03/18/1998 01:35 PM Senate JUD

        SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS                        
                                                                               
                                                                               
SENATOR JERRY WARD came forward to present his bill and said the               
legislation was inspired by his son-in-law, who serves on the                  
Anchorage SWAT team and uses a type of non-lethal bean bag                     
projectile, which is a useful tool in certain situations. SENATOR              
WARD allowed that there is an element of danger in using these                 
projectiles and cited a case where a suicidal woman had her arm                
broken accidentally by one of these projectiles.                               
                                                                               
SENATOR WARD said the bill takes away the fear of prosecution in               
cases where specially trained and certified officers use this type             
of force in an appropriate situation. He said those people who use             
this mechanism to protect the public should be protected                       
themselves.                                                                    
                                                                               
SENATOR WARD said that in our litigious time, this kind of                     
protection is necessary to allow properly trained officers to use              
this weapon without fear of reprisal. He again mentioned that the              
bill was brought to his attention by his son-in-law, and noted the             
zero fiscal note that accompanies the bill.                                    
                                                                               
SENATOR PARNELL asked if a recently enacted bill that provided a               
broad scope of immunity for police officers covered this issue.                
SENATOR WARD replied that this issue was overlooked in that bill.              
He mentioned a case in the Lower 48 where the use of non-lethal                
weapons caused an accidental death.                                            
                                                                               
SENATOR PARNELL asked where immunity for peace officers is in                  
existing law and SENATOR WARD responded he was not sure. SENATOR               
PARNELL asked if the proper use of non-lethal weapons, employed in             
the scope of an officer's duty, was covered under this immunity.               
SENATOR WARD replied that these weapons are currently considered               
the equivalent of a shotgun, and this bill just allows the use of              
these types of non-lethal weapons, instead of a shotgun.                       
                                                                               
Number 108                                                                     
                                                                               
MR. CRAIG JOHNSON, staff to SENATOR WARD, interjected that                     
currently, any projectile fired from a weapon capable of lethal                
force is considered lethal force. He clarified that now these non-             
lethal projectiles are treated the same as traditional projectiles             
and this bill would put them in a separate class.                              
                                                                               
SENATOR PARNELL asked if the current statute immunized use of                  
lethal force and MR. JOHNSON said it does not. SENATOR WARD said               
this does not reduce any personal liability for negligent acts,                
only classifies non-lethal projectiles differently. SENATOR PARNELL            
voiced no problem with the concept, but only wanted to be sure they            
weren't repeating something that has already been done.                        
                                                                               
SENATOR ELLIS asked about the phrase "unlikely accidents" in the               
sponsor's statement and asked for clarification. SENATOR WARD                  
replied he was referring to a case like that previously discussed              
which resulted in a broken bone. SENATOR ELLIS asked if the bill               
seeks to grant criminal and civil immunity for officers and SENATOR            
WARD replied that no one can totally escape civil liability but the            
bill seeks to hold officers harmless in cases where they have used             
this force appropriately.                                                      
                                                                               
SENATOR ELLIS asked if the woman in the example has filed suit                 
against anyone and SENATOR WARD replied no, she is in Anchorage                
Psychiatric Institute, where she is getting help.                              
                                                                               
SENATOR ELLIS attempted to clarify SENATOR WARD's intention with               
the bill; asking if he is attempting to prevent charges being                  
brought against an officer for criminal wrongdoing, or if he is                
attempting to prevent a civil suit by a person like the woman with             
the broken bone. SENATOR WARD replied he thinks he is trying to                
accomplish both objectives, and restated that these non-lethal                 
projectiles are a useful tool in some situations and he would not              
want officers to hesitate to employ them. SENATOR ELLIS asked if               
staff could point out which part of the bill applied to criminal               
liability and which part related to civil liability. MR. JOHNSON               
replied that, essentially, the bill only reclassifies the bean  bag            
bullet itself as non-lethal. He explained in the example that was              
used, lethal force was not an option but, technically, that's what             
was used as there is no separate classification for these non-                 
lethal rounds. He said he does not believe the bill would prevent              
civil or criminal penalties. SENATOR WARD interjected that it is a             
classification of the type of bullet, something that was unfamiliar            
to him until recently. He said it is a tool that can save lies.                
                                                                               
SENATOR ELLIS clarified that the bill allows a reclassification of             
a type of ammunition, commenting he had been confused by the                   
reference to a litigious society. SENATOR WARD said he had just                
taken the example one step further and SENATOR ELLIS questoned if,             
in the example, the woman would still have the right to sue and                
SENATOR WARD replied she would.                                                
                                                                               
SENATOR PARNELL remarked that SENATOR ELLIS has raised some good               
points and that the classification of the rounds as non-lethal                 
would have civil implications and would help in the defense of an              
officer who used this force. He stated the bill would not immunize             
from liability, but would aid a defense in a civil action.                     
                                                                               
Number 253                                                                     
                                                                               
SENATOR ELLIS commented that the definition of non-lethal refers to            
things commonly used now, but does not cover the techniques that               
may soon be developed in this rapidly changing high-tech field. He             
suggested that a more expansive definition may help to keep the                
bill from rapidly becoming out of date. SENATOR WARD agreed, and               
said they had used current techniques for the definition.                      
                                                                               
SENATOR ELLIS inquired if SENATOR WARD was familiar with the level             
at which an order to shoot might be given, asking who has the                  
ultimate responsibility. SENATOR WARD replied that it was whoever              
pulls the trigger, saying an illegal order shall not be followed.              
SENATOR WARD continued that there was a chain of command and an                
officer in charge of a team might give that type of order, but                 
would also have the authority to do it themselves. CHAIRMAN TAYLOR             
interjected that, from a tort perspective, the officer who                     
authorized the shot (provided it was done appropriately, following             
established procedures) would be included in the scope of the                  
liability, along with the entire police department and city, etc.              
CHAIRMAN TAYLOR concluded that under the doctrine of respondeat                
superior, if the officer was acting within the scope of his or her             
duties, they would be personally indemnified and the city or the               
governing authority would be liable for any judgement. However, if             
the officer was ordered not to shoot, and did so anyway, he or she             
would be personally responsible and the governing authority would              
likely be absolved from any judgement.                                         
                                                                               
SENATOR WARD said the officers who approached him are under the                
impression that they are personally responsible in these                       
situations, regardless of their orders.                                        
                                                                               
SENATOR PARNELL asked if there was further public testimony on the             
bill. CHAIRMAN TAYLOR, seeing none, accepted a motion from SENATOR             
PARNELL to move the bill from committee with individual                        
recommendations, and without objection, it was so ordered.