Legislature(2005 - 2006)CAPITOL 120

04/03/2006 01:00 PM JUDICIARY

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01:09:29 PM Start
01:09:46 PM SB200
02:42:07 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Scheduled But Not Heard
Moved HCS CSSB 200(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
SB 200 - USE OF FORCE TO PROTECT SELF/HOME                                                                                    
[Contains brief mention of HB 314, companion bill to SB 200.]                                                                   
1:09:46 PM                                                                                                                    
CHAIR McGUIRE announced that the  only order of business would be                                                               
CS FOR SENATE  BILL NO. 200(JUD) am, "An Act  relating to defense                                                               
of self, other persons, property, or services."                                                                                 
CHAIR McGUIRE  noted that the companion  bill to SB 200  [HB 314]                                                               
had already been heard in committee.                                                                                            
1:10:08 PM                                                                                                                    
SENATOR  GENE  THERRIAULT,  Alaska  State  Legislature,  sponsor,                                                               
relayed  that the  latest version  of SB  200 is  [more specific]                                                               
with regard to where and when  deadly force can be used; contains                                                               
a  definition  of  carjacking; provides  broader  protection  for                                                               
"emergency  services  personnel";   contains  an  Alaska-specific                                                               
definition  of  gangs;  prohibits  the  use  weapons  by  felons;                                                               
contains  a  definition of  vehicle  that  complies with  driving                                                               
under  the influence  (DUI) statutes;  and prohibits  the use  of                                                               
deadly  force in  instances where  a  safe retreat  is assured  -                                                               
though there  will be no duty  to retreat from premises  one owns                                                               
or leases, or resides or works at,  or at which one is a guest or                                                               
agent of an  owner, lessor, or resident, or to  retreat if one is                                                               
a  peace  officer  or  is   assisting  a  peace  officer,  or  is                                                               
protecting a child or member of one's household.                                                                                
SENATOR  THERRIAULT  noted  that  committee  packets  contain  an                                                               
amendment  designed   to  prohibit  a  perpetrator   of  domestic                                                               
violence  (DV) from  claiming that  the use  of deadly  force was                                                               
justified because the victim was  attempting to flee in a vehicle                                                               
with   the  children;   that   amendment   [which  later   became                                                               
Amendment 4]  was labeled  24-LS1025\IA.1, Mischel,  3/31/06, and                                                               
     Page 4, line 30, following "vehicle":                                                                                      
          Insert "; this paragraph does not apply to a                                                                          
     person  outside  of a  vehicle  who  is involved  in  a                                                                    
     dispute with  a person inside  of the vehicle who  is a                                                                    
     household  member of  that person;  in this  paragraph,                                                                    
    "household   member"   has   the   meaning   given   in                                                                     
     AS 18.66.990"                                                                                                              
1:16:32 PM                                                                                                                    
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute  for Legislative  Action  (NRA-ILA), said  he would  be                                                               
speaking  in support  of SB  200, which,  he offered,  came about                                                               
following the passage of similar  legislation in Florida referred                                                               
to as  castle doctrine legislation.   He offered his  belief that                                                               
the "castle doctrine"  is common law and says that  one's home is                                                               
one's castle  and one  has every  right to  protect it;  in other                                                               
words, one  has no  duty to  retreat from  one's home.   Existing                                                               
Alaska law already  provides that there is no duty  to retreat if                                                               
one is  on premises that one  resides in, and SB  200 proposed to                                                               
broaden that somewhat.                                                                                                          
MR. JUDY encouraged  the committee to go back to  the language in                                                               
the original  version of both HB  314 and SB 200;  language which                                                               
said that  there was no duty  to retreat if one  was anywhere one                                                               
was  legally allowed  to  be; if  a person  is  walking down  the                                                               
street  or  through  a  park  or parking  lot  and  a  rapist  or                                                               
kidnapper tries to  drag him/her away, the  NRA-ILA believes that                                                               
the person  ought to  be able  to stand  his/her ground  and meet                                                               
force  with force  without having  to first  determine whether  a                                                               
safe  retreat is  possible.   He referred  to the  provision that                                                               
prohibits  criminals and  their families  from suing  victims for                                                               
killing or injuring those who attacked them.                                                                                    
MR.  JUDY  opined  that  protecting  the  right  of  law  abiding                                                               
citizens  to carry  firearms is  not enough  - when  under attack                                                               
from  a violent  criminal, no  person should  have to  fear civil                                                               
liability for defending  himself/herself; victims, not criminals,                                                               
should have the protection of law.   He said the NRA-ILA strongly                                                               
supports the  civil immunity provision  and the expansion  of the                                                               
"no duty  to retreat" language,  but would urge the  committee to                                                               
consider  going even  further  in that  regard,  allowing one  to                                                               
defend one's  self regardless of where  one is.  He  concluded by                                                               
urging the committee to support the bill.                                                                                       
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on SB 200.                                                                                     
REPRESENTATIVE  GARA referred  to the  provision in  SB 200  that                                                               
allows the use  of deadly force to prevent  a kidnapping [located                                                               
on page  3, line 14],  and offered his  belief that the  crime of                                                               
custodial interference  could be considered kidnapping.   He said                                                               
he did  not think that  they should  allow someone to  claim that                                                               
the use of  deadly force was justified in  instances of custodial                                                               
interference.  He  suggested that this issue  should be clarified                                                               
in the bill.                                                                                                                    
1:24:21 PM                                                                                                                    
DAVID STANCLIFF,  Staff to Senator Gene  Therriault, Alaska State                                                               
Legislature,   sponsor,  pointed   out  on   behalf  of   Senator                                                               
Therriault that there could be  possible exceptions; for example,                                                               
the person guilty of custodial  interference could be endangering                                                               
a child's life.                                                                                                                 
REPRESENTATIVE GARA asked whether situations  in which a child is                                                               
endangered would be covered by another provision of the bill.                                                                   
