Legislature(2011 - 2012)CAPITOL 120
02/09/2011 01:00 PM House JUDICIARY
Audio | Topic |
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Start | |
HB80 | |
HB127 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
*+ | HB 80 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+= | HB 127 | TELECONFERENCED | |
HB 80 - SELF DEFENSE 1:07:07 PM CHAIR GATTO announced that the first order of business would be HOUSE BILL NO. 80, "An Act relating to self defense in any place where a person has a right to be." 1:08:11 PM REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, speaking as one of the joint prime sponsors for HB 80, relayed that the proposed legislation would change AS 11.81.335(b) to reflect that a person doesn't have a duty to retreat and can instead apply deadly force if he/she is anywhere he/she has a right to be. 1:11:19 PM BRIAN JUDY, Senior State Liaison, National Rifle Association - Institute for Legislative Action (NRA-ILA), testifying in support of HB 80, characterized the proposed bill as important self-defense legislation. He offered his belief that the bill would apply to only those who are justified in using deadly force. He then offered his understanding that the use of deadly force is justified when a person reasonably believes that he/she or a person he/she is protecting is in danger of being killed, sustaining serious bodily injury, being a victim of sexual assault, being kidnapped, or being robbed; it is not justified if the person is engaged in mutual combat, is provoking another person to violence, is the initial aggressor, or "possesses a weapon in furtherance of a felonious activity." Mr. Judy posited that although it is not explicitly expressed in statute, gang activity would be included under possessing a weapon in furtherance of a felonious activity. Mr. Judy said the proposed bill would remove the need for someone to have to ask him/herself if retreat is possible. 1:14:54 PM CHAIR GATTO, using an example wherein a person comes upon someone attacking another person, asked how that situation would be treated under HB 80 in terms of the duty to retreat. MR. JUDY ventured that statutes outline that a person is justified protecting his/her life and the life of another; therefore, under the provisions of the proposed bill, the person in Chair Gatto's example would be allowed to defend the victim. In response to a follow-up question, he said the first option is to call 911. He said his experience has shown that people who carried a concealed weapon do everything possible to avoid confrontation, because when a person - good or bad - pulls a trigger, he/she will be arrested. 1:17:44 PM REPRESENTATIVE NEUMAN noted that AS 11.81.330 speaks about situations involving mutual combat, and opined that the bill wouldn't apply in such situations. 1:18:54 PM MR. JUDY added his belief that under existing law, even when a person's use of force was justified, he/she risks a finding by court that he/she overestimated the difficulty of retreating. He opined that in the split second available, once a person judges him/herself to be justified in taking action, he/she should not have to then stop and consider whether it is possible to retreat. He urged the committee support of HB 80. 1:20:40 PM REPRESENTATIVE HOLMES said she agrees that a person in danger should have the right to defend him/herself, and she relayed that in those examples she has heard, the person is already covered by existing law. Therefore, she asked for examples of when, under existing law, people are being prosecuted that should not be. MR. JUDY acknowledged that current statute is good, but that HB 80 would "take it the rest of the way." He indicated that there are 16 states that currently have statutes similar to HB 80. He said the bill would ensure that a person has the ability to act on justification. He said the intent of the proposed legislation is to alleviate the need for a person to justify before a court that he/she was justified in killing someone, and he suggested criminals would be taking a bigger risk once they know about this new law. REPRESENTATIVE HOLMES expressed concern that the change proposed by HB 80 will simply make it easier for criminals to get acquitted of murdering someone, particularly given that there are not a lot of people going to trial having to defend their justified actions. MR. JUDY argued that a person would still have to be justified in killing another person, and that the criteria for what constitutes justification are sufficient to prevent such from happening. 1:27:20 PM REPRESENTATIVE NEUMAN ventured that HB 80 is simply adding a clarification with regard to whom Alaska's self defense statute applies; it simply would allow the person to be "in any place where the person has a right to be." He said he wants to ensure that a person has a right to defend him/herself before harm is inflicted. CHAIR GATTO referred to language in Section 1, subsection (b), which read as follows: Section 1. AS 11.81.335(b) is amended to read: (b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter, except there is no duty to leave the area if the person is CHAIR GATTO said the words "knows" and "complete" are absolutes, and he opined that a person needs better protection than that because "it will never happen." He said if the words "suspects" and "reasonable" safety had been used, it would completely change the meaning. 