Legislature(2003 - 2004)
04/08/2003 08:02 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 102-CONCEALED DEADLY WEAPONS LEGAL CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 102, "An Act relating to concealed deadly weapons." Number 0759 REPRESENTATIVE ERIC CROFT, Alaska State Legislature, sponsor of HB 102, suggested that the committee work from the proposed committee substitute (CS), Version I, labeled 23-LS0515\I, Luckhaupt, 4/2/03. REPRESENTATIVE CROFT noted that the original bill didn't deal with the age requirement, whereas Version I would set the age requirement at 21. He explained, "We really do mean to keep all the substantive restrictions on gun ownership, except the requirement to get the permit." He said there are 18- and 19- year-olds currently fighting in Iraq, using firearms. Notwithstanding that, for the purposes of the bill, Representative Croft said he didn't want to make any changes except getting rid of the requirement to get the concealed-carry permit. Number 0915 REPRESENTATIVE CROFT noted that "the old law" said a person can carry a concealed weapon if that person is a permittee, is on his/her own land, or is engaged in hunting or fishing activities. It also said a person who is a permittee and is stopped by [a police] officer is under an affirmative obligation to tell the officer if he/she is carrying a weapon and to allow that officer to secure that weapon, if necessary. As a technical matter, he pointed out that if a police officer approaches a person who is carrying concealed on his/her own land without a permit, that person is under no obligation to tell the officer. Representative Croft said [the same applies to someone who is] hunting or fishing. He continued as follows: We have made that a general requirement of the criminal law. So now you don't have to have a permit, but you have the general requirement, when stopped by an officer, to say - if you're carrying concealed - that you are: "Hello officer. By the way, I have a [45-caliber pistol] here under my coat." So, in that sense, when we did not originally intend it, it is tightening of the law somewhat; it is putting an affirmative obligation - I think a reasonable one - on everybody. You can carry concealed, generally, but you have the more general requirement now to tell an officer when he comes. REPRESENTATIVE CROFT noted that this language is on the bottom of page 1 and the top of page 2 [in Version I]; the added language pertaining to the age restriction is found on page 2, lines 20-22. Number 1092 REPRESENTATIVE CROFT indicated concern previously expressed by a member regarding a list of permittees. He referred to the bottom of page 3 and the top of page 4, where he said the requirement to compile a list of permittees was removed and the idea that permits or renewals are not public records was [retained]. He explained: If we deleted the whole section, and they decided to keep a list, we would have technically allowed them to distribute it, which was ... never the intent. So right now, they can keep a list or not, as they choose. But if they do, it's not public records under [AS] 40.25.110. REPRESENTATIVE CROFT said he appreciated members' comments made during the prior hearing on HB 102. Number 1158 REPRESENTATIVE HOLM referred to previous discussion regarding this requirement of informing when a person has a weapon. He asked if it is currently in law that if [a police officer] stops a vehicle and there is a weapon in the glove compartment, for example, that weapon is considered a concealed weapon and [the person who was stopped] must inform [the officer]. REPRESENTATIVE CROFT answered as follows: Right now, you would be in one of two situations. If it's sort of within your control and it's concealed under a coat on the seat next to you [or] in the glove compartment readily accessible to you, then, yes, it's a concealed weapon. And one of two things: either you have [a] permit - in which case you're under the affirmative duty to tell them - or you don't have a permit, in which case you're committing an illegal act. The general duty to inform was placed on permittees. You didn't need to on the other, because it wasn't illegal for you to carry without the permit anyway. Number 1256 REPRESENTATIVE SEATON referred to a question asked [during a prior hearing] regarding knives. Saying he didn't see the answer addressed, he remarked, "A sheath knife was not permitted." REPRESENTATIVE CROFT responded, "And now that we have allowed it, it is." He said it was a good question and mentioned "a somewhat complicated and tortuous path." He explained: Before, you had to have the hunting or fishing exception. So on your boat you could have the sheath knife, even concealed, but you could not, as a general rule, walk down the street with it concealed. Now that we have made ... the possession of a concealed deadly weapon ... no longer criminal, that has solved that problem. It also led us into the idea of pipe bombs [that] somebody mentioned in their last committee meeting. Pipe bombs are explosives, and separately