1:26:20 PM                                                                                                                    
DEAN  J.   GUANELI,  Chief  Assistant  Attorney   General,  Legal                                                               
Services  Section-Juneau, Criminal  Division,  Department of  Law                                                               
(DOL), offered his belief that they  would be.  He explained that                                                               
the crime of custodial interference  is not included in the crime                                                               
of  kidnapping;  although they  are  both  found under  the  same                                                               
article of  Title 11,  they are  treated as  completely different                                                               
crimes.   To  alleviate  concerns, however,  the committee  could                                                               
simply add  the words, "under AS  11.41.300" to page 3,  line 14,                                                               
after  the word,  "kidnapping"    He said  it  would  be hard  to                                                               
imagine  a  circumstance  involving custodial  interference  that                                                               
would  give rise  to  the  right to  use  deadly  force for  self                                                               
defense.   In response to a  question, he said that  the language                                                               
on page  4, line 2, pertains  to the duty to  retreat rather than                                                               
to the ability to use self-defense.                                                                                             
REPRESENTATIVE  GARA  pointed out  that  the  crime of  custodial                                                               
interference in the first degree is  a class C felony, and that a                                                               
provision of the statute pertaining  to the crime of kidnapping -                                                               
AS 11.41.300(a)(1)(E) -  says that a person commits  the crime of                                                               
kidnapping  if  the  person  restrains  another  with  intent  to                                                               
facilitate the commission of a  felony or flight after commission                                                               
of a felony.                                                                                                                    
MR. GUANELI  opined that  the crime  of custodial  interference -                                                               
which can only  be committed by parents or relatives  - cannot be                                                               
turned into  the crime of  kidnapping by virtue of  simply saying                                                               
that the  person intended to hold  the child and flee  the state.                                                               
He reiterated his  suggestion to simply add the  words, "under AS                                                               
11.41.300" to page 3, line 14,  after the word, "kidnapping".  In                                                               
response to a question, he  explained that any criminal charge or                                                               
conviction must  be based  on the  specific circumstances  of the                                                               
case.   If a parent hires  someone to kidnap his/her  child, then                                                               
the person hired  would be guilty of kidnapping, but  there is no                                                               
way  to  charge  the  parent with  kidnapping  in  situations  of                                                               
custodial interference because that charge simply doesn't apply.                                                                
REPRESENTATIVE GARA reiterated his prior comments.                                                                              
CHAIR  McGUIRE   asked  Representative   Gara  to   construct  an                                                               
amendment addressing his concern.                                                                                               
REPRESENTATIVE  GARA  suggested  adding  the words,  ",  but  not                                                               
including  conduct  governed by  AS  11.41.320"  after the  word,                                                               
"kidnapping" on page 3, line 14.                                                                                                
REPRESENTATIVE  GRUENBERG  opined  that  the  difference  between                                                               
Representative Gara's suggestion and  Mr. Guaneli's suggestion is                                                               
merely a  difference in drafting  style, and suggested  that they                                                               
speak to  Legislative Legal and Research  Services regarding this                                                               
1:34:38 PM                                                                                                                    
REPRESENTATIVE   GARA  made   a   motion   to  adopt   Conceptual                                                               
Amendment 1, to  alter page 3,  line 14,  "to allow this  kind of                                                               
self  defense  to be  used  for  kidnapping  except for  what  is                                                               
defined as  custodial interference  in the  first degree  in [AS]                                                               
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.                                                                
REPRESENTATIVE GARA,  in response  to a question,  explained that                                                               
only the crime  of custodial interference in the  first degree is                                                               
a  felony, and  thus there  is no  need to  include the  crime of                                                               
custodial  interference  in the  second  degree  in the  proposed                                                               
REPRESENTATIVE GRUENBERG removed his objection.                                                                                 
CHAIR McGUIRE asked whether there  were any further objections to                                                               
Conceptual   Amendment  1.      There   being  none,   Conceptual                                                               
Amendment 1 was adopted.                                                                                                        
REPRESENTATIVE GRUENBERG referred  to proposed AS 09.65.330(a)(2)                                                               
- located on page 1, lines  10-11 - and noted that neither nurses                                                               
nor doctors are  mentioned.  He said he would  like to have other                                                               
health   care  professionals   who  are   engaged  in   emergency                                                               
activities included in this provision.                                                                                          
1:38:32 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG [made  a  motion  to adopt]  Conceptual                                                               
Amendment 2, to add [to  proposed AS 09.65.330(a)(2)], the words,                                                               
"health care provider in an emergency situation".                                                                               
REPRESENTATIVE COGHILL  objected for  the purpose  of discussion.                                                               
He  said he  would want  this provision  to only  apply to  first                                                               
responders,  and  thus  is  satisfied with  the  phrase,  "in  an                                                               
emergency situation".                                                                                                           
REPRESENTATIVE  WILSON,  in  response  to  a  question,  reminded                                                               
members  that  when  they'd  included   the  term,  "health  care                                                               
provider" in  another bill,  they'd defined the  term so  that it                                                               
pertained to that bill specifically.                                                                                            
REPRESENTATIVE  GRUENBERG said  he  would like  that  term as  it                                                               
would be used in SB 200 to be as broad as possible.                                                                             
CHAIR  McGUIRE surmised,  then, that  the concept  is to  provide                                                               
protection to health  care providers who are  first responders in                                                               
emergency situations.                                                                                                           
MR.  GUANELI  pointed  out  that  [AS  12.55.155(c)(13)]  already                                                               
provides  a sentencing  aggravator for  conduct directed  at fire                                                               
fighters,  emergency medical  technicians, paramedics,  ambulance                                                               
attendants, or  other emergency responders  during or  because of                                                               
the  exercise  of  official  duties;  therefore  perhaps  similar                                                               
language could be used in Conceptual Amendment 2.                                                                               
CHAIR McGUIRE  expressed favor  with that  idea, adding  that she                                                               
would  also like  to  include  health care  providers.   In  this                                                               
manner, those that may be  traveling to emergency situations with                                                               
