Legislature(2005 - 2006)
04/01/2005 02:09 PM JUD
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* first hearing in first committee of referral
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HB 184 - MUNICIPAL FIREARM ORDINANCES 2:10:07 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 184, "An Act relating to firearms." 2:10:56 PM ERICH DeLAND, Staff to Representative Mike Chenault, House Finance Committee, Alaska State Legislature, sponsor, said on behalf of Representative Chenault that HB 184 prohibits a municipality from overriding state law on the issue of firearms. WALT MONEGAN, Chief, Anchorage Police Department (APD), Municipality of Anchorage (MOA), said he has two issues to raise regarding HB 184, one of them being that the bill could cloud existing law and policy as they pertain to weapons. For example, if a group of youths are driving down the road shooting firearms out of their vehicle, that behavior is currently covered by local municipal law - discharging a weapon within a municipality - but state law stipulates that the behavior would have to take place on a highway and that the behavior would have to endanger someone before it would be covered. MR. MONEGAN said that similarly, there is a local Anchorage ordinance prohibiting firearms in municipal buildings, and that that ordinance might no longer be enforceable after the passage of HB 184, since no such prohibition exists in state law. A bigger issue, however, is that passage of HB 184 could affect a local government's ability to govern itself, which in turn could complicate the issue of rural law enforcement staffing. If local governments decide to do away with local laws and opt to follow only state laws, then the state will end up having to pay for expanded law enforcement into Bush areas, and there will be less money available for education and other items that promote peaceful communities. He asked the committee to consider the possible unintended consequences, the backlash, of mitigating local governments' rights. 2:14:49 PM BRIAN JUDY, Alaska State Liaison, Institute for Legislative Action, National Rifle Association of America (NRA), urged the committee to support HB 184, adding that it will strengthen and broaden the existing "Alaska state firearm preemption statute." He offered his understanding that current [state] law only narrowly limits a local government's ability to impose two types of restrictions, one pertaining to the right to own or possess firearms within a residence, and one pertaining to the transportation of unloaded firearms. Any other type of restriction may be imposed by local municipalities. Further, existing [state] law allows local governments to create restrictions in the aforementioned two categories if the restrictions are ratified by the voters. He said that the NRA doesn't think that this stipulation is right; the fundamental, constitutional rights of a minority should not be limited just because a majority of voters support the ratification of limitations. MR. JUDY opined that HB 184 will provide for a standardization of all firearms laws throughout the state, based upon current and future statutes enacted by the legislature. The bill will make null and void any local ordinances that are more or less restrictive than current state law. He attempted to assure the committee that HB 184 would in no way lessen the current body of federal and state firearms laws., and mentioned that there are "at least seven and half pages of specific state laws" dealing with misconduct involving weapons. The problem with local firearm ordinances, he opined, is one of sheer variety; where no uniform state laws are in place, the result can be a complex patchwork of restrictions that change from one local jurisdiction to the next. MR. JUDY offered his belief that it is unreasonable to expect people, whether they are residents or visitors from out of state, to know a myriad of varying laws. Where inconsistent laws are in place, law-abiding citizens with no criminal intent are placed in jeopardy of running afoul of restrictions they don't even know exist. Further, he remarked, antigun proposals and restrictive ordinances at the local level threaten honest firearm owners' rights and the fundamental American principle of equal protection under the law. Necessary criminal laws should be enacted at the state level, because a uniform application of law treats all citizens fairly and because all citizens in this state should benefit from and be protected equally by those laws which are determined to be needed. MR. JUDY, in conclusion, said that HB 184 will allow law enforcement to concentrate on "the real criminal element," that enforcement of unwitting violations by otherwise law-abiding citizens diverts scarce law enforcement resources. To prevent the problems associated with restrictive local ordinances, 44 states have enacted "firearm preemption laws" similar to [HB 184], he remarked, adding that existing Alaska law is among the weakest. He urged the committee to support HB 184. 