Legislature(2009 - 2010)CAPITOL 120
03/25/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB60 | |
| HB408 | |
| HB251 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 251 | TELECONFERENCED | |
| + | SB 60 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 408 | TELECONFERENCED | |
HB 408 - MISCONDUCT INVOLVING WEAPONS
1:50:57 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 408, "An Act relating to misconduct involving
weapons."
1:51:46 PM
CHAIR RAMRAS [moved to adopt] the committee substitute (CS) for
HB 408, Version 26-LS1459\K, Luckhaupt, 3/24/10, as a work
draft. There being no objection, Version K was before the
committee.
1:52:10 PM
JANE PIERSON, Staff, Representative Jay Ramras, Alaska State
Legislature, presented HB 408 on behalf of the House Judiciary
Standing Committee, which is chaired by Representative Ramras.
She directed attention to the following changes: The phrase,
"do not apply to a person if", has been added in Section 1, on
page 1, line 6, and page 2, line 4; and in Section 2, AS
11.61.200(a)(12) was added to those statutes to be repealed.
She said Version K would return full gun rights to those with
pardons, set-asides, or to those who have gone 10 years since
being let off from a felony.
CHAIR RAMRAS reviewed that the committee had discussed during a
prior hearing that unless there is a perfect alignment between
state and federal law, then the federal law preempts people from
getting their full rights back. He asked Ms. Pierson if that is
the gist of the alignment that the bill would reestablish.
MS. PIERSON answered that is correct.
1:53:40 PM
BRIAN JUDY, Lobbyist, National Rifle Association of America
(NRA), urged support of HB 408. He attempted to assure the
committee that HB 408 would not restore firearms to felons. He
said it is already the policy of the State of Alaska to restore
firearm rights to former offenders. The right to possess rifles
and shotguns is restored upon their release from incarceration,
while the right to possess handguns is restored if the person
receives a pardon, set-aside, or "by operation of law after 10
years from their unconditional discharge." With a person's
right to possess a handgun comes his/her right to carry it
openly anywhere in the state. However, carrying a concealed
handgun after a pardon, set-aside, or the 10-year period is
limited to home property and lawful outdoor activity. He noted
that 95 percent or more of a person's rights are restored by the
state. Currently the only real restriction in current law is
that a person who has had his/her rights restored cannot cover a
handgun. He noted that a former offender, upon his/her
unconditional discharge is also given back voting rights, jury
rights, and the right to hold public office.
MR. JUDY said that because of a technical and complicated
interaction between state and federal law and a U.S. Supreme
Court decision, Caron v. United States, persons who have had all
these rights restored by the State of Alaska are still not
recognized as having any rights restored for the purpose of
federal law, and they can be prosecuted under federal law. He
stated that the U.S. Supreme Court, in the Caron v. United
States decision, held that an all or nothing test must be
applied, and that any state's weapons limitation activates the
Uniform Federal ban on possessing any firearms at all. In other
words, unless Alaska restores 100 percent of a person's rights
related to bearing arms, and treats that person like any other
law abiding citizen who never lost rights, then under the
federal law, the person has no rights. Because the State of
Alaska imposes this slight restriction, under federal law, these
individuals have no firearms rights whatsoever, he clarified.
The intent of the bill is to facilitate the implementation of
existing state policy and to allow persons whose rights have
been restored by the state to exercise those rights and not have
them extinguished by the federal government - to create an
alignment between state and federal law.