criminalized, higher than this level. So, while "deadly weapon" includes "explosive", "explosive" is separately, specifically, and more clearly charged at a higher level. Knives and pipe bombs out, in other words, Representative [Seaton]. Number 1356 REPRESENTATIVE SEATON referred to an exception on page 2, line 21, regarding ordinary pocket knives. REPRESENTATIVE CROFT referred to AS 11.61.220(a), which read in part: (a) A person commits the crime of misconduct involving weapons in the fifth degree if the person (1) knowingly possesses a deadly weapon, other than an ordinary pocket knife or a defensive weapon, that is concealed on the person; REPRESENTATIVE CROFT said the definition of a deadly weapon excludes pocket knives, but includes big knives such as sheath knives. He said under the old law, carrying it concealed was a violation of the law, unless the person had a permit. He added, "It's not even clear, ... because it was a firearms permit, that that would get you out of trouble." With regard to the new law, however, he said a person can carry a deadly weapon concealed, "as long as you don't fit into some of these categories that are in bold" such as not telling a police officer, or being in someone's residence without asking [permission with regard to the weapon]. Number 1454 REPRESENTATIVE GRUENBERG referred to page 2, line 21, and conveyed his understanding that "defensive weapon" is defined in AS 11.81.900(b)(19). He asked for the definition. [Chair Weyhrauch handed Representative Gruenberg a copy of the statute to read.] REPRESENTATIVE CROFT said, "Mace is what I remember from it - that it's specifically defined." REPRESENTATIVE BERKOWITZ said the phrase "contacted by a peace officer" is contained in AS 18.65.750 and would be repealed by this bill. He said he thinks that it's fairly critical to have a definition of "contacted". REPRESENTATIVE CROFT noted that the language is "back in" on page 3, lines 18-21. He explained that it was one part of AS 18.65.750(c) that [he and his staff] thought was needed. Number 1550 REPRESENTATIVE BERKOWITZ said the other issue that gives him a great deal of concern is Section 6, which allows the use of records for law enforcement purposes. He said the constraint that he is concerned about has a lot to do with what's happening at the federal level with regard to the so-called Patriot Act I and Patriot Act II, through which the federal government is seeking access to "inventories of weapons and associations and such." He asked if that topic had come up during Representative Croft's deliberations on HB 102. REPRESENTATIVE CROFT answered no. He said it is a concern of his as well. Noting that what is being kept in Section 6 is the current law, he explained: We're saying here, the negative, that is, they're not public records and may only be used for law enforcement purposes. That's in the current law; we're retaining the restriction. We didn't feel this bill [was] the vehicle to go further into the records issue, but we're not loosening it up. Number 1636 REPRESENTATIVE BERKOWITZ suggested it would be appropriate [in the House Judiciary Standing Committee, the next committee of referral] to put up some safeguards. He said he is leery of letting the federal government have access to "some of the things they want to have access to in the Patriot Acts." CHAIR WEYHRAUCH asked Representative Berkowitz if his concerns regarding Section 6 relate to constraints in the Patriot Act. Number 1656 REPRESENTATIVE BERKOWITZ said he has received information from the mayor of Anchorage, "where they have a program where they want to ... have inventories of weapons and inventories of people who have membership in certain organizations, ... pursuant to Patriot [Act] I." He related his understanding that Patriot [Act] II is "far more onerous in that regard." REPRESENTATIVE CROFT said he would watch out for that. CHAIR WEYHRAUCH asked Representatives Berkowitz and Croft if that could be addressed in the current committee, for review by [the House Judiciary Standing Committee]. REPRESENTATIVE CROFT responded that he thinks it is a very legitimate concern, but may be "a larger creature for a different bill." He explained, "It's not just 'concealed carries'; it's a lot of different records pertaining to weapons, and a lot of different things that they may be concerned about." Regarding [HB 102], he opined that it is important to maintain the restrictions on "who can see this." [The bill states that] permits and renewals are not public records and may only be used for law enforcement purposes. REPRESENTATIVE CROFT indicated that it is a legitimate point to consider further restrictions regarding law enforcement. He said he wants the committee to understand that "we are not backtracking in this bill at all." Regarding strengthening the current requirements, he said it is something that could be looked at, but might be "biting off too big a bite for this small bill." Number 1750 REPRESENTATIVE BERKOWITZ, on that point, referred to the title, ""An Act relating to concealed deadly weapons." He