Legislature(2007 - 2008)CAPITOL 120

05/03/2007 01:30 PM JUDICIARY

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HB 225-POSSESSION OF WEAPON WHILE ON BAIL                                                                                     
1:36:33 PM                                                                                                                    
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE  BILL NO.  225, "An  Act relating  to misconduct  involving                                                               
weapons  and  bail."   [Before  the  committee was  the  proposed                                                               
committee  substitute  (CS)  for  HB  225,  Version  25-LS0710\M,                                                               
Luckhaupt, 4/11/07, which  had been adopted as the  work draft on                                                               
4/13/07 and amended on 4/30/07.                                                                                                 
1:37:05 PM                                                                                                                    
REPRESENTATIVE  DAHLSTROM made  a motion  to [adopt  the proposed                                                               
committee  substitute  (CS)  for  HB  225,  Version  25-LS0710\K,                                                               
Luckhaupt,  5/1/07,  as   the  work  draft].     There  being  no                                                               
objection, Version K was before the committee.                                                                                  
1:37:17 PM                                                                                                                    
JEANNE  OSTNES, Staff  to  Representative  Craig Johnson,  Alaska                                                               
State  Legislature,  after noting  that  members  should have  in                                                               
their  packets  a  letter from  the  National  Rifle  Association                                                               
(NRA), stated that  she has been working with the  NRA to address                                                               
its  concerns  with  the  bill.     To  that  end,  the  proposed                                                               
amendment, labeled  25-LS0710\K.1, Luckhaupt,  5/3/07, [Amendment                                                               
1] came at the request of the NRA.                                                                                              
MS. OSTNES, in  response to a question, indicated  that Version K                                                               
no  longer   contains  Version  M's   proposed  addition   of  AS                                                               
12.30.018; this change,  via Amendment 1 to Version  M, also came                                                               
at the request of the NRA.                                                                                                      
1:42:24 PM                                                                                                                    
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal Division, Department  of Law (DOL), in response                                                               
to a question,  stated that proposed AS  12.30.018 mandates under                                                               
Title 11 that  a person on release, before and  after trial for a                                                               
felony, not  possess a concealed  firearm.  The deletion  of this                                                               
provision  necessitated  altering  the  statutory  references  in                                                               
Section  1 of  Version K;  Section 1  now references  proposed AS                                                               
11.61.200(a)(13)and  AS 11.61.210(a)(9).    These provisions  are                                                               
addressing those circumstances  in which the bill  would create a                                                               
higher  crime for  carrying  concealed in  violation  of a  court                                                               
order not to while out on bail.                                                                                                 
MS. CARPENETI further  stated that currently it is  a crime under                                                               
AS 11.56.757  for any  person to violate  a condition  imposed by                                                               
the court in connection with a  bail release.  This bill, HB 225,                                                               
makes these  crimes a  class C  felony or  a class  A misdemeanor                                                               
under certain circumstances.                                                                                                    
1:44:38 PM                                                                                                                    
MS.  OSTNES noted  that  in a  letter from  Brian  Judy, the  NRA                                                               
wanted to make sure the court  had the full discretion to choose.                                                               
The proposed amendment  labeled 25-LS0710\K.1, Luckhaupt, 5/3/07,                                                               
addresses this request.                                                                                                         
REPRESENTATIVE GRUENBERG  noted his agreement with  Mr. Judy that                                                               
the court needs discretion.                                                                                                     
CHAIR RAMRAS asked if DOL supported the changes to Version K.                                                                   
MS. CARPENETI  offered her belief  that she has no  concerns with                                                               
someone  out on  bail  not  being allowed  to  carry a  concealed                                                               
weapon.   The judge  already has  the discretion  with sentencing                                                               
and this has not changed.  This bill just raises the penalties.                                                                 
1:46:35 PM                                                                                                                    
CHAIR RAMRAS expressed concern that  the bill has been changed by                                                               
many degrees.  He asked whether the bill still does anything.                                                                   
MS. OSTNES responded that the  bill now separates misdemeanor and                                                               
felony.   Currently, if an  individual is carrying a  firearm, in                                                               