1:56:44 PM
MR. JUDY said there are two existing limitations on persons who
have otherwise had their rights to possess firearms restored
that are not imposed on persons who have never lost their
rights. The first relates to a person's right to carry
concealed, which is in AS 11.61.200(g)(2) and would be repealed
by HB 408. The second limitation is that a person whose right
to bear firearms has been otherwise restored would be in a
position of having to raise an affirmative defense to a charge
of either possessing a concealable firearm or carrying a firearm
concealed. Mr. Judy said the bill proposes to repeal the
prohibition on carrying a concealed weapon, because in effect
that is contained within the prohibition on possessing a
concealable firearm. In other words, he clarified, a person
cannot carry a concealed weapon without already possessing that
weapon. Repealing AS 11.61.200(a)(12) and (f) and (g) would
leave just the prohibition on possessing a firearm capable of
being concealed. The bill would further propose to "change the
affirmative defend for that crime to an exception." By
alleviating those two limitations and treating persons whose
rights have been restored in the same manner as persons who have
never lost their rights, HB 408 would solve the problem created
by the aforementioned U.S. Supreme Court decision.
MR. JUDY, in conclusion, offered the NRA's hope that legislators
can move beyond the perceived stigma of "giving firearms to
felons," which is not being done here, and realize the
legitimacy of allowing persons who have long ago paid their debt
to society to finally attain the restoration of their rights,
which are already provided by the State of Alaska but
extinguished because of the interaction between state and
federal law, and the U.S. Supreme Court decision.
CHAIR RAMRAS mentioned that something similar was accomplished
in the realm of a "minor consuming" bill, only in that case, the
state was out of alignment with the federal government.
MR. JUDY confirmed that HB 408 would create an alignment between
the state and federal government.
2:01:33 PM
CHAIR RAMRAS noted that Representative Stoltze had brought up a
concern regarding reciprocity with eight other states.
MR. JUDY opined that there should not be a concern because there
are already differences between various states' statutes related
to this issue, but many states already recognize all other
states' permits. The only potential problem, he surmised, may
be where a state has conditional recognition, in which that
state will recognize another state whose laws are comparable to
its own. He explained that those states may have a problem if
their issuance rules do not permit a person who has been
convicted of a felony [to get a gun permit]. He indicated that
there are eight such states, including Arizona and Montana;
however, he noted that Montana will issue permits to those
people whose rights have been restored. The other seven states
that fall into the two criteria - will not issue a permit for a
felony and only recognize states with comparable laws -
currently recognize Montana's permits. He concluded, "So, the
other state ... that does what we're proposing to do here is
recognized by virtually every state out there, including those
states that have conditional recognition."
2:04:17 PM
REPRESENTATIVE HERRON asked whether, under HB 408, an Alaska
State Trooper or Alaska certified local police officer would
"follow state law ... under these circumstances." Further, he
asked if, under 408, a federal law enforcement officer could
approach someone in the state and arrest them for violating the
federal law.
MR. JUDY said the point of the proposed legislation is to align
Alaska's law with federal law. Under HB 408, Alaska would
recognize 100 percent of a person's rights regarding arms, thus,
the federal government would completely recognize those rights.
CHAIR RAMRAS disclosed that Bill Satterberg has done legal work
for him and is a friend.
2:06:20 PM
WILLIAM R. SATTERBERG, JR., Attorney at Law, Satterberg Law
Offices, Fairbanks, Alaska, testifying on behalf of himself,
told the committee he has worked as an attorney going on 34
years, and he related that 33-40 percent of his work involves
criminal defense, while the rest is civil defense. He said last
spring a client plead no contest to a felony suspended
imposition of sentence (SIS). Regarding the term SIS, he
explained that if a person has committed a crime, there is a
mechanism available in criminal statute that allows the person's
conviction to be set aside if he/she complies with the court's
conditions of probation. He explained this means that although
the person was convicted, the sentence was never imposed;
therefore, the person is not a convicted felon. He said that
particular mechanism has been used for years, and it is
beneficial in restoring rights to those who committed non-
violent crimes.
MR. SATTERBERG said the aforementioned client, after
successfully completing his probationary period, went to pick up
his weapons, which had been held for safekeeping by the Alaska
State Troopers, and he was told the Alaska State Troopers could
not return the weapons to him because he was a convicted felon.
Mr. Satterberg said the man lives in the Bush and relies heavily
on his weapons for subsistence living and protection, but was
told the state would be breaking federal law if it gave his
weapons back to him.
