and he had once previously been charged with impersonating a public servant but had never been prosecuted for or convicted of that crime. MR. COX said that even though that individual had flashed his vehicle's red and blue lights at citizens, the trooper didn't arrest the individual for the crime of impersonating a public servant because he believed that it was not an arrestable offense. Fortunately, the individual had also been drinking, and so he was arrested for driving under the influence (DUI) and his vehicle and "peace officer equipment" was impounded "before he could do anything really ugly." Mr. Cox characterized HB 286 as being good for both Alaska and law enforcement agencies because it increases the penalty for impersonating a peace officer to a felony; the bill will enable law enforcement officers to, with probable cause, stop and arrest such impersonators, and will strongly discourage such impersonations "by would-be pranksters or egomaniacs." MR. COX, in conclusion, opined that HB 286 enhances mutual trust and demonstrates real commitment to the safety of Alaskans and the state's law enforcement officers. The PSEA and law enforcement officers, he relayed, strongly encourage passage of the bill. 1:25:13 PM MR. COX, in response to questions, said that although an exact police/trooper uniform is difficult to come by, perpetrators of this crime don't find it necessary to dress up in such a uniform because everyone is familiar with the fact that both off-duty and plain-cloths officers make traffic stops and otherwise contact the public. The aforementioned individual, in fact, actually told a real police officer that he was merely an off- duty state trooper, and his car looked like an unmarked police car. Furthermore, anybody can purchase the emergency lights and radio equipment used by real law enforcement, and the aforementioned individual had done so, though he later put that equipment up for sale on "E-Bay." Mr. Cox surmised that with the car and the equipment, it would have been very difficult, if not impossible, for someone to differentiate the impersonator from an authentic peace officer. REPRESENTATIVE SAMUELS asked whether the bill would also make impersonating a peace officer over the telephone a class C felony. MR. COX said that even over the phone, when he tells someone he is a trooper, that person automatically trusts him and is much more open to providing personal information such as date of birth and social security number. CHAIR RAMRAS surmised that under the bill, impersonating a public servant other than a peace officer would remain a class B misdemeanor, and impersonating a peace officer would become a class C felony. MS. BAXTER concurred; specifically, impersonating a peace officer would be impersonating a public servant in the first degree, [and impersonating any other type of public servant would be impersonating a public servant in the second degree]. CHAIR RAMRAS opined that impersonating a peace officer over the phone doesn't pose the same danger or instill the same sense of fear as doing so in person. REPRESENTATIVE DAHLSTROM disagreed, and pointed out that if either she or her children were at home by themselves and they received a call from someone claiming to be a peace officer [but suspected that to be a false claim], that would be very disturbing, especially if that person then started threatening them. MR. COX pointed out that with the proliferation of cellular telephones, the impersonator could actually be calling the victim right from his/her own driveway; just because the impersonator is on the phone doesn't diminish the danger or the threat that he/she poses. CHAIR RAMRAS noted that a person could impersonate a peace officer over the Internet as well. REPRESENTATIVE COGHILL asked whether the DOL would treat the crime of impersonating a public servant in the first degree the same way it treats other class C felonies. He noted that the term "public servant" refers to many people other than peace officers. 1:35:08 PM RICK SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), offered that although in general there are not provisions of law wherein a particular conduct jumps from a class B misdemeanor to a class C felony, that's not to say that making a crime a class C felony is inappropriate, because that's simply a public policy question regarding how serious the offense is. Mr. Svobodny said he takes some exception to the statement by Mr. Cox that class B misdemeanors don't get prosecuted; rather, perhaps it's simply that class B misdemeanors aren't being submitted for prosecution by law enforcement officers because those offenses aren't perceived as being serious. Furthermore, he relayed, he would like to hear about district attorney offices that aren't prosecuting cases simply based of the classification the legislature chose for a particular offense. MR. SVOBODNY explained that the difference between a class C felony and a class B misdemeanor is that the maximum penalty for the latter is 90 days in jail, whereas the maximum penalty for the former is five years in jail. However, that's not to say that those are the sentences a person will receive. In response to a question, he explained that a person convicted of a felony loses the right to carry a concealable firearm for a period of time, and has some other restrictions placed on him/her with regard to voting rights and jury duty. Furthermore, outside of any legal impediments, society imposes other impediments to convicted felons such as difficulty in obtaining bonding or employment. REPRESENTATIVE COGHILL observed that some felons can also be precluded from working with vulnerable people. He said he wants to ensure that the proposed increase in penalty is truly warranted and will only be applied to those who actually do pose a danger to society. 