violation of condition of release, it is a misdemeanor.                                                                         
CHAIR  RAMRAS questioned  whether  it depends  upon whether  [the                                                               
initial charge] was for a misdemeanor or a felony.                                                                              
MS.  OSTNES replied  that,  without this  bill,  if someone  were                                                               
charged  with  carrying  a  concealed  weapon,  he/she  would  be                                                               
charged with  a misdemeanor,  whether the  original charge  was a                                                               
misdemeanor or  a felony.   Under the  bill, an  individual would                                                               
now  be  charged  with  a   second  misdemeanor  for  carrying  a                                                               
concealed weapon, if  the original charge was  for a misdemeanor.                                                               
Furthermore, the  bill would cause  an individual charged  with a                                                               
felony  to  receive a  second  felony  charge  for a  carrying  a                                                               
concealed weapon.                                                                                                               
1:49:05 PM                                                                                                                    
MS. OSTNES  further explained that on  pages 3 and 5,  HB 225 now                                                               
includes AS  47.12.080, which pertains  to juveniles.   Juveniles                                                               
are not  released on bail,  but on  "condition of release".   The                                                               
inclusion of  AS 47.12.080 would  mean a juvenile is  now subject                                                               
to  the same  conditions as  an adult.   Finally,  in Section  3,                                                               
Version  M,  AS  12.30.018,  was   removed.    This  removed  the                                                               
mandatory aspect, as requested by  Representative Coghill and the                                                               
NRA.    It  is  now  the judge's  discretion,  she  pointed  out.                                                               
[Version K, which was now  before the committee, does not include                                                               
AS 12.30.018 in Section 3.]                                                                                                     
1:51:02 PM                                                                                                                    
MS. OSTNES related that Amendment  1 would clarify that knowingly                                                               
possessing a  firearm that is  concealed on the person  while the                                                               
person  is   on  release  under  AS   12.30.020-12.30.040  is  in                                                               
violation of a condition imposed by the court.                                                                                  
CHAIR  RAMRAS made  a motion  to adopt  Amendment 1,  labeled 25-                                                               
LS0710\K.1, Luckhaupt, 5/3/07, which read:                                                                                      
     Page 3, line 15, following "(A)":                                                                                      
          Insert "in violation of a condition imposed by                                                                    
     the court"                                                                                                             
     Page 5, line 3, following "(A)":                                                                                       
         Insert "in violation of a condition imposed by                                                                     
     the court"                                                                                                             
There being no objection, Amendment 1 was adopted.                                                                              
CHAIR  RAMRAS  asked  the  committee to  review  Version  K  with                                                               
Amendment 1 and then, seek the  point of view of Captain Cobb and                                                               
Brian Judy.                                                                                                                     
MS.  OSTNES, in  response to  comments and  questions, reiterated                                                               
that this amendment is a clarification  at the request of the NRA                                                               
and that it be inserted on page 3.                                                                                              
1:52:41 PM                                                                                                                    
REPRESENTATIVE  HOLMES asked  whether  the  language inserted  on                                                               
page  3, line  15,  subparagraph  (A), should  also  be added  to                                                               
subparagraph (B).                                                                                                               
MS. CARPENETI responded that it was unnecessary.                                                                                
1:53:09 PM                                                                                                                    
CHAIR  RAMRAS related  his understanding  that  the bill  sponsor                                                               
does not want to violate the "right to bear arms."                                                                              
1:54:16 PM                                                                                                                    
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute  for Legislative  Action  (NRA-ILA),  shared the  NRA's                                                               
concerns  with   Version  K  including  the   automatic  penalty.                                                               
Amendment 1  addresses that concern  whereby the  court maintains                                                               
discretion.  The second concern pertains  to the felony.  The NRA                                                               
believes it  is not appropriate to  subject a person to  a felony                                                               
simply  for being  accused of  a  prior offense.   Therefore,  he                                                               
