Legislature(2005 - 2006)BUTROVICH 205

02/02/2006 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 200(JUD) Out of Committee
Moved SB 210 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
            SB 200-USE OF FORCE TO PROTECT SELF/HOME                                                                        
8:38:18 AM                                                                                                                    
CHAIR SEEKINS announced SB 200 to be up for consideration.                                                                      
SENATOR GENE  THERRIAULT, bill  sponsor, moved  version Y  as the                                                               
working document. Hearing no objections, the motion carried.                                                                    
8:38:58 AM                                                                                                                    
DEAN   GUANELI,  Chief   Assistant  Attorney   General,  Criminal                                                               
Division, Department of Law (DOL), introduced himself.                                                                          
DAVE  STANCLIFF,  staff  to Senator  Therriault,  introduced  the                                                               
bill. He  said there were a  number of issues raised  at the last                                                               
bill hearing that he was prepared  to explain. With help from the                                                               
DOL and  other stakeholders,  the sponsor  has addressed  all the                                                               
issues previously raised. The changes are as follows:                                                                           
                  Changes in the CS for SB 200                                                                              
        Senate Judiciary / Senator Ralph Seekins - Chair                                                                        
Section 1:                                                                                                                  
Makes it  clear that peace  officers and other  emergency service                                                               
personnel are exempt from the act.                                                                                              
Section 2:                                                                                                                  
AS 11.81.330  is re-written affirmatively  concerning the  use of                                                               
force for self-defense (instead of "the defense justification").                                                                
Creates an exception for those  not authorized to use force under                                                               
(a)(1-3)  of the  section if  the  person has  withdrawn from  an                                                               
encounter  and effectively  communicated  the  withdrawal to  the                                                               
other person,  but the  other person  persists in  continuing the                                                               
incident by the use of unlawful force.                                                                                          
Section 3:                                                                                                                  
Changes terminology to "use of  deadly force in self-defense" and                                                               
removes  the reference  to non-deadly  force  justified under  AS                                                               
11.81.330 so  that the  section reads  in the  affirmative rather                                                               
than conditional as presently in the statutes.                                                                                  
Lists all the conditions that  prevent a person from using deadly                                                               
force  (a)(1-4) including  clarifying prohibition  against on  or                                                               
off duty peace officers.                                                                                                        
(b)  Allows the  option of  retreat conditioned  upon the  person                                                               
being  attacked  knows that  with  complete  personal safety  for                                                               
themselves or  others being defended  they can leave the  area of                                                               
the encounter with the exceptions listed under (b)(1-4).                                                                        
Section 4:                                                                                                                  
Clarifies  the use  of  force in  the  affirmative for  defending                                                               
third parties.                                                                                                                  
Section 5:                                                                                                                  
Expands the  right to use force  to not only the  owner or person                                                               
in  possession or  control of  any premises  to a  guest of  that                                                               
Section 6:                                                                                                                  
Clarifies the application  of the law in the  case of carjacking.                                                               
Defines the  term carjacking and  the term motor vehicle  as used                                                               
in AS 28.40.100, an aircraft or watercraft.                                                                                     
MR. STANCLIFF  explained the intent  of the bill was  to identify                                                               
justification for  use of force.  Specific exemptions  were added                                                               
for people  who might in the  normal course of duty,  have reason                                                               
to break into a home.                                                                                                           
8:41:28 AM                                                                                                                    
MR. STANCLIFF  added he checked  with the drafter and  found that                                                               
court  rule change  would not  be required.  He deferred  further                                                               
explanation of the changes to Dean Guaneli.                                                                                     
8:42:28 AM                                                                                                                    
DEAN   GUANELI,  Chief   Assistant  Attorney   General,  Criminal                                                               
Division, Department  of Law (DOL),  said the intent  of amending                                                               
Section 2 was  to take out archaic language so  that people could                                                               
better  understand  the  proposed legislation.  Paragraphs  (1-3)                                                               
clarify   the  justification   of   the   use  of   self-defense.                                                               