the  paramedics  - the  doctors,  the  nurses  - would  have  the                                                               
protection  offered   via  proposed  AS  09.65.330(a)(2).     She                                                               
suggested  that  this ought  to  be  the change  that  Conceptual                                                               
Amendment 2 makes - tracking  the language in AS 12.55.155(c)(13)                                                               
and including health care providers as well.                                                                                    
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Conceptual Amendment  2 as  she proposed it.   There  being none,                                                               
Conceptual Amendment 2 was adopted.                                                                                             
REPRESENTATIVE GARA turned  to the issue of  carjacking, and said                                                               
he  supports providing  for  the  right to  use  force against  a                                                               
carjacking.  However,  this could also include  a carjacking that                                                               
doesn't  involve any  threat of  serious physical  injury to  the                                                               
person.   One ought  to be  able to  use deadly  force if  one is                                                               
threatened during a carjacking, but not  if there is no threat of                                                               
force, he opined;  therefore, he would like  to consider possibly                                                               
adding  into the  definition of  carjacking on  page 5,  language                                                               
that  would stipulate  that the  situation  must involve  serious                                                               
physical  injury to  the  person or  threat  of serious  physical                                                               
injury to  the person.   This  way there  would be  a distinction                                                               
between  a  carjacking wherein  one  is  not actually  physically                                                               
threatened and a carjacking wherein one is so threatened.                                                                       
REPRESENTATIVE  COGHILL  said  it  seems as  though  the  act  of                                                               
actually taking a vehicle already addresses that issue.                                                                         
REPRESENTATIVE  GRUENBERG surmised  that  Representative Gara  is                                                               
suggesting  that they  alter proposed  AS 11.81.350(g)  such that                                                               
one would not  get to use deadly force unless  there is an actual                                                               
physical threat.                                                                                                                
1:44:41 PM                                                                                                                    
MR.  STANCLIFF  mentioned  that  there   was  a  fair  amount  of                                                               
discussion  in the  Senate on  this  issue and  an amendment  was                                                               
added  in order  to  clarify that  exact point,  that  if one  is                                                               
determined to  do whatever it  takes to  steal a car  - including                                                               
removing someone  from that  car -  that in  itself rises  to the                                                               
level  wherein   [the  use  of   deadly  force  to   prevent  the                                                               
carjacking] would be justified.                                                                                                 
REPRESENTATIVE  GRUENBERG asked  about  situations  in which  the                                                               
carjacker  says, "Give  me  your  car, please  get  out."   If  a                                                               
carjacker uses  the word please,  he proffered, the  driver would                                                               
know there was  no overt threat - the carjacker  is simply asking                                                               
the driver to remove himself/herself.                                                                                           
MR. STANCLIFF  posited that under  the full context of  the bill,                                                               
one doesn't  automatically get  to use deadly  force; the  use of                                                               
deadly  force  would  only  be  justified  if  that  is  what  is                                                               
necessary.   So if a  carjacking situation escalates  because the                                                               
driver says,  "No" and  refuses to  get out of  the car,  and the                                                               
carjacker then pulls  out a gun, there is  still a responsibility                                                               
to  only   use  force  when   faced  with  force  -   one  cannot                                                               
automatically  pull  out  a  gun  and  start  shooting  when  the                                                               
carjacker first asks one to get out of the vehicle.                                                                             
MR. GUANELI  offered his understanding  that one of  the purposes                                                               
of SB 200 is to expand "the  area of self defense."  A carjacking                                                               
is simply  a robbery; if it  is done with  a gun, it is  an armed                                                               
robbery, and if it  is not done with a gun but  with just the use                                                               
of force,  it is  an unarmed  robbery.  In  a normal  robbery one                                                               
would be permitted to use  self-defense [only] if it is necessary                                                               
to protect one's  self.  Under [proposed AS  11.81.350] one would                                                               
be allowed to  use deadly force not solely to  protect one's self                                                               
but also  to prevent  the robbery  - in  other words,  to protect                                                               
one's property.   And this is somewhat an expansion  of the whole                                                               
"stand your  ground" principle,  he remarked,  because if  one is                                                               
yanked out of a  car and thrown to the ground,  he/she may not be                                                               
in  any further  physical  danger and  yet  this provision  would                                                               
allow the use of deadly force to terminate the robbery.                                                                         
MR. GUANELI characterized  this as a policy  question, whether to                                                               
expand the  notion of  self-defense to permit  the use  of deadly                                                               
force in such situations, adding  that he thought that was indeed                                                               
one of the  purposes of the bill.   If the notion  of [only using                                                               
deadly force to  protect] one's self is added  to this provision,                                                               
he opined, then they might  as well delete the provision entirely                                                               
and rely on current law.                                                                                                        
1:48:42 PM                                                                                                                    
REPRESENTATIVE  GARA noted  that in  some robberies,  one is  not                                                               
injured  or   threatened  with  physical  injury,   and  in  some                                                               
robberies one  is threatened  with serious  physical injury.   He                                                               
said  he is  calling  into  question whether  they  should let  a                                                               
person  shoot someone  else during  a carjacking  - or  any other                                                               
form of  robbery - if the  person is not threatened  with serious                                                               
physical injury.                                                                                                                
MR. STANCLIFF mentioned that this  policy question has brought on                                                               
a lot of debate.   If a robber is coming  into one's home, should                                                               
one assume that the  robber means one no harm?   A vehicle can be                                                               
taken and  a person's life put  in danger because of  that theft,                                                               
and  the bill  is  proposing  to make  the  taking  of a  vehicle                                                               
similar  to the  entering of  a  home.   Furthermore, the  Senate                                                               
stipulated that  the term, "vehicle"  includes motor  vehicles as                                                               
defined  in AS  28.40.100,  aircraft, and  watercraft.   To  have                                                               
one's vehicle  stolen in  the middle of  February out  around Tok                                                               
could mean life or death.   He proffered that the policy question                                                               