1:30:47 PM REPRESENTATIVE GRUENBERG pointed out that [AS 11.81.335(b)] requires that a person has an absolute necessity to kill another person, which is a very high standard. MR. JUDY concurred. CHAIR GATTO asked if the words "reasonably believes" trump the word "necessity". MR. JUDY offered his understanding that those words work together. REPRESENTATIVE GRUENBERG said he does not see the words "reasonably believes" in the aforementioned statute. REPRESENTATIVE NEUMAN explained that "reasonably believes" appears in another portion of AS 11.81.334, [subsection (a)], which read as follows: (a) Except as provided in (b) of this section, a person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against (1) death; (2) serious physical injury; (3) kidnapping, except for what is described as custodial interference in the first degree in AS 11.41.320; (4) sexual assault in the first degree; (5) sexual assault in the second degree; (6) sexual abuse of a minor in the first degree; or (7) robbery in any degree. REPRESENTATIVE GRUENBERG, regarding the language, "in any place where the person has a right to be", which would be added to AS 11.81.335 under HB 80, said there is language currently in that statute that would become incongruous. For example, he noted that current statute says that there is no duty to leave the area if the person is on premises "that the person owns or leases" or "where the person resides", or is "in a building where the person works in the ordinary course of the person's employment". He pointed out that a landlord cannot go into a tenant's apartment without giving 24 hours notice, that a person may not have a right to be at his/her residence if he/she is the subject of a domestic violence order, and that a person may not have a right to be in a particular office within a building in which he/she works. 1:35:21 PM CHAIR GATTO questioned whether not being prohibited from being somewhere means the same thing as having a right to be there. REPRESENTATIVE GRUENBERG offered an example that although he is not prohibited from entering the home of someone he knows, he would wait to be invited into that home. REPRESENTATIVE GRUENBERG directed attention to language on page 2, line 2, "protecting a child or a member of the person's household", and said he thinks there may be reason to need to protect someone else, for example, a parent or disabled adult. 1:36:55 PM REPRESENTATIVE NEUMAN offered that other statutes would apply in such circumstances, but acknowledged that perhaps some of the language that Representative Gruenberg highlighted could be removed. REPRESENTATIVE GRUENBERG expressed concern that the language in paragraph (4), regarding the protection of a child or member of the person's household, may be too narrow. CHAIR GATTO said many people consider their pets to be members of their household. REPRESENTATIVE GRUENBERG said traditionally a member is a person. The committee took an at-ease from 1:39 p.m. to 1:40 p.m. 1:40:36 PM REPRESENTATIVE GRUENBERG noted that AS 11.81.340 [addresses use of force "in defense of a third person"]. He then pointed out that Perkins Law addresses the issue of "castle" rule; "castle" is a term of art that has been around for many years. In response to Chair Gatto, he gave examples of cases from the '40s and '50s in which that term was used. 1:43:22 PM REPRESENTATIVE THOMPSON expressed support for HB 80. 1:45:08 PM DOUGLAS MOODY, Deputy Director, Criminal Division, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), said, for example, when a person is out hunting and gets involved in an altercation and has a duty to retreat, the question becomes when that person should make that decision. He said when a person "knows" "with complete personal safety" [that he/she could avoid using deadly force by leaving the area] is something that is decided by a jury, and the jury could infer from conduct whether or not the person had that knowledge. Under HB 80, he said, the question would become whether the person is justified in defending him/herself in a situation that he/she did not bring about, rather than questioning if the person waited too long to leave because he/she had a right to be there. 1:47:50 PM CHAIR GATTO offered an example wherein one hunter encounters another hunter who tells the first to get out of his territory, to which the first says he has a right to be there, at which point the hunter tells the first hunter he has to the count of three to leave. He asked Mr. Moody how he would interpret that scenario with regard to self defense. MR. MOODY responded that that scenario could be interpreted in more than one way. The first possibility, he said, is that the jury could decide that the first hunter had a duty to walk away the minute the other hunter said the territory was his and ordered him to do so, because the first hunter was aware that both people involved were armed, which could result in a shooting. The second possibility, he related, is that the jury could decide that the first hunter's duty to walk away began the moment the other hunter gave him to the count of three to do so, because the hunter giving the ultimatum had escalated the situation. The third possibility, Mr. Moody, ventured, is that if the aggressive hunter raised his gun after giving the first hunter to the count of three and the first hunter shot him; the jury may be sympathetic and decide that the first hunter had the right to defend himself because he did not create the situation and had the right to be there. He emphasized that the proposed law changes the focus from whether a person is engaged in misconduct to whether someone else is forcing the person into a situation in which he/she has to defend himself. CHAIR GATTO asked Mr. Moody how he would defend the first hunter if that hunter said he did not trust the aggressive hunter, did not want to turn his back to him, did not want to walk backwards through the woods, and did not want to leave. He asked if a threat is sufficient reason for acting in self defense, and he added to his hypothetical situation that the first hunter intended to shoot the aggressor in the knee, but missed and shot him in the heart. MR. MOODY said he would argue for the first hunter that he was dealing with someone who was unreasonably aggressive and that his only option was to shoot first in this instance. However, he said he would warn his client that the outcome would depend on the jury. CHAIR GATTO stated that when a person takes action based on his/her right to be somewhere, then he/she has a greater measure of credibility. He opined that that is the crux of the proposed legislation. He then relayed that public testimony would remain open at this time. 1:53:42 PM RICHARD SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), noted that AS 11.81.340 addresses the issue of defending those who are not members of one's household. He stated, "What that provision is in there for is you don't have an obligation to remove yourself from a situation where you're using self defense and it's your child or a member of the household. ... That's only dealing with ... an obligation to remove yourself from the area." REPRESENTATIVE GRUENBERG characterized language in statute regarding retreating as confusing, and asked for the general rule regarding the duty to retreat. MR. SVOBODNY said in 1935 it was indicated that there was not, in the Territory of Alaska, the obligation to retreat. He said in 1978, with the revision of the criminal code, the legislature made the determination that under some circumstances, if a person could remove him/herself from a situation of danger in complete safety, then he/she would be required to do so. In 2006, he noted, there was a revision in this language through Senate Bill 200. 