2:18:02 PM FRED PIKE, Interim Manager, Bristol Bay Borough, said that notwithstanding the fact that he is a lifetime member of the NRA, he is opposed to HB 184. The Bristol Bay Borough, he explained, has successfully, for the past 20 years, kept an area near Naknek closed to the use of high-powered rifles in the hunting of big game, on the grounds that the use of such firearms near that village presents a safety hazard to both villagers and other hunters in the field. JERRY CASTLEBERRY, Chief, Bristol Bay Borough Police Department, Bristol Bay Borough, said he opposes HB 184 for safety reasons. (indisc. - teleconference static). CHAIR McGUIRE asked Mr. Castleberry whether his testimony mirrors that of Mr. Pike's. MR. CASTLEBERRY said it does. REPRESENTATIVE GRUENBERG asked for a copy of the Bristol Bay Borough ordinance that HB 184 would invalidate. MR. CASTLEBERRY agreed to provide the committee with a copy of that ordinance. 2:21:24 PM JENNIFER YUHAS, Executive Director, Alaska Outdoor Council (AOC), testified in support of HB 184. She said: On behalf of the board of directors of the Alaska Outdoor Council - representing over 54 member clubs and nearly 4,000 associate members, for a collective membership of nearly 12,000 individuals - which is also the recognized state association for the National Rifle Association, I would like to thank Representative Chenault for his sponsorship of HB 184, and offer our enthusiastic support of this legislation. First of all, we support the testimony offered by Brian Judy of the NRA. House Bill 184 more fully recognizes the constitutionally guaranteed right of private individuals to lawfully exercise their right to keep and bear arms, and reduces current confusion faced by law-abiding citizens as they attempt to do so. The proposed legislation before you only addresses municipal ordinances with [regard] to current Alaska firearm statutes. While many decisions should be left to local control, it is unacceptable to allow a governing entity to unnecessarily restrict the constitutionally guaranteed right of our law-abiding citizens. In passing this legislation today, the committee will be validating the constitutionally guaranteed right to keep and bear arms of all law-abiding Alaskans, and [will be] supporting the fact that any right guaranteed by our founding document should not be infringed. Three years ago this body passed legislation eliminating the requirement for Alaska's law-abiding citizens to obtain a special permit to exercise their right to carry concealed firearms as well as open ones. Currently, six municipalities throughout our state have not recognized this change [via] ... their own ordinances. These municipal ordinances are not well publicized, and this current discrepancy is confusing to well-intended, law-abiding Alaska citizens, and creates an unnecessary dictum for enforcement authorities. By passing this legislation today, you will be recognizing the constitutionality of the Second Amendment [of the U.S. Constitution] and rewarding Alaska's law abiding citizens by eliminating confusion and removing an unnecessary burden from the already lengthy duties of our valuable enforcement staff. The Alaska Outdoor Council strongly advocates the passage of this legislation, and thanks you for your support. MS. YUHAS concluded: I'd also like to add, ... with regard to [Mr. Monegan's] comments, that state law already prohibits the discharge of a firearm or other weapon from or across a highway. And, as I've personally been involved in the debate surrounding firearm legislation over the last few years, we've consistently heard from our enforcement personnel on the front lines that while we may hear from certain chiefs in opposition to the ability of the private individual to exercise [his/her] Second Amendment rights, ... those on the front line do not consider the removal of the imposition of a permit requirement to be burdensome on their ability to do their job. 2:24:26 PM CARY R. GRAVES, City Attorney, City of Kenai, expressed the Kenai City Council's concern with the portion of HB 184 that would prohibit a municipality from enacting or enforcing an ordinance regulating the use of a firearm if it is inconsistent with state law. The City of Kenai feels that that portion of the bill would, in effect, repeal Kenai's local ordinance that outlines what parts of the city a person can or cannot discharge a firearm in. Currently the city code allows for the discharge of guns in the rural parts of the city, but prohibits it in the residential parts of the city. "It's a public safety issue to us," he remarked, adding that there has been an ordinance regulating the discharge of firearms on the books since 1963, and that it has been amended over the years. MR. GRAVES said that two years ago, the city adjusted the shooting boundaries to reflect new residential areas within the city, and adopted a very clear, definitive, color-coded map outlining those boundaries. Those maps are available at City Hall and in the city code. He relayed that when he's shown those maps to citizen's asking about the shooting areas, the citizens have told him that they thought the boundary limits were very clear and very well defined. "I want to emphasize that the city is not anti gun or anti hunting - quite the contrary; however, the city council feels that the city should have the ability to regulate the discharge of firearms within its boundaries," he added. MR. GRAVES said that the city does not currently, nor intends in the future to, regulate the sale, transfer, or transportation of firearms; nor does the city oppose the portions of the bill that speak to the sale, transfer, or transportation of firearms. In conclusion, he asked that the word "use" be removed from the bill so that a municipality can maintain its ability to control the discharge of firearms within its boundaries. 