for members is,  "How do you look  at someone that comes  up to a                                                               
vehicle,  opens the  door,  and wants  to throw  you  out on  the                                                               
street, versus  how do you look  at a person coming  through your                                                               
front  door in  the  middle of  the  night; do  we  look at  them                                                               
differently or not?"   As currently written, the  bill says [such                                                               
people] would not  be viewed differently, that one  has the right                                                               
to defend  his/her vehicle  with deadly  force if  one reasonably                                                               
believes that the use of deadly force is necessary.                                                                             
1:51:34 PM                                                                                                                    
REPRESENTATIVE GARA  argued, however, that as  written, one could                                                               
use deadly  force if  he/she believes  the use  of such  force is                                                               
necessary to stop the taking of  the car; there is no requirement                                                               
that one be  threatened with serious physical injury.   He asked,                                                               
"Do we  want to say you  can shoot somebody if  there's no danger                                                               
of serious physical injury when they're taking your car?"                                                                       
REPRESENTATIVE COGHILL  offered his  understanding that  the bill                                                               
is saying that  there is a presumption that one  has the right to                                                               
defend one's self and one's property.   If this right is misused,                                                               
he/she will be held accountable.   People are not being given the                                                               
right  to go  around  shooting  others but  rather  the right  to                                                               
defend themselves.   He opined  that it is  a mischaracterization                                                               
to say that people are being  given the right to kill someone for                                                               
a carjacking; a person must  have a reasonable belief that he/she                                                               
needs  to protect  himself/herself.   He  observed  that this  is                                                               
quite a bit different than what  he was proposing via the bill he                                                               
introduced -  HB 314 - because  that bill gave one  the right [to                                                               
use deadly force]  to protect one's self regardless  of where one                                                               
was.   One of  the problems with  not doing it  that way  is that                                                               
then there  is the need to  specify every situation in  which the                                                               
use of  deadly force  would be  justified.  Of  SB 200,  he said,                                                               
"We're saying you  have the right, you have a  presumption to the                                                               
right -  misuse that right  and it will  cost you; ...  but we're                                                               
saying to  those who  want to  take you're  car, your  life, your                                                               
children,  or  misuse children,  'Beware,  people  will have  the                                                               
right to protect [those things].'"                                                                                              
REPRESENTATIVE GRUENBERG relayed that while  in Miami, he and his                                                               
wife had  a briefcase taken  out of  their rental car  while they                                                               
were  in  it  after  the perpetrators  created  a  diversion  and                                                               
slashed  the car's  tires.   The  similarity between  that and  a                                                               
carjacking is that  it all happens very fast,  the victim doesn't                                                               
have a lot of  time to weigh the circumstances, and  it is a very                                                               
dangerous situation; also, if one  is removed from one's car, one                                                               
could get run  over by another car.  He  said he would appreciate                                                               
it if  proposed AS  11.81.350(g) was not  altered in  the fashion                                                               
proposed by Representative Gara.                                                                                                
1:56:07 PM                                                                                                                    
MR.  STANCLIFF, in  response  to a  question,  referred to  [what                                                               
later became known as Amendment 4 - text provided previously].                                                                  
REPRESENTATIVE  GRUENBERG  turned  the committee's  attention  to                                                               
language   on    page   2,   lines    22-26,   -    proposed   AS                                                               
11.81.330(a)(4)(C) - which read:                                                                                                
     (C)  acting  alone  or  with  others  in  revenge  for,                                                                
     retaliation  for, or  response to  actual or  perceived                                                                
     conduct by a  rival or perceived rival, or  a member or                                                                
     perceived member of a rival  group, if the person using                                                                
     deadly force, or  the group on whose  behalf the person                                                                
     is  acting, has  a history  or reputation  for violence                                                                
     among civilians; or                                                                                                    
REPRESENTATIVE  GRUENBERG  said  that although  he  supports  the                                                               
concept   behind  this   language   pertaining  to   gang-related                                                               
activities, it  seems to be  very convoluted language.   He asked                                                               
whether  this language  could be  simplified while  retaining the                                                               
meaning that if one is  involved in a gang-related situation, one                                                               
doesn't have the right to use deadly force.                                                                                     
MR. STANCLIFF mentioned that the  DOL has been wrestling with the                                                               
issue of gang-related  violence and this is the  best language it                                                               
could  come up  with  to describe  gang-related activity,  adding                                                               
that this  language has received  a lot of scrutiny  from various                                                               
law enforcement agencies.                                                                                                       
REPRESENTATIVE  GRUENBERG  referred  to  the  language,  "if  the                                                           
person  using deadly  force, or  the  group on  whose behalf  the                                                           
person is acting, has a  history or reputation for violence among                                                           
civilians,  and   offered  his  understanding  that   the  courts                                                           
generally frown upon the use  of "reputation evidence."  Trying a                                                               
person  on  the  basis  of  reputation  is  difficult  because  a                                                               
person's  reputation  can  vary  depending on  whose  opinion  is                                                               
sought.    He   said  he  is  somewhat   uncomfortable  with  the                                                               
aforementioned  language  because it  could  be  difficult for  a                                                               
court to apply it.   Additionally, the language, "in revenge for,                                                           
retaliation  for,  or response  to"  could  prove problematic  as                                                           
well.  Representative Gruenberg asked Mr. Guaneli to comment.                                                                   
MR.  GUANELI   mentioned  that  the   language  in   proposed  AS                                                               
11.81.330(a)(4)(C)  received  a lot  of  scrutiny  in the  Senate                                                               
Judiciary  Standing  Committee as  well  as  [by law  enforcement                                                               
officials] in Anchorage.  He went on to say:                                                                                    
     When trying to expand the  right of self defense, do we                                                                    
     run the risk of expanding  it to the point where people                                                                    
     involved  in illegal  organizations, gangs,  et cetera,                                                                    
     can  also use  that doctrine.    And so,  in trying  to                                                                    