Subparagraphs  (A) and  (B)  under Paragraph  (4)  were put  into                                                               
Alaska law a  couple of years ago in response  to increasing gang                                                               
activity  in Anchorage.  Subparagraphs (C)  and (D)  are new  and                                                               
they reflect ongoing experience with gang activity.                                                                             
8:44:58 AM                                                                                                                    
The  final new  provision in  Section  2 explains  that a  person                                                               
would not be  justified in using self-defense if  the weapon used                                                               
was  an  illegal  firearm  under   federal  law.  He  noted  this                                                               
provision garnered  much discussion  in the  last hearing  of the                                                               
bill.  There are  current  cases in  Anchorage  where felons  are                                                               
claiming  self-defense  when in  reality  they  were out  on  the                                                               
streets with illegal weapons.                                                                                                   
8:47:30 AM                                                                                                                    
Section  3 is  the primary  provision for  using deadly  force. A                                                               
person would  be allowed to use  deadly force if it  is necessary                                                               
to  do so  to  protect oneself  against  death, serious  physical                                                               
injury, kidnapping, etc. What has  been added is "sexual abuse of                                                               
a  minor in  the first  degree." Further,  Section 3  expands the                                                               
areas  where  people  justified in  using  self-defense  are  not                                                               
required  to  leave the  area  even  when  they  could do  so  in                                                               
complete safety. In effect, they  would be allowed to stand their                                                               
ground.  Paragraph (4)  maintains  a person  is  not required  to                                                               
leave the  area when protecting  any child  or a member  of one's                                                               
8:49:53 AM                                                                                                                    
These are significant changes because  they recognize the ability                                                               
of a  person to stand their  ground and to use  deadly force even                                                               
recognizing the fact  that a person could leave the  scene of the                                                               
encounter  with safety.  This is  an  expansion of  the right  of                                                               
self-defense and it  should make people feel  more comfortable if                                                               
confronted with that situation.                                                                                                 
8:50:23 AM                                                                                                                    
Section 4 contains stylistic changes,  which make it read better.                                                               
It  essentially says  that a  person could  use force  to protect                                                               
another to the  extent that the other person could  use force. If                                                               
it were a  child being defended, the person  defending that child                                                               
would not be forced to retreat from the area.                                                                                   
Section 5  is a minor  amendment, which  would allow guests  in a                                                               
home to use  non-deadly force to prevent trespassers,  and to use                                                               
deadly force to prevent burglaries.                                                                                             
Section  6 is  amended  to  allow deadly  force  when a  person's                                                               
vehicle  is  being carjacked.  Mr.  Guaneli  said carjackers  are                                                               
generally  desperate individuals  and allowing  citizens to  stop                                                               
the carjacking  would be worthwhile.  Additionally if  there were                                                               
another person  inside the vehicle  it would be allowable  to use                                                               
deadly force to terminate the theft.                                                                                            
8:53:30 AM                                                                                                                    
Section  6 (f)  makes it  clear that  a person  does not  have to                                                               
leave the area  once that person has stopped  a crime. Subsection                                                               
(g) is  the definition  of a carjacking,  and vehicle  is defined                                                               
broadly to include aircraft and watercraft.                                                                                     
Section 7 is repealed.                                                                                                          
MR. GUANELI  cautioned that people  should not be allowed  to use                                                               
deadly force  for minor issues,  such as trespassing. Due  to the                                                               
many property disputes in Alaska, this is important to clarify.                                                                 
8:56:07 AM                                                                                                                    
MR. GUANELI  stated SB 200  is a good  bill that deals  with gang                                                               
activity  and  it  also  gives honest  citizens  the  ability  to                                                               
protect themselves and their families.                                                                                          
8:56:52 AM                                                                                                                    
SENATOR THERRIAULT  said Alaskans have always  been supportive of                                                               
Alaskans  using weapons  for self-protection,  but most  everyone                                                               
would agree that  convicted felons would lose that  right. On the                                                               
other hand, he said, the majority  of Alaskans would agree that a                                                               
guest in  a home, even  if he were  a convicted felon,  should be                                                               