1:39:54 PM MR. SVOBODNY, in response to a question, explained that current law makes no distinction between impersonating [a public servant] remotely - via any type of device - and doing it in person; impersonating a police officer, again, whether in person or over the telephone [or Internet], is currently only a class B misdemeanor. Furthermore, people's imaginations are fertile and there could be circumstances, he surmised, wherein a victim could be substantially more afraid if the impersonation is done over the phone as opposed to in person. CHAIR RAMRAS questioned whether the bill would make a felon out of someone who calls up his/her friend and pretends to be a trooper or police officer simply as a joke. MR. SVOBODNY explained that the culpable mental state which applies under the bill is that one must knowingly impersonate a peace officer and must knowingly engage in an act - in the aforementioned hypothetical example, the act is the verbal communication - so although the person has technically violated the law, under the American system of justice, prosecutors have the discretion to determine that a crime wasn't really committed in such a case since there was no intent to cause harm. However, because current statute doesn't specify that there be an intent to harm, the actions in the aforementioned example do constitute a crime. He remarked that in 1978, when the legislature passed the current statute, there was a very good reason, particularly for a class B misdemeanor, for not requiring intent: the behavior of impersonating a public servant scares people. For example, he added, if his wife received a phone call from somebody who said he/she works for City & Borough of Juneau (CBJ) and needs to know whether the electrical meter was located inside the house - whether the person was playing around or not - that would scare her if she ultimately found out that that person was not who he/she was pretending to be. CHAIR RAMRAS said he is simply questioning whether such behavior rises to the level of a class C felony. REPRESENTATIVE DAHLSTROM, referring to Chair Ramras's hypothetical example, pointed out that such a person would never even come to the attention of police and prosecutors unless his/her friend filed a complaint about the behavior, whereas if she were to receive a call from someone claiming to be a peace officer and she [suspected that that claim wasn't true], she would call the police because she would assume that if the person has her phone number, he/she probably also knows her address, what she looks like, and perhaps even what her schedule is. MR. SVOBODNY concurred, adding that even though it is a crime to punch another person, for example, no one reports that his/her four-year-old child hit an older sibling. Similarly, people who are simply joking around with each other over the phone are not going to be dealt with via criminal law. CHAIR RAMRAS again questioned whether impersonating a peace officer over the phone rises to the level of a class C felony, or whether such behavior should remain a class B misdemeanor. MR. SVOBODNY again said he could conceive of a situation where impersonating a peace officer over the phone could be more frightening for the victim than if it were done in person. Though, as a general rule, he acknowledged, distance between parties lessens the fear. With regard to Representative Dahlstrom's comment, he added, if the person calling her doesn't yet have her address, he/she can easily obtain it over the Internet - that's a very frightening thing to a lot of people in this country. 1:50:35 PM REPRESENTATIVE HOLMES suggested that given that there is no mental state required for the class B misdemeanor provided for under current law, perhaps there needs to be a higher barrier when raising the behavior to class C felony. MR. SVOBODNY suggested that there should be three levels of this offense: a class B misdemeanor for impersonating a public servant; a class A misdemeanor for impersonating a public servant with the intent to do harm; and a class C felony when impersonating a peace officer with the intent to do harm. He added: I think it's got to be a very scary thing if somebody comes to your door, knocks on the door, and wants to get access to your house under the ruse of being a building inspector. And that may well be more frightening than somebody calling on the phone and saying they're from the Benevolent Order of Police and please contribute $100. ... They're both really intending to do harm ... but it seems to me there ought to be maybe a gradation of what happens here. REPRESENTATIVE HOLMES again asked what the phrase, "and does any act in that capacity" would entail. MR. SVOBODNY said that since the word, "act" is not yet defined in statute, one would have to use the dictionary definition of what an "act" entails. So for the crime of terroristic threatening, for example, repeated acts are required, and the appellate courts have indicated that a communication is an act. Therefore, he surmised, to communicate a certain piece of information would constitute an act - a verbal act. With regard to a person dressing up as a police officer on Halloween, he posited that in order for the bill to apply to such a person, he/she would have to commit an act in the capacity of a peace officer, such as attempting to restrain or arrest someone. 