MR. SATTERBERG said there are many people in Alaska who have
committed drug offenses, for example, and have paid their debt
to society, but cannot get their weapon rights back because of
an interpretation that the Department of Law is putting on "the
statute that began last April." He mentioned letters he had
written to Attorney General Dan Sullivan and Deputy Attorney
General Richard Svodony [included in the committee packet]
explaining why the interpretation of the federal law was wrong;
however, he said because of a bureaucratic roadblock nothing of
note happened as a result of the letters. He stated that
[Version K] solves the problem, and he said he wholeheartedly
supports it. He expressed his hope that there will be
reciprocity regarding concealed carry, and he revealed that he
is a concealed carry permit holder. However, he said even if
there is no reciprocity with the 7 other states previously
referenced, there are still far more citizens in Alaska that
need to have their firearm rights returned to them.
2:10:56 PM
MR. SATTERBERG, in response to Representative Gatto, clarified
that an SIS is "a legal fiction of sorts." He said the person
is technically convicted for the period of time that the
probationary period is outstanding, but since a sentence or
judgment of conviction is never imposed, the person is never
really convicted. In response to a follow-up question, he
clarified that the SIS is not the judgment; the judgment is
imposed at sentencing, but ceases to exist at the conclusion of
the SIS period. He said there are some people who should never
have their rights restored, but he indicated that SIS people are
not among them.
2:13:08 PM
RON STERLING had his testimony read by Wayne Anthony Ross,
Attorney at Law, as follows:
My name is Ron Sterling. A few years ago I applied to
buy two firearms and was denied by the mixed
background check. This denial stems from a legal
problem I had when I was 18. My younger brother was
found by an Alaska State Trooper in possession of
illegal drugs and told the trooper that he got them
from my room. My father allowed the Trooper to search
my bedroom, where he found one ounce of marijuana and
a few pills. The Trooper stated that I was selling
drugs, but I told him that I was not selling drugs.
My dad told me not to lie to the Trooper. This went
on for a long period of time until I finally gave up
that I would agree to whatever they wanted. I was
arrested many months later and charged with possession
with intent to sell. I retained an attorney who, even
though I told him I wasn't guilty, at trial persuaded
me to plead guilty. He told me I would get probation,
and that at some point my record would be clean. This
happened with the State of Alaska.
I've gone to the State Trooper headquarters on Tudor
Road and gotten a background check to coach high
school and American League in baseball at Service High
School. My background and check from the State of
Alaska shows no criminal record. After being denied
by the next people, I retained the law firm of Ross &
Miner to contest my case. My attorney filed to have
my record expunged. This was approved without being
contested. After this court approval, I again applied
and was again denied the right to purchase firearms.
The NICS [National Instant Criminal Background Check
System] stated that it is perfectly legal for me to
own, possess, or use firearms for any legal purpose,
but because the State of Alaska didn't state that it
was okay for me to purchase firearms, they're going to
continue to deny me the right to purchase any
firearms. This is incredibly twisted logic, as it is
legal for me to have a firearm, but illegal for me to
purchase one.
I am 58 years old. I lived in Soldotna for 11 years;
sold a home; bought and paid for a home in Anchorage
where I currently live with my wife of 26 years. We
have raised two sons and a daughter. I've worked the
same job for 36 years, paid my taxes, and voted in
every election. I work with the football staff at
Soldotna High School for five years and was an
assistant coach for Soldotna High School basketball
team for three years. I also coached for Soldotna
Little League for five years, (indisc.) Rabbits for
five years, and Service High School and American
League in baseball for two years. I served on the
executive board of the Anchorage Independent
Longshoremen Union for 12 years. By any measure I am
a good citizen and to be in a position where the
federal government can continue to penalize me 40
years after the fact, using twisted Alice In
Wonderland logic, is a folly. I would certainly
appreciate any and all help that you can give me in
this manner.