     avoid that,  this [language] was  crafted ...  with the                                                                    
     idea  being to  try to  describe the  organizations [or                                                                    
     members  of those  organizations] that  you don't  want                                                                    
     ... able ... to claim self defense.                                                                                        
REPRESENTATIVE GRUENBERG  asked how "gang" is  defined [elsewhere                                                               
in statute].                                                                                                                    
MR.  GUANELI  mentioned  that AS  12.45.037  deals  with  "street                                                               
gangs," but said  he is not sure that that  statute has ever been                                                               
effectively applied in Alaska because  the gangs in Alaska cannot                                                               
be neatly  defined.   The goal is  to get at  groups that  in the                                                               
past  have used  violence  -  groups that  have  a  history or  a                                                               
reputation for violence  among civilians.  If  the legislature is                                                               
going to make history or  reputation for violence among civilians                                                               
an  element of  the  aforementioned provision,  then in  deciding                                                               
whether a particular  member of a particular  group was justified                                                               
in using  deadly force  against a  member of  a rival  group, the                                                               
court is  going to allow  in evidence of the  defendant's history                                                               
or reputation for violence.                                                                                                     
2:04:38 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  noted that AS  11.81.900(b)(13) defines                                                               
"criminal street gang" as:                                                                                                      
          (13) "criminal street gang" means a group of                                                                          
     three or more persons                                                                                                      
          (A) who have in common a name or identifying                                                                          
     sign, symbol,  tattoo or other physical  marking, style                                                                    
     of dress, or use of hand signs; and                                                                                        
          (B)    who,   individually,    jointly,   or    in                                                                    
     combination,  have committed  or  attempted to  commit,                                                                    
     within the  preceding three years, for  the benefit of,                                                                    
     at the direction of, or  in association with the group,                                                                    
     two or more  offenses under any of,  or any combination                                                                    
     of, the following:                                                                                                         
          (i) AS 11.41;                                                                                                         
          (ii) AS 11.46; or                                                                                                     
          (iii) a felony offense.                                                                                               
REPRESENTATIVE  GRUENBERG  remarked  that this  definition  seems                                                               
just  as  cumbersome  as  the  language  being  proposed  via  AS                                                               
11.81.330(a)(4)(C).   He suggested that future  legislation ought                                                               
to address  the issue of  providing for a really  good definition                                                               
of the term, "criminal street  gang".  That definition could then                                                               
be  used in  all the  other statutes  pertaining to  gang-related                                                               
MR.  GUANELI  agreed  that  the   current  definition  is  almost                                                               
2:06:30 PM                                                                                                                    
REPRESENTATIVE  GARA  referred  to   a  proposed  amendment  he'd                                                               
written;   that   proposed    amendment   [which   later   became                                                               
Amendment 3] read [original punctuation provided]:                                                                              
     P 5 line 3                                                                                                                 
     after "vehicle" add                                                                                                        
     and that involves physical injury to the person or an                                                                      
     occupant of the motor vehicle or the person reasonably                                                                     
     believes there is a threat of such physical injury                                                                         
REPRESENTATIVE  GARA   asked  whether   he  is  correct   in  his                                                               
understanding that as  currently written, the bill  would allow a                                                               
person to shoot  someone who's taking the car even  if the person                                                               
has no reasonable belief that he/she might be injured.                                                                          
MR. GUANELI  referred to language in  proposed AS 11.81.350(e)(1)                                                               
- page 4, lines 23-26 - which says:                                                                                             
     (e) A person                                                                                                               
          (1) in a vehicle, or forcibly removed from a                                                                          
     vehicle, may use deadly force  upon another when and to                                                                    
     the  extent  the  person   reasonably  believes  it  is                                                                    
     necessary  to  terminate  what  the  person  reasonably                                                                    
     believes to be a carjacking of that vehicle;                                                                               
MR. GUANELI  concurred that this  language does not  require that                                                               
the person  be in  any particular  danger of  injury in  order to                                                               
prevent the  taking of the car  via the use of  deadly force, but                                                               
added that carjacking inherently involves  a level of danger.  He                                                               
referred to proposed AS 11.81.350(e)(2),  and characterized it as                                                               
pertaining to  vehicle theft situations  in which the  driver was                                                               
already outside of the car and  someone else has been left in the                                                               
car; proposed AS 11.81.350(e)(2) read in part:                                                                                  
     (e) A person ...                                                                                                           
          (2) outside of a vehicle may use deadly force                                                                         
     upon  another  when  and  to   the  extent  the  person                                                                    
     reasonably believes  it is necessary to  terminate what                                                                    
     the person reasonably believes to  be the theft of that                                                                    
     vehicle when  another person, other than  the perceived                                                                    
     offender, is inside of the vehicle                                                                                         
MR. GUANELI  mentioned that this provision  doesn't require there                                                               
to be  a specific threat of  injury or danger to  the [driver] of                                                               
the  car,  and that  it  is  this  provision that  [Amendment  4]                                                               
proposes to alter.                                                                                                              
2:09:09 PM                                                                                                                    
REPRESENTATIVE GARA, with regard  to proposed AS 11.81.350(e)(1),                                                               
said  he would  like to  provide that  there must  at least  be a                                                               
threat  of  physical  injury  before one  can  use  deadly  force                                                               
against the  carjacker.   With regard  to AS  11.81.350(e)(2), he                                                               
characterized that as essentially a  kidnapping, and so he thinks                                                               
