Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/07/2012 01:30 PM Senate JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 80 SELF DEFENSE TELECONFERENCED
Heard & Held
+ SB 134 CHILD SUPPORT AWARDS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                      HB  80-SELF DEFENSE                                                                                   
                                                                                                                                
1:33:30 PM                                                                                                                    
CHAIR  FRENCH  announced the  consideration  of  HB 80,  "An  Act                                                               
relating to self defense in any  place where a person has a right                                                               
to be."                                                                                                                         
                                                                                                                                
1:33:42 PM                                                                                                                    
REX  SHATTUCK,  staff  to Representative  Mark  Neuman,  a  prime                                                               
sponsor  of HB  80, characterized  the bill  as the  "no duty  to                                                               
retreat"  legislation.   He  explained  that  HB   80  amends  AS                                                               
11.81.335(b) by  adding a new  paragraph (5) to clarify  a person                                                               
does not  have a  duty to  retreat and  can instead  apply deadly                                                               
force  in defense  of self  if he/she  is anywhere  he/she has  a                                                               
right  to be.  He noted  that approximately  18 other  states had                                                               
already passed or were working on similar legislation.                                                                          
                                                                                                                                
CHAIR FRENCH  noted that Lieutenant  Dial with the  Department of                                                               
Public  Safety   (DPS),  Brian  Judy  with   the  National  Rifle                                                               
Association, Quinlan Steiner with  the Public Defender Agency and                                                               
Anne Carpeneti  with the Department  of Law (DOL)  were available                                                               
to  answer  questions. He  asked  Mr.  Shattuck if  a  particular                                                               
incident in Alaska served as a catalyst for the bill.                                                                           
                                                                                                                                
MR. SHATTUCK  relayed that  a number  of constituents  and groups                                                               
expressed interest in the issue  after the question was raised in                                                               
several cases in the Lower 48.                                                                                                  
                                                                                                                                
1:39:54 PM                                                                                                                    
CHAIR  FRENCH  reviewed the  bill  packet  and observed  that  it                                                               
contained  an  impressive  amount   of  supporting  material  and                                                               
messages  from across  the state.  Promising  that the  committee                                                               
would conduct a detailed examination  of the self defense law, he                                                               
emphasized that the current law was  reasonable and that it was a                                                               
misconception that  the duty to  retreat means that a  person has                                                               
to  give up  in  the face  of  a criminal  attack.  He asked  Ms.                                                               
Carpeneti to  provide an overview of  the self defense law  as it                                                               
currently stands.                                                                                                               
                                                                                                                                
1:41:18 PM                                                                                                                    
ANNE  CARPENETI,  Assistant  Attorney  General  representing  the                                                               
Criminal Division, Department of Law  (DOL), said the first thing                                                               
to understand is  that self-defense is a defense  which the state                                                               
has to disprove beyond a reasonable doubt.                                                                                      
                                                                                                                                
CHAIR  FRENCH  posed  a hypothetical  situation  to  clarify  the                                                               
meaning  of  that  statement.  A  mother  with  two  children  is                                                               
carrying groceries  to her car  and is beset  by a robber  in the                                                               
parking lot. Believing the man is  armed, she uses her own gun to                                                               
shoot  him. The  district attorney's  office has  to screen  that                                                               
case and  decide whether or  not to  accept a charge  of homicide                                                               
against the mother.                                                                                                             
                                                                                                                                
MS. CARPENETI added  that the screening decision  in that example                                                               
would be not  to prosecute the woman, because in  Alaska the duty                                                               
to retreat  only applies when a  person knows that he  or she can                                                               
retreat in complete safety to him  or herself and others they are                                                               
protecting.                                                                                                                     
                                                                                                                                
CHAIR FRENCH summarized  that the DA would make  the decision not                                                               
to prosecute because  no crime had occurred. It was  a lawful use                                                               
of self-defense under current Alaska law.                                                                                       
                                                                                                                                
MS. CARPENETI replied that is correct.                                                                                          
                                                                                                                                
CHAIR  FRENCH asked  if Senator  Coghill, for  example, would  be                                                               
authorized to  shoot and  kill the  attacker, assuming  the woman                                                               
was unarmed and he saw a gun in the attacker's hand.                                                                            
                                                                                                                                
MS.  CARPENETI confirmed  that  he  would not  have  the duty  to                                                               
retreat  under that  circumstance.  If he  had reasonable  belief                                                               
that  the woman  was  in  danger he  could  use  deadly force  to                                                               
protect the woman and her children.                                                                                             
                                                                                                                                
CHAIR FRENCH asked if in the  second scenario the duty to retreat                                                               
pertains to  the victim and not  so much to Senator  Coghill. The                                                               
issue is whether the victim can get away.                                                                                       
                                                                                                                                
MS. CARPENETI confirmed that was correct.                                                                                       
                                                                                                                                
CHAIR  FRENCH  read the  current  law  under AS  11.81.335(b)  "A                                                               
person may not use deadly force  under this section if the person                                                               
knows  that,  with complete  personal  safety  and with  complete                                                               
safety  as to  others being  defended, the  person can  avoid the                                                               
necessity..."                                                                                                                   
                                                                                                                                
He adjusted  the hypothetical to illustrate  that every situation                                                               
has to be analyzed. In this  instance the woman is walking to her                                                               
car and  a man gets  out of another car  that is parked  20 yards                                                               
away. The  man has a gun.  He asked what the  obligation would be                                                               
under that scenario.                                                                                                            
                                                                                                                                
MS. CARPENETI  agreed that ever  situation is different  and each                                                               
has  to  be  analyzed  on  its  facts.  If  Senator  Coghill  had                                                               
reasonable belief that there was  deadly danger to that woman, he                                                               
would  have the  right to  use the  defense of  third parties  in                                                               
defense of others. Under that  circumstance he would not have the                                                               
duty to retreat.                                                                                                                
                                                                                                                                
1:45:26 PM                                                                                                                    
MR.  SHATTUCK  agreed with  Ms.  Carpeneti  and highlighted  that                                                               
there are both objective and  subjective considerations. He noted                                                               
that Justice  Oliver Wendell Holmes  questioned how  subjective a                                                               
person needed  to be  when the  objective justification  was that                                                               
there was a gun in your face.                                                                                                   
                                                                                                                                
CHAIR  FRENCH  agreed that  Justice  Oliver  Wendell Holmes  said                                                               
there  is no  duty  to retreat  under  certain circumstances.  He                                                               
said, "detached reflection cannot be  demanded in the presence of                                                               
an uplifted knife."  That is common sense and the  current law in                                                               
the state of Alaska. Senator Coghill  would not be expected to go                                                               
through  a  calculated analysis  of  the  situation. If  he  sees                                                               
someone being beset  by an armed robber, he can  kill that robber                                                               
and  the  Department of  Law  would  not  prosecute. If  he  were                                                               
prosecuted,  Senator Coghill  would go  to court  with the  legal                                                               
advantage of the  state not only having the  burden of convicting                                                               
him beyond a  reasonable doubt, but also of  disproving his self-                                                               
defense claim beyond a reasonable doubt.                                                                                        
                                                                                                                                
CHAIR FRENCH said he was going  through this in detail because of                                                               
the  seeming misperception  that people  cannot already  exercise                                                               
the right  of self-defense. That is  not the case; people  in the                                                               
state of Alaska have an absolute right to defend themselves.                                                                    
                                                                                                                                
1:48:40 PM                                                                                                                    
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute   for   Legislative   Action   (NRA-ILA),   Sacramento,                                                               
California, stated strong support for  HB 80. He relayed that the                                                               
sponsor  suggested that  he  hold his  testimony  until the  next                                                               
hearing  when  the  full  committee  and  the  sponsor  could  be                                                               
present. He  offered to answer  questions as they came  up during                                                               
this hearing.                                                                                                                   
                                                                                                                                
CHAIR FRENCH  asked if he had  any comment about what  he'd heard                                                               
today,  and if  the  NRA had  any good  examples  of an  innocent                                                               
person being prosecuted for homicide  when a bill like this would                                                               
have prevented such a prosecution.                                                                                              
                                                                                                                                
MR. JUDY confirmed that the bill  was not introduced based on any                                                               
specific  circumstance;  it  was  brought  on  the  philosophical                                                               
discussion  nationwide   on  the   issue  of  self   defense.  He                                                               
acknowledged that existing  Alaska law provides that  there is no                                                               
duty to  retreat if a  person is  justified and on  premises they                                                               
own, lease, reside, or work.  However, the NRA's position is that                                                               
if a person  is out in public  where they have a right  to be and                                                               
they  are justified,  they should  not  have to  go through  that                                                               
mental  exercise as  to  whether  or not  they  can retreat  with                                                               
complete safety.                                                                                                                
                                                                                                                                
He urged caution  in saying there is an absolute  right to defend                                                               
oneself. The prosecutor  is going to consider  whether the person                                                               
was justified and whether the  person could retreat with complete                                                               
safety so the person in the  circumstance has to consider that as                                                               
well in deciding whether to employ deadly force.                                                                                
                                                                                                                                
1:53:59 PM                                                                                                                    
CHAIR FRENCH asked if the NRA  had analyzed what it means to have                                                               
a right to  be in a particular place. For  example, does a person                                                               
that goes  to Disneyland or the  movies have a right  to be there                                                               
or  are  they there  as  a  guest or  at  the  permission of  the                                                               
corporate or business owner.                                                                                                    
                                                                                                                                
MR. JUDY  replied the NRA's analysis  would be that a  person who                                                               
is  not trespassing  and has  the legal  right to  be in  a place                                                               
would be covered  under the provisions of HB  80. He acknowledged                                                               
that private property  owners have a right  to impose limitations                                                               
on  the use  of  their  property, and  that  the limitations  are                                                               
different when  the private property  is closed to the  public as                                                               
opposed to private property that is open to the public.                                                                         
                                                                                                                                
CHAIR FRENCH asked the public defender  if passage of HB 80 would                                                               
essentially remove the duty to retreat from Alaska law.                                                                         
                                                                                                                                
1:57:05 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration  (DOA), advised  that there  would be  a remaining                                                               
duty to  retreat in situations  like trespass where a  person did                                                               
not have a legal right to be there.                                                                                             
                                                                                                                                
CHAIR FRENCH asked if  he would agree that a person  who was in a                                                               
parking lot  that was closed  to the  public for the  night would                                                               
not have a legal right to be in that parking lot.                                                                               
                                                                                                                                
MR. STEINER  responded that  if someone  were charged  under that                                                               
circumstance there would probably  be litigation about whether or                                                               
not the person had the duty to retreat.                                                                                         
                                                                                                                                
CHAIR FRENCH observed  that the first question is  whether or not                                                               
the person had a  legal right to be in the  parking lot, and once                                                               
that is resolved it would be  clear whether or not the person had                                                               
a duty to retreat.                                                                                                              
                                                                                                                                
MR. STEINER  responded that  in the  instance where  somebody has                                                               
used deadly force, the preliminary  question is whether or not he                                                               
or she  had that authority.  He opined  that it's in  that regard                                                               
that HB 80  may have no impact. Under the  statute the two events                                                               
are theoretically mutually exclusive. If  a person can retreat in                                                               
total  safety, he  or  she does  not have  the  authority to  use                                                               
deadly force. If a person has  the authority to use deadly force,                                                               
arguably there are  no circumstances under which he  or she could                                                               
retreat in total safety.                                                                                                        
                                                                                                                                
CHAIR FRENCH asked  if the Public Defender Agency  had a position                                                               
on the bill.                                                                                                                    
                                                                                                                                
MR. STEINER said no.                                                                                                            
                                                                                                                                
SENATOR COGHILL  said he will  be looking  at the issue  from two                                                               
perspectives. One  is how the  courts will interpret  the statute                                                               
and  the other  is how  the  public will  interpret their  rights                                                               
under the statute.                                                                                                              
                                                                                                                                
CHAIR  FRENCH  agreed  that  people  will look  to  the  law  for                                                               
direction and it should be as clear as possible.                                                                                
                                                                                                                                
2:02:25 PM                                                                                                                    
CHAIR FRENCH announced he would hold HB 80 in committee.                                                                        
                                                                                                                                

Document Name Date/Time Subjects
Sponsor Statement SB 134.doc SJUD 3/7/2012 1:30:00 PM
SB 134
HB 80 Sponosr Statement.pdf SJUD 3/7/2012 1:30:00 PM
HB 80
SB134 Memo from Leg Legal.pdf SHSS 2/6/2012 1:30:00 PM
SJUD 3/7/2012 1:30:00 PM
SB 134
SB134 11-076 Leg SB134 Research Report Child Support in other states.pdf SHSS 2/6/2012 1:30:00 PM
SJUD 3/7/2012 1:30:00 PM
SB 134