Legislature(1995 - 1996)
03/28/1995 03:35 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SSTA - 3/28/95 HB 74 ASSAULT BY ADULTS ON CHILDREN SENATOR SHARP brings up HB 74 as the next order of business before the Senate State Affairs Committee and calls the first witness. TAPE 95-13, SIDE B REPRESENTATIVE CON BUNDE, prime sponsor of HB 74, relays information contained in the sponsor substitute to the committee. Representative Bunde states there is a lot of public support behind HB 74. Number 555 SENATOR RANDY PHILLIPS commented he has had one phone call on HB 74, and that call was in opposition to HB 74. Senator Phillips asks where the case is right now. REPRESENTATIVE BUNDE responds the case is in the process of going to trial. Prosecutors are having to be "encouraged" to take the case to trial; they were going to plea bargain. SENATOR RANDY PHILLIPS asks what the maximum penalty would be. PATTY SWENSON, Aide to Representative Bunde, replies the maximum penalty would be one year incarceration and a $5,000 fine. REPRESENTATIVE BUNDE adds he has not heard of any instance in which first time misdemeanants have been required to serve prison time. There is usually a suspended sentence. SENATOR RANDY PHILLIPS refers to the old saying which basically states law shouldn't be made because of one case. He also asked how HB 74 would affect a property owner's right to protect his or her property. Number 535 REPRESENTATIVE BUNDE replies, out of the hundreds, if not over one thousand responses he has received, Senator Phillips is only about the fourth person to assert that HB 74 might affect a property owner's right to protect their property. Will a property owner be charged with a felony for protecting his or her property? Representative Bunde stresses that prosecutorial discretion will protect the property owner. First, the kid threatening the property or the property owner will have to convince a prosecutor that he was attacked, and was not the cause of the attack. He understands the concern, but does not see it as a problem. SENATOR RANDY PHILLIPS reiterates the only call he has received on HB 74 was in opposition to the bill, for the previously mentioned scenario. We are referring to one case; unless there are a number of cases in which this problem is occurring, he hates to pass a law because of one case. SENATOR DONLEY thinks, in regards to Senator Phillips' concern that law not be made because of one case, that there are probably a lot of cases in which HB 74 would apply, which have simply not been as visible as the one case which was the impetus behind the bill. SENATOR RANDY PHILLIPS asks Senator Donley if he thinks HB 74 would affect the rights of property owners to protect their property. Number 515 SENATOR DONLEY responds that any steps a property owner takes to defend his or her property would not be made any more legal or illegal by HB 74. It just changes the potential maximum penalty. SENATOR RANDY PHILLIPS is worried that if a property owner physically escorts a trespasser from his or her property, they will be charged with a felony. SENATOR DONLEY replies a property owner is, and would still be allowed, to use reasonable force to protect his or her property. SENATOR RANDY PHILLIPS asks if a property owner could use a shotgun. SENATOR DONLEY responds that is not reasonable force; that is deadly force. HB 74 will not affect whether the property owner's defense is legal or not. SENATOR RANDY PHILLIPS asks what if the trespasser is destroying property. SENATOR DONLEY replies HB 74 will not affect the parameters of what property owners can and cannot do to defend their property. REPRESENTATIVE BUNDE adds that, under existing statute, reasonable force may be used to defend one's property. In some cases, reasonable force could be pretty aggressive; in other cases, depending on the situation, a property owner's response could be considered assault. Representative Bunde understands Senator Phillips' concern. HB 74 will not change the restrictions by which a property owner is constrained in defending his or her property or life. The only change would be, if there was a charge brought against a property owner, and if the prosecutor was convinced that it was a really egregious case, the property owner could be charged with a felony instead of a class A misdemeanor. We all know that in practical application, a first time conviction receiving the maximum penalty allowed for a class A misdemeanor is more severe than the minimum penalty for a felony. There is public outcry that this tool be available to prosecutors, if necessary. [Representative Bunde show the committee approximately 500 signatures on petitions in favor of HB 74, and informs the committee he has more in his office.] Number 480 SENATOR DONLEY states he is concerned with the use of deadly force, because he thinks there is too much constraint put on property owners, in that one is supposed to allow one's self to be endangered before protecting one's self. He did look into that as Judiciary Chairman several years ago, and satisfied himself that Alaska Statutes are pretty good on that subject. Deadly force is allowable when one is physically threatened. Other reasonable force is allowed to protect one's property. To go beyond that, to allow property owners to shoot people because they are carrying off a bird bath--I don't know if you would want to do that. SENATOR RANDY PHILLIPS thinks the question needs to be asked. Secondly, should law be made on one publicized case? SENATOR DONLEY agrees with that, but he thinks that whole area of law should be revisited and that there should be stronger assault laws. It is a shame it has to be driven by the event that was the impetus for HB 74. He thinks there is a problem with assault being taken to lightly by the justice system. Judges, police, and prosecutors become desensitized to assault with all the murders, rapes, and kidnappings with which they have to deal. SENATOR LEMAN makes a motion to discharge HB 74 from the Senate State Affairs Committee with individual recommendations. CHAIRMAN SHARP, hearing no objection, orders HB 74 be released from committee with individual recommendations.