Sincerely, Ron Sterling
2:16:40 PM
WAYNE ANTHONY ROSS, Attorney at Law, Ross & Miner, Inc.,
estimated that in his 42 years of practice, he has had six
clients that have been affected by the federal inconsistency
with Alaska law. He said Mr. Satterberg has had such clients,
and he said he is sure there are hundreds of others similarly
affected. He urged the committee to support HB 408.
MR. ROSS, in response to Representative Herron, said under
present law, Alaska State Troopers and police officers can use
federal law to arrest someone merely for possession of a rifle
or a shotgun. He said HB 408 should correct that problem,
because federal law recognizes people's rights to own firearms,
provided they have gotten their full rights restored, and the
proposed legislation would make that happen.
2:20:06 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), stated
that DOL has a concern with the bill because it believes that by
changing these provisions from an affirmative defense to making
the law not apply to these people will make it extremely
difficult to prosecute anybody for being a felon in possession
of a firearm - even people who have not had 10 years pass by.
Currently, the defendant has the burden of proving that those
circumstances exist. For example, she said, if a person has a
prior offense, for which he/she received a pardon, then that is
information that is uniquely in the possession of that person.
[Under HB 408], DOL would have to disprove beyond a reasonable
doubt that the person did not have a pardon or an SIS that was
set aside.
2:22:59 PM
MS. CARPENETI, in response to Chair Ramras, offered an example
in which, under current law, a person charged with being a felon
in possession would bring forth evidence of a pardon. In
response to a follow-up question from Chair Ramras, she said
drug offenders and others in that milieu get guns one way or
another - not necessarily legally - and if they are found with a
gun by a police officer, and the state wanted to prosecute them,
the state would have to prove that they did not get a pardon for
the underlying offense for which they were convicted.
REPRESENTATIVE GATTO asked, "Isn't it impossible to prove a
negative?"
MS. CARPENETI responded that that is the department's concern,
that the information that a person has a pardon is in that
person's possession, and he/she should be able to come present
that information to the court. The same applies to an SIS, she
relayed. She said she thinks the department would have
information about an SIS for a conviction in Alaska, but not
necessarily from other states. In response to a follow-up
remark from Representative Gatto, Ms. Carpeneti said by saying
that these provisions do not apply to a person in these
circumstances, the person would have no duty to come forward and
say, "I was pardoned."
CHAIR RAMRAS asked for suggestions on how to make it possible to
"create this accommodation" without compromising the work of the
department.
MS. CARPENETI indicated that finding such suggestions is
difficult, because the state is dealing with federal law, which
is supreme over state law. She said she does not have a
suggestion at this point, but the department is certainly
willing to work with the bill sponsor. She emphasized the
difficulty of this area of law.
CHAIR RAMRAS concluded then, that this is a policy call whether
to come up with a mechanism to restore rights for convicted
felons who have paid their debts to society and then have to
deal with the burden of proving pardons and SIS claims from
those from other states.
MS. CARPENETI replied that under Version K, the department
believes that it would have to "disprove that beyond a
reasonable doubt."
2:27:56 PM
MR. ROSS offered his understanding that if a person is arrested
and charged with being a felon in possession, then the defense
would be: "I'm not a felon in possession; it's not against the
law for me to do it." He said he does not understand the logic
behind the argument of the department. He said if a person is
charged, he/she comes up with a defense; it should not have to
be an affirmative defense, because "the average person does not
have to come up with an affirmative defense." He stated, "But
certainly if anyone is charged, they're going to have to come up
with a defense, they just don't have to prove their aspect of
the defense." He indicated that it is the roll of the
prosecutor to prove that the charges against someone are
correct.