suggested  including  language  stating that  if  the  underlying                                                               
felony is  dismissed, then  the subsequent  felony would  also be                                                               
CHAIR RAMRAS  added this was  the same concern  as Representative                                                               
REPRESENTATIVE  LYNN  opined  that   regardless  of  whether  the                                                               
individual  was found  not  guilty of  the  original offense,  he                                                               
still  "spit  in  the  face  of  the  court",  by  violating  the                                                               
condition of bail.  He asked if this is a separate issue.                                                                       
MR. JUDY responded this would be  a violation of the order of the                                                               
court.   Existing law makes  this a  class A misdemeanor,  if the                                                               
underlying charge  is a felony.   The  NRA's concern is  that the                                                               
proposed law  would make  the current misdemeanor  a felony.   He                                                               
referred to  an example from his  letter to the committee.   Even                                                               
though  someone  may  know  his/her  own  innocence,  he/she  may                                                               
violate the order of the court  for personal protection.  Even if                                                               
he/she  is found  innocent, he/she  can still  lose the  right to                                                               
bear arms  because of the  subsequent felony charge.   The felony                                                               
charge does not seem to be appropriate, he opined.                                                                              
1:58:37 PM                                                                                                                    
MS. CARPENETI  acknowledged NRA's  concern, but pointed  out that                                                               
the concept of going back and  making a person innocent would not                                                               
work.   There  has already  been a  probable cause  determination                                                               
that the  person should be held  to answer for charges.   This is                                                               
all discretionary with the court, she  noted.  The court has made                                                               
a  determination  that for  the  safety  of the  community,  this                                                               
person should not carry concealed.   Then, to say that the person                                                               
can  make that  decision on  his/her own  is something  the court                                                               
cannot condone.                                                                                                                 
CHAIR RAMRAS  commented that  he agrees  with both  Ms. Carpeneti                                                               
and Mr.  Judy.  This  difficulty means the  bill is not  ready to                                                               
pass out of the committee, he related.                                                                                          
2:00:23 PM                                                                                                                    
GARDNER  COBB,   Captain,  Anchorage  Police   Department  (APD),                                                               
offered  that the  problems, specifically  the levels  of firearm                                                               
violence,  in  Anchorage  are  different   than  those  in  other                                                               
communities.  The Anchorage Police  Department has probable cause                                                               
and evidence  before an arrest  is made.   He related  his belief                                                               
that  law abiding  citizens have  the right  to carry  arms.   By                                                               
going through  a magistrate,  the district  attorney, or  a Grand                                                               
Jury, the  police department operates  in a system of  checks and                                                               
balances for  probable cause.   A  law-abiding citizen  would not                                                               
disobey a  judge's direct order.   Raising this to a  felony is a                                                               
positive step.  However, he said,  there is still a lot more that                                                               
can be done to assist law enforcement in doing their job.                                                                       
2:03:08 PM                                                                                                                    
CHAIR  RAMRAS  asked  whether  passing  the  bill  will  actually                                                               
accomplish anything.                                                                                                            
MR. COBB responded that the  APD, in a recent operation, arrested                                                               
more than  50 people  and recovered  24 guns.   He did  not think                                                               
this bill would make a widespread  big difference.  The APD needs                                                               
to identify the violent offenders, and put them in jail.                                                                        
CHAIR RAMRAS said he understands  how this affects guilty people,                                                               
but he  does not know how  this will affect innocent  people, who                                                               
are then subsequently found guilty of the secondary offense.                                                                    
2:05:38 PM                                                                                                                    
REPRESENTATIVE DAHLSTROM  offered that  she is supportive  of any                                                               
law  that "gets  the bad  guy", but  she was  worried about  "the                                                               
unintended consequences."   If she was in the  position of having                                                               
to protect her  family, the law would not stop  her from carrying                                                               
concealed, she said.                                                                                                            
