Legislature(1997 - 1998)
03/26/1997 01:50 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 70 UNLAWFUL DISCHARGE OF A FIREARM
SENATOR DAVE DONLEY , sponsor of the measure, explained that
currently in Alaska it is not a felony to shoot at a building or
dwelling unless one knows it is occupied. SB 70 makes it a felony
offense to fire a gun into a building and is the result of
frustration expressed by police officers when attempting to
prosecute for drive-by shootings. Under current law, unless proof
is available that the person shooting the firearm knew the house
was occupied at the time of the shooting, the offender can only be
charged with a misdemeanor, unless property damage was more than
$500, in which case the charge would be a class C felony.
CHAIRMAN TAYLOR asked Senator Donley how the proposed committee
substitute varies from the original bill.
SENATOR DONLEY said in the original bill he tried to address every
possible area of criminal law that might be impacted by such a
change. SB 70 restructured misconduct involving weapons
provisions, added shooting at a building to the list of crimes
requiring automatic waiver to adult court, added provisions for
possible impacts on the concealed weapons permit section, and
included this crime under the definition of most serious types of
crimes which is a trigger for the "three strikes" provision. That
comprehensive approach made the bill very complicated and was an
attempt to cover all possible scenarios. The proposed committee
substitute is very simple, and only deals with what it takes to
make it a felony to discharge a firearm in the direction of a
building.
SENATOR MILLER moved to adopt CSSB 70(JUD) (version O-LSO272\T) in
lieu of the original bill. There being no objection, CSSB 70(JUD)
was adopted.
Number 249
SENATOR DONLEY explained CSSB 70(JUD) contains an intent section to
clarify that discharge of a firearm at a building is a felony
whether the offender knew the building was occupied or not. Section
2 is the core of the bill and establishes that a person commits a
felony if he/she discharges a firearm in the direction of: an
occupied building; an unoccupied building with reckless disregard
for the risk of physical injury or damage; or a dwelling. The
intent of this section is to omit a scenario in which someone
shoots at an abandoned cabin in the woods, and was sure no one was
in the building. Section 3 clarifies that the circumstances in
Section 2 should be considered differently from circumstances under
an existing law that makes it a misdemeanor to recklessly disregard
risk of property damage or physical injury but does not involve
buildings.
Number 385
ANNE CARPENETI , Assistant Attorney General, testified that the
Department of Law supports CSSB 70(JUD) with one exception. At
present, discharging a firearm with reckless disregard for a risk
of damage to property or a risk of physical injury to a person is
a class A misdemeanor under the misconduct involving weapons
provision. The Department of Law believes that activity should
remain a misdemeanor because the new language on page 2, lines 13-
14 would make the act of shooting at an abandoned shack in the
woods a felony by specifying property damage in the bill. Under
current law, that activity is a property offense and is a
misdemeanor unless the damage caused is in excess of $500, in which
case the offense is a class B felony. Without that element
included in the bill, the bill's intent, to make it a felony to
shoot at buildings whether occupied or not, is addressed because a
culpable mental state does not have to be proved.
SENATOR PEARCE noted in her district a veterinary clinic and NAPA
store have been shot at several times during drive-by shootings.
Those buildings are adjacent to a home, and a childcare facility.
No one has been injured during those shootings, but people are in
the vet clinic at odd hours to care for the animals. She does not
believe the people involved in the drive-by shootings consider
whether the buildings are occupied. Senator Pearce felt it is
dangerous to shoot at a person, animal or tire, and that those
types of offenses ought to be felonies. She suggested describing,
by definition, the abandoned cabin scenario previously discussed.
Number 346
SENATOR DONLEY suggested removing the words "damage to property or
a risk of" on page 2, lines 13-14. He believed that would remove
the department's concern regarding property.
MS. CARPENETI said that would go a long way to address the
Department of Law's concerns regarding offenses strictly involving
property and in those cases, criminal law is focussed on the amount
of damage caused.
SENATOR PEARCE said in Anchorage these situations are occuring at
5:00 p.m., not in the middle of the night, and the offenders are
not concerned about whether they are only harming property. She
stated she did not want to wait for a person to have to shoot
another person before the offense becomes a felony.
MS. CARPENETI replied Senator Donley's suggested language would go
a long way to address the Department of Law's concerns.
CHAIRMAN TAYLOR did not think property damage was the focus of CSSB
70(JUD) and moved to amend page 2, line 13, by deleting the words
"damage to property or a risk of."
SENATOR PEARCE asked if the police would have to prove there might
have been a person in the building at the time of the shooting
before they could charge the offender with a felony.
Number 373
CHAIRMAN TAYLOR thought they would have to show a likelihood that
people could have been in the building. He explained that any
bullet shot at a building is going to cause physical damage, but
property damage statutes address that offense. If the concern in
this bill is about physical injury to a person in the building, one
would have to prove that the offense was committed with reckless
disregard, and the intent section in CSSB 70(JUD) changes the
requirement of proving that the offender knew someone was in the
building, to proving the act was so reckless they disregarded the
possibility.
SENATOR DONLEY thought the committee substitute will give
prosecutors some discretion regarding when they bring cases, and
judges the discretion to decide whether a particular level of
disregard was shown. The proposed amendment would also allow for
some discretion because if one shoots into a commercial building in
an urban area, it is very possible people are working in those
buildings at night.
MS. CARPENETI noted other statutes address similar instances, for
example, if a person is put in fear, the offender would be charged
with assault.
SENATOR DONLEY remarked the difference is that a victim must exist.
CSSB 70(JUD) does not require that a real person be present during
the shooting.
Number 419
SENATOR PEARCE commented any weekend employee at the vet clinic
will constantly wonder if another drive-by shooting will occur, so
whether another incidence occurs or not, the fear factor has
already been created.
SENATOR DONLEY thought that was true, but would not meet the
current definition in the assault statute because there must be an
immediate fear of injury.
CHAIRMAN TAYLOR stated the bill is stronger without the amendment
because the only standard that would need to be shown is that
someone fired with reckless disregard of property damage.
Number 435
SENATOR DONLEY said the definition of "recklessly" requires that
the risk must be of such a nature and degree that disregard of it
would constitute a gross deviation from the standard of conduct
that a reasonable person would observe in the situation. He
believed shooting into a building where people might be working
during the night would fit that definition.
CHAIRMAN TAYLOR withdrew his amendment. SENATOR PEARCE moved CSSB
70(JUD) from committee with individual recommendations and the
appropriate fiscal notes. There being no objection, the motion
carried.
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