2:26:28 PM REPRESENTATIVE GRUENBERG asked Mr. Graves to send the committee a copy of any ordinances that would be invalidated by HB 184. MR. GRAVES agreed to do so. 2:28:05 PM SCOTT HAMANN said he strongly supports HB 184, and relayed that he generally carries a firearm when traveling and doesn't want to have to worry about violating local ordinances and, thus, have his firearm confiscated or be hauled off to jail. He characterized the concept of making [firearm regulation] consistent throughout the state as a good idea. REPRESENTATIVE GARA asked Mr. Hamann whether he's ever taken a firearm into a municipality and then found out that doing so was illegal. MR. HAMANN said he had not, but is worried about possible future municipal laws. 2:30:36 PM KATHLEEN WASSERMAN, Alaska Municipal League (AML), said that the AML believes that most local decisions should be left with local municipalities. She posited that whether one packs a firearm into a municipality is not as much of an issue as is the use to which one puts that firearm, and noted that many communities across the state have ordinances currently on the books that are intended to keep people from discharging guns within their city limits. She offered her belief that most municipalities have the right and duty to protect the people of their communities, and that ensuring that municipalities retain the right to establish ordinances for that purpose is the right thing to do. MS. WASSERMAN indicated that to [establish a state law] because of the fear that a municipality might adopt an ordinance in the future is a dangerous route to take; rather, people should act at the local level if they feel that a local government is attempting to establish an ordinance with which they don't agree. She said that the AML thinks that local communities need to have a local say with regard to the use of firearms. Additionally, with regard to the fiscal note, she surmised that if municipalities no longer had the right to prosecute anyone for discharging a firearm, then the state would bear the burden of prosecuting people for that behavior. 2:32:58 PM FREDERICK H. BONESS, Municipal Attorney, Department of Law, Municipality of Anchorage (MOA), relayed that the MOA has concerns with HB 184, and that he's provided the committee with copies of the municipal ordinances that he thinks would be impaired by the bill. He went on to say: I think the law is quite clear that any municipal ordinance which is in conflict with state law is invalid and would not be affirmed by the courts. That's already the law - no particular legislative action is required to implement that - that is the law as a matter of ... supreme court decisions. This [bill] uses the language "inconsistent", which, in light of the existing law with respect to conflicts, will undoubtedly have to be read by the courts to mean something broader. And that has serious implications because the amount of state law which addresses municipal-specific problems or concerns from a safety point of view is really nonexistent. So, for example, there's nothing in state law that addresses the question of whether you can bring a gun into a municipal building, whereas there is, in state law, a specific prohibition against bringing a gun into a state courthouse. ... Were we to try [to] ... implement policies or ordinances which prohibit people from bringing guns into municipal buildings, the court is very likely to conclude that because the state has not prohibited bringing guns into municipal buildings ... and has addressed it with respect to state courthouses, our ordinance would be inconsistent. That is really an untenable result from the point of view of public safety and the safety of our employees, and for that reason we would very much be concerned and not in favor of language that simply says "inconsistent". One solution from the point of view of a municipality like Anchorage, which has many urban-related gun issues that aren't true for other parts of the state, [would be] ... to limit the application of [the bill] ... to not make this law apply to home rule municipalities. That would deal with the larger urban areas and allow them to deal with urban-related matters. As [Mr. Monegan] said, this would ... inhibit our ability, significantly, to prevent discharge. One of the witnesses testified that it's already against state law to shoot from a highway or across the highway, but a highway under state law has a specific definition, and many of the non-major roads in the municipality would not qualify as highways and [so] would not be governed by state law. And, again, because state law doesn't address the issue, the language of "inconsistency" would result in our inability to address the issue. CHAIR McGUIRE, characterizing Mr. Boness's points as valid, encouraged Mr. Boness to also consider possible changes to current state firearm laws that would further the municipality's goals with regard to public safety, and predicted that HB 184 will have the support it needs to pass the legislature. She said she is not sure how a judge would interpret the word "inconsistent". 