1:54:53 PM REPRESENTATIVE DAHLSTROM observed that sometimes an act doesn't have to be an overt act; someone dressed up as a peace officer, or driving a vehicle that looks like a peace officer's vehicle can elicit certain reactions from people even if no verbal exchange takes place. REPRESENTATIVE COGHILL said he tends to agree with Mr. Svobodny's suggestion regarding having three levels of crime. Many public servants have certain authority over others, such as employees of the Office of Children's Services (OCS) and building inspectors, and sometimes individuals have posed as such employees in order to obtain information. Furthermore, when being directed to pull over by a vehicle that has flashing lights, a person may not be aware that he/she is about to find himself/herself in a dangerous situation. With regard to playing pranks by impersonating someone, he acknowledged that as a teenager, he and his friends perhaps did some things they shouldn't have because they didn't realize the gravity of their actions, and so he would not want to saddle such a person with a class C felony. However, some people really are bad actors and they intend to do bad things to others by using the position of trust that society has generally [granted], and so he doesn't mind, he relayed, making those bad actors felons, because, for him, such behavior rises to that level. REPRESENTATIVE DAHLSTROM, in response to a comment that the term "public servant" is broad, pointed out that the crime of impersonating a public servant is already addressed via existing statute and won't be changed by the bill. REPRESENTATIVE COGHILL indicated that his concern is that the proposed increase in penalty could be applied inappropriately, though he acknowledged that there is a safeguard in that one must first be convicted. He said he is questioning whether impersonating some other public servants should also rise to the level of a felony, particularly given that in the past, for example, the legislature has discussed the issue of whether to let employees of the then-Child Support Enforcement Division (CSED) carry handguns while performing their duties. 2:03:01 PM CHAIR RAMRAS expressed interest in Mr. Svobodny's suggestion. MR. SVOBODNY reiterated his suggestion, and noted that in a recent movie, someone with bad intentions impersonated a peace officer in order to kill another person. Although such behavior is not common, it is not unheard of for people to impersonate a peace officer in order to gain some type of advantage. REPRESENTATIVE HOLMES indicated that she would be more comfortable if the bill included some sort of intent-to-do-harm language, because she wants to ensure that the bill only applies to actual bad actors. REPRESENTATIVE SAMUELS pointed out, however, that if such language is included for the crime of impersonating a peace officer, then in situations like the one described by Mr. Cox - where the person acquired a vehicle [resembling an unmarked police car] and lights and a siren - the prosecution would then also have to prove that the person had the intent to do harm. Representative Samuels said that for such people, he is satisfied with the bill as it is currently written, because why else would one go through the trouble of obtaining such equipment and then attempting to pull people over if not to perpetrate a crime. He indicated, though, that he would be amenable to the change suggested by Mr. Svobodny regarding impersonating other types of public servants. Representative Samuels offered his belief that the bill would never be applied in situations where friends are playing jokes on each other. MR. SVOBODNY, in response to a question, offered his belief that the definition of "public servant" is sufficiently broad, and would apply to those impersonating the types of public servants Representative Coghill mentioned, adding that it would not be a defense for someone to claim that the position he/she was impersonating doesn't exist. REPRESENTATIVE COGHILL, in response to a question, reiterated his concern that perhaps impersonating a public servant other than a peace officer also ought to rise to the level of a felony. 