allowed  to assist  a homeowner  in protecting  his property  and                                                               
9:00:28 AM                                                                                                                    
SENATOR  HUGGINS referred  to  Section 6  and  asked Mr.  Guaneli                                                               
whether the  definition of carjacking  would include  robbing the                                                               
car owner as well.                                                                                                              
MR.  GUANELI responded  with the  distinction  between a  vehicle                                                               
theft and  carjacking. Vehicle theft  generally doesn't  pose the                                                               
same threat  as a carjacking,  which happens when the  vehicle is                                                               
taken with force.                                                                                                               
SENATOR HUGGINS  asked for clarification whether  the perpetrator                                                               
would have to rob the person as well as take the vehicle.                                                                       
MR. GUANELI admitted that was an excellent point.                                                                               
9:03:38 AM                                                                                                                    
CHAIR  SEEKINS agreed  and said  clarification of  the definition                                                               
was needed.                                                                                                                     
MR. GUANELI suggested a conceptual amendment might clarify it.                                                                  
9:05:04 AM                                                                                                                    
SENATOR THERRIAULT moved Amendment 1 conceptually.                                                                              
Section 6,  subsection (g), after  the words "robbery  of" insert                                                               
"a  vehicle  from..." After  the  words  "possession of",  insert                                                               
"that." Hearing no objection, Amendment 1 was adopted.                                                                          
9:06:02 AM                                                                                                                    
SENATOR  GUESS  referred  to  Section  2,  subparagraph  (C)  and                                                               
admitted she was  having a hard time accepting  that the activity                                                               
describes a gang establishing territory.                                                                                        
MR. GUANELI informed the committee it  would be a matter of proof                                                               
for the prosecutor. Proof would have  to be shown that the person                                                               
did  have a  history of  gang violence.  That particular  section                                                               
would allow the  prosecution to bring forward  evidence that they                                                               
previously could not  bring. It would assist in  painting a clear                                                               
picture  to the  jury of  what  really was  happening during  the                                                               
incident. Oftentimes  due to the inadmissibility  of evidence the                                                               
jury  is prevented  from seeing  the full  picture. The  criminal                                                               
division is  fully prepared to bear  the burden of proof  and the                                                               
DOL is comfortable with it.                                                                                                     
9:08:18 AM                                                                                                                    
SENATOR GUESS  advised committee  members that  she had  to leave                                                               
for another meeting.                                                                                                            
CHAIR SEEKINS asked  Mr. Guaneli whether the  section would apply                                                               
in  terms  of  battles  between   gangs  that  occur  in  neutral                                                               
MR.  GUANELI  said  yes.  Oftentimes turf  battles  do  start  in                                                               
neutral territory. The ultimate intent would have to be proven.                                                                 
SENATOR FRENCH commented it was  difficult to figure out how many                                                               
different prongs  that Section 2, subparagraph  (C) contained. He                                                               
asked whether  a person could  claim self-defense in  response to                                                               
perceived  conduct by  a rival  or perceived  rival, and  whether                                                               
that person could use deadly force.                                                                                             
9:11:04 AM                                                                                                                    
MR. GUANELI explained it would  be a separate way of establishing                                                               
[indisc].  He pointed  to line  25 and  highlighted "for  control                                                               
over  the area."  The end  of that  sentence highlights  that the                                                               
action  would   have  to  be   intent  to  control  an   area  or                                                               
SENATOR FRENCH emphasized  it was important to make  a record for                                                               
the  argument. There  are  many different  types  of rivals,  for                                                               
example, sports rivals or love  rivals. He added, in reference to                                                               
subparagraph  (D),  felons could  still  use  a baseball  bat,  a                                                               
crossbow, or a taser.                                                                                                           
MR. GUANELI agreed  all of those types of weapons  would be legal                                                               
for an ex-felon to possess.                                                                                                     
CHAIR SEEKINS  noted it wasn't  only felons who  had restrictions                                                               
to firearms.                                                                                                                    
MR.  GUANELI agreed.  Under  federal law  a  person convicted  of                                                               
certain types  of domestic violence assaults  are also prohibited                                                               