2:29:18 PM
MR. SATTERBERG concurred with Mr. Ross that anytime there is an
affirmative defense, the burden of persuasion shifts to the
other side to have to come forward with evidence to prove the
allegations. He said when the affirmative defense is made such
that a person must provide proof of "the following," there is a
failure to realize that that person is still being charged
initially. The government, under constitutional law, has the
burden of proof beyond reasonable doubt; however, if the
government is going to charge somebody with being a felon in
possession of a weapon, the government should be in possession
of the evidence it needs to prove that case. He interpreted the
testimony of Ms. Carpeneti to mean that the state is going to
charge the person, then make that person come forward with
evidence to disprove the state's charge. He said it is rare in
our society's system that a person has to come forward with any
proof; the person has constitutional rights to remain silent and
the government has the requirement to prove the person guilty
beyond a reasonable doubt. He said "our" position is that if
the state does not have its facts in order, it should not bring
forth charges in the first place. He concluded, "If we're
talking about aligning things up with federal law again, the
problem is if you don't do it this way, you're going to find a
disjoint between the federal law and the state law, and we're
right back to the problem that started this."
2:31:01 PM
MS. CARPENETI noted that under current law, the fact that person
had a pardon is an affirmative defense, and under Alaska law, an
affirmative defense is one that the defendant has the burden of
proof of establishing. On the other hand, she said, a defense
is a defense that the state has to disprove beyond a reasonable
doubt. She offered self-defense as an example of defense. The
bill would change Alaska law from affirmative defense to say
that the prohibition against carrying concealed does not apply
to a person with a pardon. She said that is an unusual way of
drafting [law], and DOL's position is that that, in effect,
makes it a defense that the state has to disprove. So, in
bringing a charge of felony possession, the state would have to
be prepared, as Mr. Satterberg said, to disprove that the person
got a pardon, and that pardon might have come from any state in
the Union.
CHAIR RAMRAS said this is a policy call. He indicated that he
understands the concerns of the state, but does not empathize
with the department's position, because of the compelling
stories he has heard from Alaskans who have paid their debts to
society and cannot get their gun rights back.
2:34:14 PM
MS. CARPENETI said she understands the confusion regarding this
issue, but the concern of the department is, for example, that a
drug dealer who has been convicted of an unclassified felony is
still carrying a concealed weapon, even though that is against
the law, and if he is charged with being a felon in possession,
the state would have to prove that he was not pardoned in other
states, which would be a difficult burden of truth.
REPRESENTATIVE GATTO indicated that he cannot envision a judge
saying, "We have to do a lot of work on every one of you guys."
He said the judge would simply make a ruling; however, the
attorney may say the ruling is out of order. He asked Ms.
Carpeneti if that is the scenario that is of concern.
MS. CARPENETI answered that a judge must follow the law adopted
by the legislature. She said the department's concern is that
"saying that it does not apply to people in these circumstances"
would "make it part of the case in chief for us to have to
disprove." She offered her understanding that Mr. Satterberg
had just said as much.
2:35:58 PM
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, close public testimony on HB 408.
2:36:13 PM
REPRESENTATIVE HERRON moved to report the proposed committee
substitute (CS) for HB 408, Version 26-LS1459\K, Luckhaupt,
3/24/10, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
408(JUD) was reported from the House Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB408 Proposed CS version K 3.24.10.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 408 |
| 01 SB60 Sponsor Statement.pdf |
HJUD 3/25/2010 1:00:00 PM |
SB 60 |
| 02 SB60 Bill L&C CS v. S.pdf |
HJUD 3/25/2010 1:00:00 PM |
SB 60 |
| 03 SB60 Sectional Analysis.pdf |
HJUD 3/25/2010 1:00:00 PM |
SB 60 |
| 04 SB60-2-1-021010-LAW-N.pdf |
HJUD 3/25/2010 1:00:00 PM |
SB 60 |
| 01 HB251 Proposed CS version E.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |
| 02 HB251 Sponsor Statement.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |
| 03 HB251-1-1-031110-CED-N.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |
| 04 HB251-2-1-031110-DOT-N.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |
| 05 HB251 version R.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |
| 06 HB251 Support documents.pdf |
HJUD 3/25/2010 1:00:00 PM |
HB 251 |