it reasonable to allow someone to  use deadly force even if there                                                               
is no threat of physical injury.                                                                                                
REPRESENTATIVE WILSON  suggested that  the threat  or possibility                                                               
of injury is  inherent in any situation where  someone refuses to                                                               
turn   over  a   belonging   and  starts   struggling  with   the                                                               
REPRESENTATIVE  GARA said  that if  a  person is  going to  start                                                               
fighting  with the  carjacker, then  he wants  that person  to be                                                               
able to  use [deadly] force  to protect himself/herself,  but not                                                               
if there is no danger of harm.                                                                                                  
REPRESENTATIVE  WILSON surmised,  "In  other words,  you have  to                                                               
fight a little bit before you shoot him."                                                                                       
REPRESENTATIVE GARA  countered, "They have  to hurt you  a little                                                               
REPRESENTATIVE  COGHILL noted  that  AS 11.81.350(e)(1)  includes                                                               
the phrase,  "forcibly removed from  a vehicle", and  pointed out                                                               
that if  a person is being  pulled from a car,  he/she won't know                                                               
what might happen  next - won't know whether  the carjacker poses                                                               
no threat.                                                                                                                      
MR. STANCLIFF  relayed that  member's packets  include statistics                                                               
from other  states illustrating that once  potential perpetrators                                                               
find  out that  victims are  allowed to  use deadly  force, crime                                                               
rates have dropped.   He said that although some  mistakes may be                                                               
made, the  question is whether  it is time  to allow a  person to                                                               
use  deadly  force  to  protect   an  investment  worth  $30,000,                                                               
$40,000, or even $50,000 -  an investment that might contain kids                                                               
or  a  spouse.    Mr.   Stancliff  remarked  that  Representative                                                               
Wilson's  point is  that  under  Representative Gara's  suggested                                                               
change, if one  just backs down and isn't  threatened, one cannot                                                               
shoot a carjacker, whereas if one  puts of a struggle, he/she can                                                               
shoot a carjacker.   He opined that [this  legislation] will make                                                               
a difference regarding the number of carjackings that occur.                                                                    
MR. STANCLIFF,  in response to  a question, relayed  that Florida                                                               
has  the most  conservative  castle doctrine  law  and had  broad                                                               
bipartisan support - crime levels  in Florida, particularly those                                                               
related to carjacking or the  type of offense that Representative                                                               
Gruenberg  experienced, were  astronomical  in some  areas -  and                                                               
that law is  making a difference.  People [in  Florida] are armed                                                               
and are  protecting their property  and, in many  instances, it's                                                               
saving their  lives or the  lives of  their loved ones,  and that                                                               
fact  has to  be  weighed against  the  possibility that  perhaps                                                               
someone might use [deadly] force  inappropriately.  But under the                                                               
bill,  such instances  will be  dealt with  in court  anyway; the                                                               
bill is not simply providing people with a license to shoot.                                                                    
2:14:25 PM                                                                                                                    
REPRESENTATIVE  GARA made  a motion  to adopt  Amendment 3  [text                                                               
provided previously.                                                                                                            
REPRESENTATIVE COGHILL and CHAIR McGUIRE objected.                                                                              
REPRESENTATIVE  GARA explained  that  Amendment  3 would  require                                                               
that  before  a person  can  use  deadly  force in  a  carjacking                                                               
situation, there  must be  some threat of  physical injury.   "If                                                               
somebody  grabs  you  and  throws  you out  of  the  car,  that's                                                               
physical  injury  - you  can  defend  yourself  with a  gun,"  he                                                               
remarked.    However, in  addition  to  addressing situations  in                                                               
which  one is  forcibly  removed  from a  car,  the language  [in                                                               
proposed AS 11.81.350(e)(1)]  would also allow one  to use deadly                                                               
force  on someone  who is  simply  taking the  car.   He said  he                                                               
doesn't  want there  to  be a  circumstance  where [a  carjacker]                                                               
steals a car  from someone without hurting him/her  and then gets                                                               
shot while driving away.                                                                                                        
REPRESENTATIVE  COGHILL again  pointed  out that  a person  won't                                                               
know  what  will happen  when  a  carjacker  takes  a car  -  the                                                               
carjacker could decide  to run over the person -  and so a person                                                               
should have the right to stand one's ground.                                                                                    
REPRESENTATIVE  ANDERSON reminded  members  that  last year,  the                                                               
previous  committee  aide  and  her  mother  were  victims  of  a                                                               
carjacking -  the perpetrators physically  dragged them  from the                                                               
vehicle  and drove  off with  both the  committee aide's  dog and                                                               
Chair  McGuire's dog  in the  vehicle.   Representative  Anderson                                                               
asked  Representative   Gara  whether  he  feels   that  in  that                                                               
circumstance, the victims shouldn't have  been able to use deadly                                                               
REPRESENTATIVE GARA said that in  that scenario the victims would                                                               
be  able  to  use  deadly force  because  the  perpetrators  used                                                               
substantial  force in  dragging the  victims  from the  car.   He                                                               
again said that he doesn't want  someone to use deadly force on a                                                               
carjacker  as he/she  is driving  away if  the carjacker  doesn't                                                               
hurt the victim.                                                                                                                
REPRESENTATIVE ANDERSON acknowledged that point.                                                                                
MR.  GUANELI, in  response to  a question,  explained that  under                                                               
existing law,  if someone  comes into a  person's home,  robs it,                                                               
and  then leaves,  the person  may not  shoot the  perpetrator as                                                               
he/she  is  leaving, because  the  use  of  deadly force  is  not                                                               
necessary for defense of self at that point.                                                                                    
2:20:47 PM                                                                                                                    
REPRESENTATIVE  KOTT  observed   the  similarities  between  that                                                               
scenario  and  the  one  involving a  carjacker  fleeing  with  a                                                               
MR.  STANCLIFF offered  his interpretation  that the  language in                                                               
[in proposed  AS 11.81.350(e)(1)] is meant  to address situations                                                               
in which either  the person is forcibly removed  from the vehicle                                                               
or the person  is still in the vehicle when  the carjacker drives                                                               