2:38:47 PM MR. BONESS reiterated, however, that changing the language to say, "in conflict with state law", would address many of the concerns raised. Because of the way courts interpret statute, he predicted, use of the term "inconsistent with" could result in the court saying that the legislature already knew that things that were in conflict couldn't be part of the municipal code and so the word "inconsistent" must mean something other than "in conflict with." He mentioned that by taking away local control, the legislature is basically suggesting that it should pass what amounts to ordinances, as a matter of state law, for each local jurisdiction. CHAIR McGUIRE surmised that the sponsor's belief is that the right to bear arms is a constitutional right and therefore it is the state's responsibility to generate policy with respect to any restrictions that would govern that right. 2:41:00 PM REPRESENTATIVE GRUENBERG asked whether the term "inconsistent" would be susceptible to sufficient definition to avoid a constitutional challenge of void for vagueness. MR. BONESS offered his belief that in order to maintain ordinances necessary for regulatory purposes, the court might find that "inconsistent" is an acceptable term. REPRESENTATIVE GRUENBERG offered his recollection that Congress attempted to legislate "at this level" when it prohibited people from bringing guns on or near school yards, but it was held, in Lopez v. United States, that that violated state rights - local legislative authority. He asked whether the court might also find that [the bill] violates the constitutional right of a home rule municipality to enact its own legislation. MR. BONESS acknowledged that that could be the case, but pointed out that the legislature has the authority to impose particular state laws on home rule municipalities. He offered his belief that home rule municipalities don't have the same constitutional rights that states do vis-a-vis the federal government. REPRESENTATIVE GRUENBERG, predicting that the bill will initially be litigated in the context of somebody being charged with violating a local ordinance, asked whether the focus of the trial will become whether the defendant should be released on a technicality, that of whether the ordinance is "inconsistent" with state law, rather than whether the guilty should be punished. MR. BONESS opined that that would be the case. 2:43:23 PM REPRESENTATIVE GARA asked whether state law lists places to which firearms can be brought but to which local law prohibits the bringing of firearms. MR. MONEGAN mentioned licensed premises, and relayed that his officers are trained to make the assumption that every person, every home, and every car has a gun, and that those guns are always loaded. REPRESENTATIVE GARA asked whether the MOA currently has something different than state law with regard to bringing firearms into licensed premises, or whether the thought is that the MOA might in the future enact something to address such situations. MR. MONEGAN indicated that a problem arises if someone starts drinking in a licensed premises while in possession of a firearm; such [compromises] the safety of everyone in the establishment, and likened that behavior to drinking and driving. 2:47:48 PM CHAIR McGUIRE, remarking on a shortness of time, closed public testimony on HB 184. REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to delete "inconsistent" from page 1, line 5, and insert "in conflict". REPRESENTATIVE ANDERSON objected for the purpose of discussion. MR. DeLAND indicated that Amendment 1 would be acceptable to the sponsor. REPRESENTATIVE GRUENBERG mentioned that adoption of Amendment 1 would eliminate the need for other amendments. REPRESENTATIVE COGHILL spoke in favor of Amendment 1. He added, "I want our constitution to mean something when you're in a community, but I also want communities to be able to take care of whatever unique things that they really have been empowered to do under our [Alaska State] Constitution, so I think that would be consistent ..." REPRESENTATIVE ANDERSON interjected to remove his objection and indicate that he supports Amendment 1. CHAIR McGUIRE characterized the adoption of Amendment 1 as a compromise position. 2:50:27 PM CHAIR McGUIRE asked whether there were any further objection to Amendment 1. There being none, Amendment 1 was adopted. REPRESENTATIVE GRUENBERG, characterizing the title as awfully broad, asked that it be narrowed. MR. DeLAND offered his understanding that the title has been written as it is for a reason. CHAIR McGUIRE relayed that the sponsor has asked her to oppose any amendments that would change the title. The committee took an at-ease from 2:50 p.m. to 2:51 p.m. 2:51:41 PM REPRESENTATIVE GRUENBERG indicated that he would not be offering an amendment to change the title. REPRESENTATIVE ANDERSON moved to report HB 184, as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSHB 184(JUD) was reported from the House Judiciary Standing Committee.