2:09:27 PM REPRESENTATIVE DAHLSTROM said she is not intending for the bill to address the impersonation of public servants other than peace officers. MR. COX also concurred that the bill would not apply in situations where friends are playing pranks on each other since one of the parties would first have to file a complaint and the responding law enforcement officer would still have the discretion of whether to pursue the issue. With regard to adding language requiring that the impersonator have the intention of doing harm, he opined that that would take the threshold too high - a police officer would be unable to stop an impersonator before he/she actually injures or kills someone. He suggested that perhaps the bill could be changed to say something along the lines of, "exercises or attempts to exercise official authority"; with such a change, the impersonator's actions would demonstrate intent. He characterized an impersonator's attempts to pull someone over as a serious violation of a person's rights. MR. COX, with regard to impersonating a peace officer over the phone, offered his believe that such behavior does rise to the level of a felony, particularly given that the crime of assault in the third degree, which in part addresses the behavior of making repeated threats to cause death or injury, is a class C felony offense as long as it causes the fear in the victim that that really will happen. With regard to juvenile pranks, he opined that it would be pretty easy for a citizen to determine that a youth isn't really a peace officer. 2:14:14 PM JEFFREY LANDVATTER, Public Safety Employees Association, Inc. (PSEA); State Trooper, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), opined that HB 286 is fundamental to the foundation of good policing. Police are given a high level of trust and training, and someone falsely presenting himself/herself as a peace officer breaks down the public trust, and makes it very difficult for law enforcement officers to do their job. MR. SVOBODNY, in response to a question, opined that Mr. Cox's suggestion would have the same problem with proving intent. Currently one must commit an act, which includes a pretty broad range of conduct; he then acknowledged that including intent-to- do-harm language, as he'd suggested earlier, would also present a proof problem. He said he agrees with the officers: the oath that they are required to take in order to become peace officers is designed to set them up as examples of people that one can trust, and one does things for a police officer, because he/she appears to be a police officer, that one wouldn't do for someone else. This does create more dangerous situations, both for police officers in the normal course of their duty and for the public when responding to someone they think is a police officer but isn't. MR. SVOBODNY suggested instead: keep the current crime of impersonating a public servant a class B misdemeanor; make the crime of impersonating a public servant with the intent to gain access to a dwelling or the intent to do harm a class A misdemeanor; and make impersonating a peace officer a class C felony as the bill currently proposes. REPRESENTATIVE COGHILL said he likes that suggestion, but is not sure of the practical implications. REPRESENTATIVE SAMUELS noted that Anchorage Municipal Code says: 8.30.070 Impersonation of public officer. A. A person commits the crime of impersonation of a public officer if the person knowingly and falsely represents himself to be a public officer and in such assumed character: 1. Obtains money, property, or other thing of value, or 2. Arrests or detains, threatens to arrest or detain, or otherwise threatens any person; or 3. Searches a person or property; or 4. Obtain or requires the assistance of another in any matter pertaining to the duties of a public officer. B. As used in this section, a public officer includes peace officers, firemen, paramedics, magistrates, judges, municipal attorneys and prosecutors, municipal inspectors, officials, or clerks, but is not limited to them. C. Violation of this section shall, upon conviction, be punished by a fine of not more than $2,000.00 or imprisonment for not more than six months, or both such fine and imprisonment. REPRESENTATIVE SAMUELS acknowledged, though, that the problem with "spelling it out" is that then the language might not apply in every case that it should. MR. SVOBODNY concurred. REPRESENTATIVE SAMUELS indicated that he would be in favor of Mr. Svobodny's suggestion regarding making public-servant impersonators seeking access into someone's dwelling a class A misdemeanor. REPRESENTATIVE HOLMES surmised that all members are in support of the intent of HB 286, and acknowledged that it addresses a serious problem. Referring to the issue of a perpetrator's mental state, she asked what other felonies might compare. MR. SVOBODNY offered that the crimes of theft of $500 or more; shoplifting of $500 or more; DUI; bootlegging; causing somebody to fear serious physical injury by means of a dangerous instrument - for example, pounding a bat against a wall right next to somebody; and check forgery are all class C felonies. REPRESENTATIVE DAHLSTROM said her preference is to move forward with the bill as it is currently written, rather than altering it to address some of the other issues that have been raised. CHAIR RAMRAS closed public testimony on HB 286. REPRESENTATIVE COGHILL opined that anytime the legislature makes a particular crime a felony, the justification for doing so needs to be vetted. He indicated that he is satisfied that the crime of impersonating a peace officer does rise to the level of a felony. 2:25:51 PM REPRESENTATIVE DAHLSTROM moved to report HB 286 out of committee with individual recommendations [and the accompanying fiscal notes]. There being no objection, HB 286 was reported from the House Judiciary Standing Committee.
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