from having firearms.                                                                                                           
9:13:24 AM                                                                                                                    
CHAIR  SEEKINS  noted  someone   convicted  of  a  fourth  degree                                                               
domestic violence assault  could no longer be able  to defend him                                                               
or herself with a firearm.                                                                                                      
MR. GUANELI agreed.                                                                                                             
SENATOR FRENCH  clarified that  the exclusion  from the  "duty to                                                               
retreat" does not trump the  remaining common law prohibitions on                                                               
self-defense, which  says a person  can't be the  first aggressor                                                               
or be involved in mutual combat.                                                                                                
MR.  GUANELI  agreed. All  of  the  common law  principles  still                                                               
apply.  Additionally, the  general requirement  for using  deadly                                                               
force is that it has to be reasonably necessary to do so.                                                                       
9:15:02 AM                                                                                                                    
SENATOR FRENCH posed  a hypothetical where a woman  takes a man's                                                               
car,  puts her  children  in the  back seat,  and  drives off  to                                                               
escape an  abusive situation. He  asked whether the man  would be                                                               
able to claim self-defense if he shot and killed the woman.                                                                     
MR. GUANELI  responded that was  an interesting  hypothetical. If                                                               
it were  his car, she  would not have  the authority to  take it.                                                               
Under the provision, deadly force could be used.                                                                                
SENATOR FRENCH  asked whether  the state would  be able  to claim                                                               
necessity. The  vehicle theft  would have  been a  lesser offense                                                               
than continued assault on her and her children.                                                                                 
9:17:10 AM                                                                                                                    
MR.  GUANELI said  the general  defense of  necessity would  mean                                                               
that no  one could  possibly prosecute the  woman for  taking the                                                               
car. From  the standpoint of the  man, however, his car  is being                                                               
stolen. Under  the provision, he  could use deadly force  to stop                                                               
the theft because  there are other persons in  the car. Obviously                                                               
the intent  is not  to allow self-defense  in that  situation. He                                                               
offered to give  some thought to the situation  and admitted that                                                               
was not a far-fetched scenario.                                                                                                 
SENATOR FRENCH  said he  did not  have an  easy solution  for the                                                               
concern. Other than that, he said he liked the bill.                                                                            
CHAIR  SEEKINS  asked Mr.  Guaneli  the  definition of  "official                                                               
9:19:47 AM                                                                                                                    
MR. GUANELI advised  official duties of a peace  officer would be                                                               
those  imposed by  the agency  that employs  the police  officer.                                                               
Many agencies  have an expectation  that if something  serious is                                                               
happening, the off-duty officer should take action.                                                                             
CHAIR SEEKINS observed most people  would use whatever they could                                                               
find to  defend him or  herself and not necessarily  be concerned                                                               
at the moment whether the  firearm was illegal under federal law.                                                               
He expressed concern that the  legislation might prohibit someone                                                               
from using a firearm to defend him or herself.                                                                                  
9:24:31 AM                                                                                                                    
MR. GUANELI responded the bill  could be narrowed to clarify that                                                               
a convicted felon would not be able to use an illegal firearm.                                                                  
SENATOR  THERRIAULT said  he had  not given  much thought  to the                                                               
domestic  violence  aspect. He  agreed  with  Chair Seekins  that                                                               
situation could  be problematic  since it is  not unheard  of for                                                               
lawyers  to advise  clients to  provoke a  situation in  order to                                                               
obtain a restraining order.                                                                                                     
9:27:07 AM                                                                                                                    
CHAIR SEEKINS said a narrower  definition would be necessary. The                                                               
intent is  to dis-allow dangerous  felons from using  weapons and                                                               
then claiming self-defense.                                                                                                     
SENATOR HUGGINS agreed with Senator Therriault.                                                                                 
SENATOR  FRENCH   offered  a  conceptual  amendment   to  specify                                                               
convicted felons.                                                                                                               
9:29:15 AM                                                                                                                    
CHAIR SEEKINS  said he would  be satisfied if  Senator Therriault                                                               
could work on that. He  then posed a hypothetical situation where                                                               