posited that this certainly fits within that broad title. He added, "We're expanding the rights of those who are carrying concealed; we ought to, at the same time, protect those rights. And so I would, again, suggest we do it." REPRESENTATIVE BERKOWITZ, speaking from his experience as a prosecutor, referred to a case where a young man was arrested for carrying concealed because he had a knife in a scabbard that was covered by a coat when he was seated. When the young man stood up, the knife was revealed, but the officer had contacted him when the young man was seated. He referred to [page 1, lines 8-11], which read as follows: (A) that is concealed on the person, and, when contacted by a peace officer, the person fails to (i) immediately inform the peace officer of that possession; or REPRESENTATIVE BERKOWITZ said the definition of "immediately" is fairly critical. He suggested that when police make contact, they should affirmatively indicate, to those they contact, "the obligation." He likened it to Miranda [warnings]. CHAIR WEYHRAUCH said his concern would be that there may be an exclusionary prohibition on authorizing evidence of a crime because a police officer fails to immediately request information about possession. He said the burden would be put on the police officer. REPRESENTATIVE BERKOWITZ asked, "What's the mens rea, if you don't immediately inform? What's the culpable mental state?" CHAIR WEYHRAUCH said it is certainly a question of fact. REPRESENTATIVE BERKOWITZ said: There's no intent to not inform the officer; it's not reckless, because you don't know about it. You're not negligent, because you don't know about it. So, it almost seems that you've evolved into a situation where ... there's no mental state required at all. And that runs counter to most components of the criminal code. CHAIR WEYHRAUCH, in response to a question by Representative Croft, said the committee tries to get a sense of "where the policy is going to be shaped outside the committee room." Number 1959 REPRESENTATIVE GRUENBERG, regarding mens rea or mental intent, referred to the word "knowingly" on [page 1], line 6, which modifies the word "possesses". He commented, "They may know that they possess it, and that's the knowledge that seems to be required here." He deduced that Representative Berkowitz was speaking in regard to [when the person] knowingly fails to immediately inform the peace officer. He stated his assumption that the person would have to know that the other person is a peace officer. He said it wouldn't apply if the person were a plain-clothes officer. He referred to Section 4, beginning on page 3, line 18, which read as follows: *Sec.4. AS 11.61.220 is amended by adding a new subsection to read: (j) In (a)(1) of this section, "contacted by a peace officer" means stopped, detained, questioned, or addressed in person by the peace officer for an official purpose. REPRESENTATIVE GRUENBERG surmised that it is the intent [of the sponsor] that the person would have to know that the person was a peace officer. REPRESENTATIVE CROFT said that is correct. REPRESENTATIVE GRUENBERG asked Representatives Croft and Berkowitz if it would make them feel better if [the language was changed] to read "a known peace officer", for example. REPRESENTATIVE BERKOWITZ expressed concern about imposing an affirmative duty on people to inform the police of anything. He explained, "If people are unaware of that affirmative duty, it seems to me problematic to try to prosecute them for a violation of that section." Number 2107 REPRESENTATIVE GRUENBERG suggested adding something like "and asked if they had a weapon" to Section 4. REPRESENTATIVE CROFT said he isn't comfortable putting the affirmative duty on the police officer without understanding more about it. He said he'd like to get [the bill] to the House Judiciary Standing Committee for just this sort of discussion. Number 2141 REPRESENTATIVE DAHLSTROM moved to adopt the proposed CS, Version 23-LS0515\I, Luckhaupt, 4/2/03, as a work draft. There being no objection, Version I was before the committee. Number 2163 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), thanked the sponsor for addressing the concern of [ANDVSA] regarding people who are carrying concealed and the need, when entering a residence, to identify that they are carrying a concealed weapon. Announcing that today is the six-month anniversary of her father's death, she said he'd taught her that it is important to pay attention to the detail; people add to or subtract from their character by how they pay attention to that detail and what they [do]. She continued: There were some things that were said at the last committee, or things that were written down, that I think are not accurate and need correcting. I'm not hysterical. I wasn't [hysterical] in any of the committee meetings whenever I testified about concealed weapons. I never screamed that blood was going to run in the street. As you can probably tell, I don't make my money by training people how to use guns. And I think that training is important. They