MS. OSTNES  highlighted that  the law  only applies  to concealed                                                               
weapons, not visible weapons.                                                                                                   
2:08:35 PM                                                                                                                    
MR. JUDY indicated Version K still  raises a concern with the NRA                                                               
due to the  potential felony charge for a person  only accused of                                                               
an offense.   The NRA  is concerned for  the rights of  those who                                                               
have only been accused, but not convicted, of a prior offense.                                                                  
2:09:39 PM                                                                                                                    
REPRESENTATIVE  LYNN said  although  he  understood the  concern,                                                               
still he  was not  able to  condone "spitting in  the eye  of the                                                               
court."    Therefore, he  questioned  whether  there might  be  a                                                               
middle ground, such that, a  person found innocent would have the                                                               
subsequent carrying concealed lowered to a misdemeanor.                                                                         
MS. CARPENETI  expressed concern with  having a provision  in law                                                               
dismissing a  crime if an  individual were found innocent  of the                                                               
underlying  crime,  even  though   there  was  a  probable  cause                                                               
indictment with the court finding that individual dangerous.                                                                    
REPRESENTATIVE LYNN  clarified that  he did  not want  the charge                                                               
dismissed, merely lowered to a misdemeanor.                                                                                     
2:11:11 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG offered  an  analogy illustrating  that                                                               
point in time when one is  charged with an underlying crime, it's                                                               
not known  whether he/she  will be found  guilty of  the original                                                               
crime.  Referring to [Perkins  and Boyce's Cases and Materials on                                                             
Criminal Law and Procedure], he compared  the case at hand to the                                                             
law on escape.                                                                                                                  
The committee took an at-ease from 2:12 p.m. to 2:14 p.m.                                                                       
2:14:40 PM                                                                                                                    
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
REPRESENTATIVE  GRUENBERG  read from  page  506  of [Perkins  and                                                             
Boyce's  Cases and  Materials on  Criminal Law  and Procedure],as                                                             
follows,  "... On  the other  hand the  fact that  a prisoner  is                                                               
innocent of the offense, for which  he was arrested, is no excuse                                                               
for his  unpermitted departure from  legal custody."   He offered                                                               
that this  is general  policy; the reason  being the  law doesn't                                                               
permit people to take the law into  their own hands.  A person is                                                               
not being  penalized for being  under indictment; but  rather for                                                               
violating a court order.                                                                                                        
2:17:59 PM                                                                                                                    
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
MR.  COBB, in  agreement  with  Representative Gruenberg's  legal                                                               
analogy, stated  he was sure that  many of those arrested  with a                                                               
firearm were told  by the judge not to carry  a firearm; but many                                                               
in the  gang culture lifestyle were  in the habit of  not obeying                                                               
what people in authority tell them.                                                                                             
2:18:39 PM                                                                                                                    
CHAIR RAMRAS set HB 225 aside,  to allow the sponsor to reconcile                                                               
these two  unique points of  view, with  regard to the  charge of                                                               
carrying concealed.   The DOL has  stated that if one  is charged                                                               
with  a  felony or  a  misdemeanor,  then the  subsequent  charge                                                               
should  be  maintained regardless  of  the  final ruling  on  the                                                               
initial charge.   The NRA believes, however, that  if the initial                                                               
charge is dropped, then the  subsequent charge should be dropped,                                                               
as well.                                                                                                                        
REPRESENTATIVE  GRUENBERG professed  his  understanding that  the                                                               
supreme court  had addressed  this issue,  and supported  the DOL                                                               
2:19:49 PM                                                                                                                    
MS.  CARPENETI  offered  to research  the  ruling  Representative                                                               
Gruenberg described.                                                                                                            
[HB 225 was held over.]                                                                                                         

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