someone could  be trying  to steal something  that is  illegal to                                                               
MR. GUANELI  noted as  the law is  currently written;  the person                                                               
being robbed  would still  be able  to protect  himself, although                                                               
there is  an exception for being  a participant in a  felony drug                                                               
CHAIR  SEEKINS  clarified  a  person has  the  right  to  protect                                                               
themselves against robbery even if it is an illegal substance.                                                                  
9:32:09 AM                                                                                                                    
CHAIR  SEEKINS asked  Mr. Guaneli  the reason  that the  title of                                                               
Section 4 does not identify defense of self.                                                                                    
MR. GUANELI said  the contents of Section 4 make  it clear that a                                                               
person  could protect  themselves and  another person.  The first                                                               
draft   included   specific   titles   for   clarification.   The                                                               
legislative drafter felt  it was better to leave the  title as it                                                               
was. From a  legal standpoint, the title of the  provision has no                                                               
legal significance.                                                                                                             
9:34:03 AM                                                                                                                    
CHAIR  SEEKINS asked  whether  Mr. Guaneli  felt  that Section  4                                                               
allows the use  of the same force  as Section 2 and  Section 3 if                                                               
defending someone else.                                                                                                         
MR. GUANELI said yes.                                                                                                           
SENATOR THERRIAULT  said his  intent during  the re-write  was to                                                               
make the  law more understandable.  He suggested the  Chair might                                                               
ask the drafter to clarify Section 4 by adjusting the title.                                                                    
9:35:57 AM                                                                                                                    
CHAIR  SEEKINS said  the  titles were  inconsistent  but then  he                                                               
questioned the need to change it.                                                                                               
SENATOR THERRIAULT  offered Amendment 2 conceptually.  On Page 2,                                                               
lines 28-29,  add language to  limit the provision to  people who                                                               
have been convicted of felonies.                                                                                                
9:37:53 AM                                                                                                                    
Hearing no objection, Amendment 2 was adopted.                                                                                  
9:38:24 AM                                                                                                                    
SENATOR  FRENCH said  for the  record he  was concerned  over the                                                               
domestic violence hypothetical he offered earlier.                                                                              
CHAIR SEEKINS said  it is not the  intent of the bill  to allow a                                                               
person to use deadly force  against another person who is fleeing                                                               
an abusive situation.                                                                                                           
MR.  GUANELI noted  something could  be drafted  to address  that                                                               
9:39:57 AM                                                                                                                    
CHAIR SEEKINS asked for public testimony.                                                                                       
9:40:14 AM                                                                                                                    
AUSTIN  MAHALKEY,  Glennallen,  said  it  appeared  most  of  his                                                               
questions had  been answered but  he was concerned about  a peace                                                               
officer being injured due to not identifying him or herself.                                                                    
SENATOR  THERRIAULT  said that  language  was  originally in  the                                                               
bill.  He  speculated the  drafter  felt  it  was given  that  an                                                               
officer,  in the  official course  of duty,  would have  properly                                                               
identified him or herself.                                                                                                      
MR. STANCLIFF agreed and said the drafter felt that was covered.                                                                
SENATOR THERRIAULT  said in the  terminology it implies  that the                                                               
officer  has taken  the appropriate  steps of  the department  to                                                               
provide adequate  identification. He  offered to  double-check it                                                               
but  suspected  the  drafter  took   that  language  out  due  to                                                               
9:42:58 AM                                                                                                                    
CHAIR  SEEKINS  said  he  understood   that  peace  officers  and                                                               
emergency response  personnel have an  affirmative responsibility                                                               
to identify their official capacity.                                                                                            
MR.  STANCLIFF agreed,  with the  exception  of officers  working                                                               
9:44:33 AM                                                                                                                    
CHAIR SEEKINS closed public testimony.                                                                                          
SENATOR THERRIAULT  pledged to continue  to work on the  bill. He                                                               
moved CSSB 200 (JUD) from  committee as amended and with attached                                                               
fiscal notes. Hearing no objection, the motion carried.                                                                         

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