REPRESENTATIVE    KOTT    offered    his    understanding    that                                                               
Representative  Gara   was  focusing  on  situations   where  the                                                               
carjacker is  able to take the  car away without using  force but                                                               
is then shot while driving off,  adding that he was simply trying                                                               
to  draw  an analogy  between  that  scenario and  one  involving                                                               
someone  getting  shot while  fleeing  a  house he/she  has  just                                                               
MR. GUANELI  remarked that in  a carjacking situation,  one would                                                               
ultimately  be  protecting   property,  and  again  characterized                                                               
carjacking  as  an  inherently  dangerous  activity  that  almost                                                               
always puts  the victim at  risk.  He  agreed that in  the former                                                               
committee aide's situation, under the  bill, they would have been                                                               
allowed to draw a gun and  start firing, adding that that doesn't                                                               
look a  whole lot different  than the example involving  a robber                                                               
getting shot  after leaving house.   He suggested that  the issue                                                               
of proximity  to the perpetrators  could make a difference  - for                                                               
example, if  the perpetrators are  still right there in  front of                                                               
the person  after throwing him/her  to the ground versus  if they                                                               
are 200  yards down the  road.  At  some point, the  person would                                                               
not  have the  right to  shoot, just  as at  some point  a person                                                               
doesn't  have  the  right  to shoot  someone  who's  just  robbed                                                               
his/her home; at  some point the danger is no  longer eminent and                                                               
the necessity  of using force  dissipates.  Furthermore,  at some                                                               
point the carjacking stops, just as  at some point the robbery of                                                               
a person's home stops; in the  latter case, that point is usually                                                               
when the robber leaves the house.                                                                                               
MR. GUANELI pointed out, however,  that a carjacking happens very                                                               
fast  and  it occurs  in  the  victim's immediate  vicinity,  and                                                               
surmised that  it is those  circumstances the bill  is attempting                                                               
to  address rather  than circumstances  where the  carjackers are                                                               
already 200 yards down the road.                                                                                                
REPRESENTATIVE COGHILL  again remarked  that a  carjacking victim                                                               
faces the  risk that he/she  will be  run over by  the carjacker,                                                               
again  reiterating his  point that  a  victim won't  know what  a                                                               
carjacker intends after throwing the victim from the vehicle.                                                                   
REPRESENTATIVE KOTT pointed  out that before a  carjacker can run                                                               
a  victim over,  he/she has  to  drive the  car either  backwards                                                               
forwards, and by that  time the victim can have a  gun out and be                                                               
firing at  the carjacker.   He said  that if it  were him  and it                                                               
looked like he was in eminent  danger of being run over, he would                                                               
be firing his gun at the carjacker.                                                                                             
2:26:08 PM                                                                                                                    
REPRESENTATIVE GRUENBERG opined that  there are problems with the                                                               
current language in  the bill.  For example,  currently under the                                                               
bill,  because a  carjacking is  not  over until  it's over,  one                                                               
could give chase and be firing  at a carjacker for miles down the                                                               
road.   He  suggested  that  they alter  the  bill  such that  it                                                               
focuses on  situations in  which the  carjacking is  not complete                                                               
and  the carjacker  has  not  left the  scene  with the  vehicle.                                                               
Seldom will  a carjacking  occur, he  posited, without  some risk                                                               
that other people are either present  at the scene, could show up                                                               
at the scene, or be in  the vicinity during any subsequent chase.                                                               
Therefore, if  one is allowed to  shoot at a carjacker,  it ought                                                               
to  only  be when  the  victim  is at  very  close  range to  the                                                               
carjacker, before  the car leaves  the scene, and not  during any                                                               
ensuing chase.                                                                                                                  
REPRESENTATIVE ANDERSON acknowledged that point.                                                                                
MR.  STANCLIFF, in  response  to a  question,  relayed that  this                                                               
topic  was discussed  when  the  bill was  heard  in the  Senate.                                                               
Specifically, should someone be allowed  to just spray bullets at                                                               
an  attacker   in  a   shopping  mall.     He  stated   that  his                                                               
understanding  is  that Section  6  of  the  bill -  proposed  AS                                                               
11.81.350(e)-(g)  -  allows the  use  of  deadly force  in  three                                                               
situations:   a person is in  the vehicle and is  never taken out                                                               
of  the  vehicle during  the  carjacking;  a person  is  forcibly                                                               
removed from  the vehicle during  the carjacking; or a  person is                                                               
outside of  the vehicle  during the  carjacking but  someone else                                                               
who is  not the  perpetrator is  in the vehicle.   The  first two                                                               
situations  are addressed  via proposed  AS 11.81.350(e)(1),  and                                                               
the   third    situation   is    addressed   via    proposed   AS                                                               
CHAIR McGUIRE asked  about situations wherein animals  are in the                                                               
MR. STANCLIFF remarked  that animals could added  to [proposed AS                                                               
REPRESENTATIVE GRUENBERG opined that  the language in proposed AS                                                               
11.81.350(e)(1) is  too broad  because it  could be  construed to                                                               
mean that one could shoot  a carjacker from another vehicle while                                                               
giving chase,  particularly given that  one would always be  in a                                                               
state of having  been forcibly removed from a  vehicle after such                                                               
has occurred.                                                                                                                   
REPRESENTATIVE GARA withdrew Amendment 3.                                                                                       
2:31:15 PM                                                                                                                    
REPRESENTATIVE COGHILL made  a motion to adopt  Amendment 4 [text                                                               
provided previously].                                                                                                           
REPRESENTATIVE   GRUENBERG   objected   [for   the   purpose   of                                                               
discussion],  and noted  that Amendment  4 focuses  on situations                                                               
involving  disputes  between  household   members  but  does  not                                                               
stipulate who might be doing  the shooting; under Amendment 4, in                                                               
a  domestic violence  situation  involving the  taking  of a  car                                                               
while  others in  the car,  neither party  would be  justified in                                                               
using deadly force.                                                                                                             