1:57:41 PM CHAIR GATTO opined that using a standard of "complete" is setting a bar that can't be reached. MR. SVOBODNY related that a person does not need to retreat unless he/she can do so in complete safety. So, in the example previously given by Chair Gatto, the first hunter would not have a duty to retreat because it would not have been safe to turn his back on the other hunter. Furthermore it is the State of Alaska that has to prove beyond a reasonable doubt that there was no danger to the person in retreating. CHAIR GATTO opined that it would be too difficult for a person to have to keep all the factors in mind before taking action in the moment. REPRESENTATIVE THOMPSON questioned why the fiscal note doesn't reflect a decrease in spending, given that the department would not have to prosecute as many people. MR. SVOBODNY pointed out, though, that in situations involving the death of a person, the Department of Law still has to make some determinations. He mentioned the number of cases and the need for extra personnel. REPRESENTATIVE THOMPSON asked Mr. Svobodny if he is saying that the number of cases DOL has will increase from the 1,155 cases the department had last year. MR. SVOBODNY explained that the number of cases for review will not increase, but the number of cases that go to trial likely will, as indicated by Mr. Moody's response to Chair Gatto's hypothetical case. 2:03:39 PM REPRESENTATIVE HOLMES surmised that the broadening of statute under HB 80 would make it easier for criminals to claim self defense, which would make it more difficult for the department to prove a case is one of murder rather than self defense. MR. SVOBODNY concurred. He stated that true cases of self defense should not have to go to trial. He said the department agrees with the bill sponsor that victims of crimes should be protected and those who use self defense are victims of crimes. He related a case in which two men were each driving a vehicle, got into an argument, pulled over into a parking lot, where both had a right be, and one shot the other. He said that case settled with a plea, but "now it will be litigated." He said the department anticipates that cases like that would [under HB 80] go to trial more often. He said the door would be open to arguing that cases now not considered self defense would be self defense under the proposed legislation. 2:07:59 PM REPRESENTATIVE HOLMES directed attention to a letter in the committee packet dated March 15, 2010, from the Department of law to then chair of the House Judiciary Standing Committee, Representative Jay Ramras. She offered her understanding that the letter referred to a prior version of the bill [House Bill 381], and she ventured that some of the concerns stated therein may pertain to HB 80. She cited a portion of the letter, which read as follows: Every experienced prosecutor with whom I have spoken about this bill uniformly agrees that it would promote violence and be a bad idea for our state. We believe that as drafted this bill will encourage unnecessary violence in our state. REPRESENTATIVE HOLMES said she would like Mr. Svobodny's opinion regarding that letter written in 2010. CHAIR GATTO offered his belief that HB 80 will reduce violence, and cautioned against making a decision about the bill based on fears of what might happen. He asked Lieutenant Rodney Dial if he thinks there would be more or less violence resulting from having people more willing to protect themselves. 2:11:52 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), said he doesn't see HB 80 affecting DPS at all or at least not dramatically affecting the number of purported self defense cases. He said most cases of self defense are clear, and when they are not, the Alaska State Troopers contacts the district attorney prior to making the arrest. He concluded, "It's just not something that I've seen a lot of over the years, so, it's really hard for me to comment on what may happen if this legislation is passed." 2:13:13 PM MR. SVOBODNY, in response to a question, said he doesn't believe that [passage of HB 80] would result in an increase in violence. He reiterated that the number of cases will remain the same, but the State of Alaska will have to spend more time on them. He added that he does not know of any cases where a purported self- defense case was not screened out before going to trial. REPRESENTATIVE HOLMES asked Lieutenant Dial if an increase in the number of cases going to trial would mean an increase in workload for the Department of Public Safety. LIEUTENANT DIAL reiterated that the department does not believe that HB 80 would have a significant impact on its activities. 2:15:45 PM CHAIR GATTO noted that members' packets include 22 letters of support for HB 80 and none in opposition. He then relayed that HB 80 would be held over.
Document Name | Date/Time | Subjects |
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HB80 Hearing Request 02-02-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
HB80 Witness List 02-02-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
HB80 Version A 01-18-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
HB80 Fiscal Note-DPS-AST-02-07-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
HB80 Sponsor Statement 02-08-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |