Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/16/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB80 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 80 | TELECONFERENCED | |
| += | SB 200 | TELECONFERENCED | |
| += | SB 110 | TELECONFERENCED | |
| += | SB 186 | TELECONFERENCED | |
| += | SB 210 | TELECONFERENCED | |
| += | SB 212 | TELECONFERENCED | |
| += | SB 218 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 80-SELF DEFENSE
1:34:15 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." He noted that there was a great deal of interest in the
bill and that the committee was committed to honoring the public
process.
1:35:23 PM
GARY ELLIS, representing himself, Wasilla, AK, strongly
encouraged the committee to support HB 80. He stated that a
person who is in a life and death situation should not have to
decide if he/she could potentially face charges for defending
him or herself. The bill addresses that problem by essentially
doing away with the duty to retreat. He noted that a number of
other states have passed similar legislation and haven't had
problems.
SENATOR MCGUIRE joined the committee.
1:36:57 PM
WILLIAM PINNEY, representing himself, Anchorage, AK, strongly
encouraged the committee to support HB 80. He said the bill is
an important tool so that average individuals can defend
themselves against those who have no respect for other people.
Without such legislation, an individual who feels he can't
retreat can easily have his life destroyed by a prosecuting
attorney. He cited the Rodney Lewis in Iowa as particularly
egregious, and concluded that individuals have the
responsibility to protect themselves because the U.S. Supreme
Court ruled that it is not the responsibility of the police.
CHAIR FRENCH thanked him for bringing the Lewis case to the
committee's attention, because he was looking for a specific
instance where a bill like HB 80 would have made a difference in
the outcome of a criminal case.
1:41:19 PM
BRIAN JUDY, Senior State Liaison, National Rifle Association -
Institute for Legislative Action (NRA-ILA), Sacramento, CA,
testifying in support of HB 80, characterized the proposed bill
as important self-defense legislation. It provides that a person
who is justified in using deadly force in self defense has no
duty to retreat if the person is in any place the person has a
legal right to be. NRA members believe that a potential victim's
life is just as worthy of defense if they are in a place they
have a legal right to be as if they were at home, at work, or on
their property.
When an individual uses deadly force in self defense, the
primary consideration is justification. Alaska statutes provide
that the use of deadly force in self defense is justified when a
person reasonably believes that he/she or a person he/she is
protecting is in danger of being killed, sustaining serious
bodily injury, being a victim of sexual assault, being
kidnapped, or being robbed. Both the subjective and objective
standard must be satisfied. The person must actually believe
that deadly force is necessary to protect him or herself against
an imminent serious threat, and that belief must be reasonable.
Deadly force is specifically not justified if the person is
engaged in mutual combat, is provoking another person to
violence, is the initial aggressor, or involved in felonious or
gang activity. Removing the additional question as to whether a
person can retreat with complete safety makes for one less
consideration in the split second life or death decision-making
process. This does not change the fact that the person must be
justified and have a legal right to be in a place where the act
of self defense occurs. In conclusion he opined that removing
the retreat provision shifts some of the risk calculation to the
aggressor.
CHAIR FRENCH closed public testimony and stated that he invited
Mr. Fayette to testify because of his experience in this area.
1:46:58 PM
JAMES FAYETTE, representing himself, Anchorage, AK, said he was
taking personal leave from his job as an assistant district
attorney to testify against the bill. He described his
education, work experience, and qualifications to speak on the
topic. He said he did not presume to represent the department or
the administration, but he found no support for the bill among
his prosecution colleagues. The bill is a bad and dangerous idea
because of its unintended and serious consequences. The problem
is that violent criminals will take advantage of the legislation
by claiming self defense. He said he would give four examples of
cases where this bill would have made a tragic difference in
trial outcomes.
CHAIR FRENCH said it's a widespread concern of law-abiding
citizens that they will be unnecessarily prosecuted for having
used deadly force to defend themselves. The example he used last
week was a woman taking groceries to her car who is beset by an
aggressor. He said his sense is that DAs can tell the difference
between the good guy and the bad guy in this sort of
circumstance. She's not going to be prosecuted for using deadly
force to defend herself and neither will someone who witnesses
the encounter and uses deadly force to stop an armed aggressor.
MR. FAYETTE said he wasn't familiar with the Lewis case, but
none of the people who testified during the previous hearing
indicated they were responding to a specific case. They just
generally and philosophically thought that people should not
have a duty to retreat. He opined that the bill is trying to fix
a problem that does not exist, because existing law protects a
citizen's right to defend him or herself.
MR. FAYETTE added that the 2006 amendment clarified that someone
defending his/her children does not have a duty to retreat. He
said the perception from Mr. Judy's comments is that someone has
to go to court and prove they acted in self defense, but the
burden is actually on the prosecutor to prove beyond a
reasonable doubt and to the unanimous satisfaction of trial
jurors that the person did not act in self defense. That's
notoriously difficult to do.
1:56:11 PM
MR. FAYETTE said the basic rule of self defense is in AS
11.81.330. Subsection (a) says "A person is justified in using
nondeadly force upon another when and to the extent the person
reasonably believes it is necessary for self-defense against
what the person reasonably believes to be the use of unlawful
force by the other person," and paragraphs (1)-(3) say that self
defense is not justified when the person is engaged in mutual
combat, is provoking another person to violence, or is the
initial aggressor. In 2004 the Legislature added to the
exceptions saying that self defense is not justified if a person
is retaliating or in revenge for gang conduct, is a participant
in a felony drug transaction, or is engaged in the commission of
a felony.
AS 11.81.335 has the special rules for when a person is
justified in using deadly force in defense of self. Subsection
(a) says a person is justified in using deadly force if the
person reasonably believes it is necessary for self defense
against death, serious physical injury, sexual assault, or
robbery. Subsection (b) says a person may not use deadly force
if the person knows that, with complete personal safety and
safety as to others being defended, the person can avoid the
necessity of using deadly force by leaving the area. It is a
fairly high burden and it's the prosecutor that has to prove
that the person could not retreat. There are exceptions to the
duty to retreat.
There is no duty to retreat if the person is on premises that
the person owns or leases, where the person resides, or is a
guest or agent of the owner or resident. A police officer acting
within the scope of the officer's employment has no duty to
retreat. There is no duty to retreat if the person is at his/her
workplace or if the person is protecting a child.
HB 80 seeks to add another exception that says a person does not
have to retreat if he/she is in a place where he/she has a right
to lawfully be. This would basically do away with the duty to
retreat except in trespass situations. He opined that this was
over broad and problematic. Gang members who shoot at other gang
members on a public street are in a place where they have a
right to be. In road rage situations when someone pulls a gun,
the people are on a highway and are in a place they have a legal
right to be.
2:01:57 PM
SENATOR COGHILL asked if the exceptions in AS 11.81.330 wouldn't
rule in this case.
MR. FAYETTE confirmed that the first test for the use of deadly
force is that all the conditions in AS 11.81.330 must be
satisfied. In other words, a person who is the initial aggressor
can't use deadly force because they're boxed out by [AS
11.81.330(a)(3)].
SENATOR COGHILL asked if gang member activity falls into the
categories of mutual combat, initial aggressor, or felonious
activity.
MR. FAYETTE said yes, but it's disputed. The prosecutor has to
disprove the propositions and a skilled defense attorney can
easily characterize the situation as ambiguous.
2:04:34 PM
SENATOR WIELECHOWSKI summarized that AK 11.81.330(a)(4)(C)
blocks a claim of self defense by gang members.
MR. FAYETTE said that's correct if the jury decides it was
retaliation for gang conduct or a drug transaction.
SENATOR WIELECHOWSKI asked if road rage would be considered
mutual combat.
MR. FAYETTE replied it would be disputed in court.
CHAIR FRENCH said a bar fight is the classic example of mutual
combat, and no one can claim self defense. He questioned whether
it was mutual combat when two drivers flip each other off at a
stoplight.
MR. FAYETTE responded that whether or not it is mutual combat
will be disputed in every case that goes to trial. The burden
will be on the prosecutor to prove that it was mutual combat and
the jury will be told repeatedly to resolve any ambiguity in the
defendant's favor.
2:06:23 PM
SENATOR MCGUIRE recalled the case of a minister [from Big Lake]
who was prosecuted for shooting a man in the back as he was
fleeing after breaking into the church. The jury found in the
minister's favor, but it brought up a number of issues since the
criminal was retreating. She asked him to comment on the
outcome, why there was a decision to prosecute, and how HB 80
would enter into that fact pattern.
MR. FAYETTE said he wasn't directly involved in the case, but
the important point is that the minister was acquitted after he
[shot and killed one man and shot another in the back] as they
ran from an unoccupied building.
2:12:09 PM
MR. FAYETTE described four cases where a bill like HB 80 may
have made a difference in the outcome of a criminal case. He
displayed a video clip that showed off-duty Army Sergeant Evan
Minnear, a military policeman, being shot by Mr. Vongthongdy, a
felon who was drunk at the time. Mr. Vongthongdy claimed self
defense at trial. The judge ultimately ruled that he was not
entitled to a self defense claim, but part of the prosecution's
argument was the duty to retreat. Mr. Vongthongdy had the
opportunity to walk away from Sergeant Minnear but he did not do
so. The incident occurred on the street outside a bar so Mr.
Vongthongdy had a legal right to be there. Had HB 80 been law it
would have been much more difficult for the prosecution, and Mr.
Vongthongdy may have been acquitted.
2:19:06 PM
MR. FAYETTE next displayed a video clip of a gang-related
shooting. Mr. Tautua, a Bloods member, was standing in front of
Rumrunners Bar in Anchorage at 1:00 a.m. He was flagging red as
Crips members cruised by. In a face-off a Crip punched a Blood,
and Mr. Tautua emptied a five-shot revolver at the Crips. One of
those shots hit an innocent woman in the collarbone. Mr. Tautua
was arrested and argued self defense at trial. The prosecution
argued that the self defense claim failed because it was gang
conduct, he provoked the incident by flagging, and he had a duty
to retreat. If HB 80 had been law, Mr. Tautua would have had a
better claim of self defense.