MR.  STANCLIFF relayed  that  that point  was  raised by  Senator                                                               
REPRESENTATIVE    GRUENBERG,   characterizing    that   [proposed                                                               
provision] as a good idea, then removed his objection.                                                                          
CHAIR McGUIRE asked whether there  were any further objections to                                                               
Amendment 4.  There being none, Amendment 4 was adopted.                                                                        
2:33:46 PM                                                                                                                    
CHAIR McGUIRE made a motion to  adopt Amendment 5, to add on page                                                               
4, line 30,  the words, "or a pet" before  the phrase, "is inside                                                               
of  the vehicle".   She  characterized  situations involving  the                                                               
taking of  a car while  pets are inside as  serious, particularly                                                               
given that for some people, their pets are like their children.                                                                 
REPRESENTATIVE COGHILL and REPRESENTATIVE GRUENBERG objected.                                                                   
CHAIR McGUIRE withdrew Amendment 5.                                                                                             
2:35:30 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked Mr.  Stancliff whether the sponsor                                                               
would be  amenable to altering  proposed AS  11.81.350(e)(1) such                                                               
that the  use of deadly force  during a carjacking would  only be                                                               
permitted at or about the time  that the vehicle was taken.  Such                                                               
a  change  could  prevent  high-speed   car  chases  with  people                                                               
shooting at each other.                                                                                                         
MR. STANCLIFF  offered his understanding  that there would  be no                                                               
problem  with clarifying  that there  is  some sort  of zone-  or                                                               
time-proximity in which the use of  deadly would be allowed.  One                                                               
shouldn't be  allowed to fire shots  down a busy street  at a car                                                               
300 yards away.                                                                                                                 
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
Amendment 6,  to alter proposed  AS 11.81.350(e)(1) such  that it                                                               
would apply to, "at or about the time the vehicle is taken".                                                                    
CHAIR   McGUIRE  surmised   that  the   idea  behind   Conceptual                                                               
Amendment 6 is that  there will be point at which  the ability to                                                               
use deadly force in a carjacking situation will end.                                                                            
REPRESENTATIVE COGHILL  opined that the current  language already                                                               
seems to embody  that concept, and that it  would be indefensible                                                               
to  follow  a  carjacker  and   shoot  him/her  just  to  recover                                                               
2:38:15 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG pointed  out that  a carjacking  is not                                                               
over until the  car is back in the possession  of the person from                                                               
whom it  was taken, and the  language currently in the  bill says                                                               
that one  can use deadly  force to  terminate a carjacking.   His                                                               
concern is this  could be interpreted by the courts  to mean that                                                               
one would be  justified in chasing down the  vehicle and shooting                                                               
the  carjacker  in  order  to   recover  the  vehicle  -  thereby                                                               
terminating  the  carjacking.   Amendment  6  would clarify  this                                                               
point for the courts.                                                                                                           
REPRESENTATIVE COGHILL  indicated that he  is of the  belief that                                                               
once the car has been taken, the carjacking is over.                                                                            
REPRESENTATIVE GRUENBERG  disagreed; it is still  a carjacking as                                                               
long as the carjackers have the vehicle in their possession.                                                                    
CHAIR McGUIRE said  that in her view, once a  car has been taken,                                                               
it is  no longer  a carjacking; instead  the carjacker  is merely                                                               
proceeding on with a piece of stolen property.                                                                                  
MR.  GUANELI said  he agrees  with  everybody:   for purposes  of                                                               
charging someone with a crime,  Representative Coghill is correct                                                               
- once  the car is taken  from a person's control,  the carjacker                                                               
can be charged  with the crime of robbery; for  purposes of using                                                               
deadly force, however, Representative  Gruenberg has a point that                                                               
a  reasonable person  may  interpret the  language  to mean  that                                                               
he/she  can "prevent"  the carjacking  by going  and getting  the                                                               
vehicle back.  Mr. Guaneli  remarked that as prosecutors, the DOL                                                               
would  be  inclined  to apply  the  provision  as  Representative                                                               
Coghill would, and say that a  person would not have the right to                                                               
go chasing  after and shooting  at a  carjacker once the  car has                                                               
been driven  away; on the  other hand,  a judge might  instruct a                                                               
jury regarding  the law  of self  defense just  as Representative                                                               
Gruenberg foresees.                                                                                                             
REPRESENTATIVE  GRUENBERG  offered  his  understanding,  however,                                                               
that under  the rule  of lenity,  if there  is any  question, the                                                               
court  must  apply  "it"  to   benefit  the  defendant,  and  the                                                               
defendant  in  these scenarios  would  be  the person  doing  the                                                               
REPRESENTATIVE  COGHILL  removed   his  objection  to  Conceptual                                                               
Amendment 6.                                                                                                                    
CHAIR McGUIRE asked whether there  were any further objections to                                                               
Conceptual   Amendment  6.      There   being  none,   Conceptual                                                               
Amendment 6 was adopted.                                                                                                        
2:42:07 PM                                                                                                                    
REPRESENTATIVE  ANDERSON moved  to  report CSSB  200(FIN) am,  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying [zero] fiscal note.                                                                                            
REPRESENTATIVE GARA objected  for the purpose of  discussion.  He                                                               
said to Mr. Stancliff that to  the extent that the sponsor wishes                                                               
to  work further  on the  bill, the  problem with  the carjacking                                                               
provision is  that there doesn't have  to be any threat  to one's                                                               
personal  safety  and yet  one  can  still shoot  the  carjacker.                                                               
Representative Gara relayed  that he would be happy  to work with                                                               
the sponsor on this issue.                                                                                                      
MR. STANCLIFF agreed to relay that message to the sponsor.                                                                      
REPRESENTATIVE GARA then removed his objection.                                                                                 
CHAIR McGUIRE asked whether there  were any further objections to                                                               
reporting CSSB 200(FIN) am, as  amended, out of committee.  There                                                               
being  no objection,  HCS  CSSB 200(JUD)  was  reported from  the                                                               
House Judiciary Standing Committee.                                                                                             

Document Name Date/Time Subjects