had a qualifier in the NRA's testimony the past time about saying that while they were using statistics that said crime rates went down, they weren't saying that that was the correlation, necessarily, between the concealed weapons permitting process. MS. HUGONIN referred to implications at a previous hearing that if a state enacts concealed carry laws, its [crime rates] will go down. She said: Last year, we did not testify on Senate Bill 242 until they made a statement that sexual assault went down. And as you have been becoming more familiar with this problem in our state, you know that we rank the top per capita in the nation in sexual assault, and we have for the last several years. Having concealed permits in our state has not affected that statistic. Number 2283 MS. HUGONIN emphasized that this isn't necessarily about the right to bear arms, but about whether they should be concealed. Just as people have the right to self-defense, she said they should have the right to refuse to be in the presence of a weapon that might pose a danger. She told members: When a person carries concealed, that takes away my right to make a choice about whether or not I want to be in the presence of that weapon. So, as we're thinking through the issue, I would hope that we would think of other elements besides the right to bear arms. I think it's different from that. I think it's a balancing act about our rights and how we decide to protect ourselves and to be safe. MS. HUGONIN, in response to Representative Berkowitz's concern regarding [people] being informed of their responsibility, stated the following: Originally, when we had enacted the concealed permitting process, when you went to get your permit you were given a packet of information so that you had the opportunity to know what the statutes and the regulations were. So you did have the opportunity to say, "Oh, if I see a peace officer, this is what I'm supposed to do," or, "These are the places I'm not allowed to carry" - so that you had the opportunity to try and keep yourself out of that trouble, to be informed about where you could and couldn't carry the weapon. So I would hope that we're open to have dialogue and discussion on both sides. That language doesn't have to be inflammatory. ... Scare tactics don't have to be used when you're trying to talk about this issue. Number 2418 BRIAN JUDY, Alaska State Liaison, Institute for Legislative Action, National Rifle Association (NRA), mentioned graphs he'd showed the committee [at a previous hearing, showing crime rates]. Noting that 1995 was the year the Alaska concealed weapon permit law took effect, he said crime did "fall off precipitously, immediately following." He continued: I did point out that I can't guarantee that that was as a direct result of the implementation of the concealed weapon permit law, but I did want to make the point that the implementation of that law right after the (indisc.). And there was tremendously inflammatory language, maybe not necessarily by the previous speaker, [but] back in the mid-nineties, ... by many others. And it was specifically mentioned that there ... were going to be shootouts in Anchorage intersections. It was quite amazing. And none of that took place. There have been studies that have shown that when ... law-abiding citizens are able to provide a means of self-protection that crime does drop. So, for whatever the reason -- I'm sure some component of it is the fact that criminals are now more concerned, but there are a lot of other things, too, that may impact the rate of crime in a particular state. So, again, I believe that this law is the ultimate streamlining; it takes away the need for law- abiding citizens to get permission to provide a means of self-protection. I believe that it will not have a negative impact on crime. To make one last point on the training: there are many, many states that issue concealed weapon permits, and the breadth of laws ... from absolutely no training to fairly significant training is out there. And the empirical evidence in every one of those states is the same: ... there are not problems generally caused by concealed weapon permit holders, training-related or otherwise. MR. JUDY stated the NRA's support of HB 102 as amended. Number 2569 CHAIR WEYHRAUCH closed public testimony. He told Representative Croft he thinks the title should be tightened, and asked him to work with the committee regarding the questions raised on Sections 4 and 6. REPRESENTATIVE BERKOWITZ asked Representative Croft to consider the following: In Section 5, which, I think, was the basis of this legislation, if we could have a section that does impose on people from other jurisdictions -- ... this is a presumption that they're aware of Alaska statutes and restrictions. ... That might be, ... just for evidentiary purposes, ... very helpful. REPRESENTATIVE GRUENBERG said any further questions he himself might have, he could work on in the House Judiciary Standing Committee. [HB 102 was held over.]
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