2:26:36 PM
CHAIR FRENCH highlighted that it's a lawful death if a shot
fired in self defense hits and kills an innocent bystander.
MR. FAYETTE agreed that transferred intent counts. If Mr. Tautua
had a valid claim of self defense and was not reckless in the
care of a third party the self defense claim would transfer.
That was litigated in the Tautua case and the jury concluded
that he was reckless because he was trying to shoot rivals in
the back as they were fleeing.
2:27:44 PM
MR. FAYETTE described a stabbing/murder case from Ketchikan. Mr.
Rossiter was searching through a car that belonged to Mr.
Stachelrodt's parents. When Mr. Stachelrodt tried to pull Mr.
Rossiter out of the car, Mr. Rossiter stabbed Mr. Stachelrodt to
death. The jury wrestled with the case for two days before
convicting him of second degree murder. Mr. Rossiter was not
committing a felony, he was not a gang member, and he was not
the initial aggressor, but he could have retreated. If HB 80 had
been law, there would potentially have been a different outcome
at trial.
2:29:37 PM
MR. FAYETTE described a road-rage/murder case from Fairbanks
that was pending retrial. Mr. Bostic was alleged to have
instigated a fight following a road-rage incident and he fatally
stabbed Mr. Lund. Road-rage cases are illustrative of duty to
retreat; you step on the brake and remove yourself from the
situation, Mr. Fayette said.
MR. FAYETTE concluded that HB 80 dangerously and unnecessarily
expands the defense of self defense, which will benefit violent
criminals and do nothing to enhance the safety of law-abiding
gun owners. Existing law protects life, whereas this proposal
devalues it.
SENATOR PASKVAN asked what impact the bill will potentially have
on set guns.
MR. FAYETTE said AS 11.81.350(c)(2) allows the use of deadly
force to terminate a burglary in an occupied dwelling, but he
would argue that there would be no defense for using a set gun
under that statute. He added that he was unaware of any set gun
case being presented to his office in the last 20 years.
CHAIR FRENCH asked Representative Neuman if he had any
concluding comments.
2:35:35 PM
REPRESENTATIVE MARK NEUMAN, sponsor of HB 80, stated his belief
that current statutes do not adequately protect the rights of
individual Alaskans to defend themselves. HB 80 does not change
that a jury may hear a case but it sends a clear message to
prosecutors and the courts that an individual has a right to
self defense when he/she is any place where he/she has a right
to legally be. He disputed that the bill would increase self
defense claims and expressed discomfort with any argument that
associates costs with human life.
He offered his belief that the presumption of innocence is
disregarded in many cases of self defense, and the burden is on
the individual to prove his/her innocence. The minister from Big
Lake, for example, spent his life savings to defend his right to
defend himself. Referring to the cases cited by the previous
testifier, he said each of the cases violated the justification
clauses. In the first case the shooter was a felon who was drunk
and in possession of a firearm. That's illegal. He argued that
the road-rage case was a mutual combat situation, and did not
meet the justification clauses. Referring to the gang-related
shooting, he opined that if one of the security guards had been
armed he would have had the duty to retreat instead of trying to
defend the people that Mr. Tautua shot.
2:42:16 PM
CHAIR FRENCH clarified that the issue is not whether the
security guard could personally retreat, but whether everybody
involved could safely get away. If not, then deadly force could
be used.
REPRESENTATIVE NEUMAN responded that current law says that if a
person can safely remove him or herself from the scene he/she
has to do that.
CHAIR FRENCH wondered what was wrong with that idea. Don't we
want people to withdraw from a situation if it could be done
with complete personal safety, he asked.
REPRESENTATIVE NEUMAN said absolutely.
CHAIR FRENCH observed that there didn't appear to be an example
in Alaska law of the wrong person being prosecuted under the
self defense statute. The [Big Lake] case appropriately went to
a jury because one person died and another person was shot in
the back.
REPRESENTATIVE NEUMAN responded that he purposefully did not
bring individual cases forward.
2:44:31 PM
SENATOR MCGUIRE asked the sponsor his motivation in introducing
the bill, and if it might unwittingly allow more defense
opportunities for gang members and make it more difficult for
prosecutors.
REPRESENTATIVE NEUMAN said the primary motivators were the Big
Lake case and the fact that so many other states brought forward
similar legislation. He offered his belief that the right of
self defense under the castle doctrine should extend to any
place that a person has a legal right to be, like the Dimond
Center or out camping.
2:49:07 PM
REX SHATTUCK, staff to Representative Mark Neuman, discussed the
judicial system and an individual's objective and subjective
decision making in the context of HB 80. The judicial system
addresses justification and self defense; when a prosecutor
takes on one of these cases it has to go to the jury for final
decision as to whether it was self defense. For the individual,
the message is that there is justification for self defense. An
individual who is in imminent danger has a right to defend him
or herself in a place where he/she has a right to be.
He concluded that the bill enjoyed broad support in both bodies
and that the administration indicated its support as well.
2:52:28 PM
CHAIR FRENCH announced he would hold HB 80 in committee.
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