Legislature(2013 - 2014)HOUSE FINANCE 519

02/25/2013 01:30 PM FINANCE

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02:03:39 PM Start
02:09:18 PM HB24
03:35:32 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 2:00 pm --
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  HOUSE FINANCE COMMITTEE                                                                                       
                     February 25, 2013                                                                                          
                         2:03 p.m.                                                                                              
2:03:39 PM                                                                                                                    
CALL TO ORDER                                                                                                                 
Co-Chair Stoltze called the  House Finance Committee meeting                                                                    
to order at 2:03 p.m.                                                                                                           
MEMBERS PRESENT                                                                                                               
Representative David Guttenberg                                                                                                 
Representative Alan Austerman, Co-Chair                                                                                         
Representative Bill Stoltze, Co-Chair                                                                                           
Representative Mark Neuman, Vice-Chair                                                                                          
Representative Mia Costello                                                                                                     
Representative Bryce Edgmon                                                                                                     
Representative Les Gara                                                                                                         
Representative Lindsey Holmes                                                                                                   
Representative Cathy Munoz                                                                                                      
Representative Steve Thompson                                                                                                   
MEMBERS ABSENT                                                                                                                
Representative David Guttenberg                                                                                                 
Representative Scott Kawasaki, Alternate                                                                                        
Representative Tammie Wilson                                                                                                    
ALSO PRESENT                                                                                                                  
Representative  Mark  Neuman,   Sponsor;  Lieutenant  Rodney                                                                    
Dial, Deputy Commander for  a Detachment (Southeast), Alaska                                                                    
State Troopers;  Quinlan Steiner, Director,  Public Defender                                                                    
Agency, Department of Administration.                                                                                           
PRESENT VIA TELECONFERENCE                                                                                                    
Joseph Masters,  Commissioner, Department of  Public Safety;                                                                    
James  Fayette,   Attorney,  Anchorage;   Richard  Svobodny,                                                                    
Deputy  Attorney General,  Criminal Division,  Department of                                                                    
HB 24     SELF DEFENSE                                                                                                          
          HB 24 was HEARD and HELD in committee for further                                                                     
HOUSE BILL NO. 24                                                                                                             
     "An Act relating to self-defense in any place where a                                                                      
     person has a right to be."                                                                                                 
2:09:18 PM                                                                                                                    
REPRESENTATIVE MARK NEUMAN,  SPONSOR, informed the committee                                                                    
that the  provision related to self-defense  of someone else                                                                    
was not included  in HB 24 but was contained  in an existing                                                                    
statute, AS  11.81.340. He provided  the information  to the                                                                    
committee (copy on file).                                                                                                       
JOSEPH  MASTERS, COMMISSIONER,  DEPARTMENT OF  PUBLIC SAFETY                                                                    
(via  teleconference),  commented  on  the  legislation.  He                                                                    
remarked  that  the  Alaska Association  of  the  Chiefs  of                                                                    
Police had  sent a communication informing  the committee of                                                                    
its  position  on  the  legislation.  He  offered  that  the                                                                    
association's opinion did not  represent the position of the                                                                    
entire   membership.   The   provisions  in   HB   24   were                                                                    
controversial within the law  enforcement community. He felt                                                                    
that adequate safeguards existed  in current law to disallow                                                                    
false  claims  of  self-defense. The  Department  of  Public                                                                    
Safety  (DPS) was  examining how  changes in  the law  would                                                                    
impact  the potential  for  increased  use of  unjustifiable                                                                    
deadly   force   or   burden   law   enforcement   officer's                                                                    
investigations of  self-defense. He thought that  any impact                                                                    
would be  minimal. He indicated that  similar arguments were                                                                    
expressed  in  the  early  2000's  regarding  conceal  carry                                                                    
permit changes. He relayed that  according to a recent study                                                                    
the rate  of gun violence  in the  state declined over  a 30                                                                    
year period despite significant  changes in handgun laws. He                                                                    
guessed  that  passage of  the  bill  would not  affect  the                                                                    
downward trend in violent crime.                                                                                                
Co-Chair Stoltze asked for the  department's position on the                                                                    
legislation.   Commissioner   Masters   replied   that   the                                                                    
department was in support of HB 24 with some reservation.                                                                       
Representative   Munoz  asked   for  Commissioner   Master's                                                                    
personal   position  on   the  bill.   Commissioner  Masters                                                                    
responded that he was personally in favor of the bill.                                                                          
LIEUTENANT RODNEY  DIAL, DEPUTY  COMMANDER FOR  A DETACHMENT                                                                    
(SOUTHEAST),  ALASKA STATE  TROOPERS,  DEPARTMENT OF  PUBLIC                                                                    
SAFETY,  voiced  that  the Alaska  State  Troopers  were  in                                                                    
support of the legislation.                                                                                                     
Co-Chair Stoltze asked how  charges against someone claiming                                                                    
self-defense originated.  Lieutenant Dial answered  that DPS                                                                    
investigated  use of  force  situations.  The department  in                                                                    
conjunction  with  the  Department  of  Law  (DOL)  and  the                                                                    
District  Attorney's office  arrived  at  either a  charging                                                                    
decision  or  a  decision  not  to  charge.  The  department                                                                    
determined that passage of the  legislation would not change                                                                    
the process.                                                                                                                    
2:17:48 PM                                                                                                                    
Representative  Gara  asked   for  clarification  about  the                                                                    
department's  position  on  the bill.  Commissioner  Masters                                                                    
replied that the  department supported the bill  and that he                                                                    
personally was strongly in favor the legislation.                                                                               
Representative Edgmon  cited Page  2, line  3, of  the bill,                                                                    
"(5) in  any other  place where  the person  has a  right to                                                                    
be." He inquired  about "where a person has a  right to be."                                                                    
He asked  for clarification. He wondered  whether there were                                                                    
places a person should not have  a gun and how the law would                                                                    
work  in  those  instances. Lieutenant  Dial  answered  that                                                                    
there were  locations that  individuals were  "not supposed"                                                                    
to have  firearms. He noted that  domestic violence shelters                                                                    
and courthouses were examples.                                                                                                  
Co-Chair  Stoltze warned  that subjectivity  existed in  the                                                                    
terms, "shouldn't be"  or "not supposed to  be" He requested                                                                    
terms  that   defined  precise  legal   prohibitions,  i.e.,                                                                    
"prohibited from".                                                                                                              
Lieutenant  Dial   continued  that  DOL  and   the  District                                                                    
Attorney's office decided whether  the person who acted with                                                                    
deadly  force was  legally in  the right  place. He  offered                                                                    
that trespassing was an example of  a place a person did not                                                                    
have a right to be.                                                                                                             
Representative   Edgmon  believed   that   the  phrase   was                                                                    
subjective. He  wondered why the  bill would not  affect the                                                                    
department's current procedures.                                                                                                
Lieutenant Dial reported that two  murders took place in the                                                                    
last  six  months.  He   reiterated  that  the  department's                                                                    
responsibility was  to fully  investigate the  incidents and                                                                    
report  the  facts to  the  districts  attorney's office  in                                                                    
order  to   determine  charging  decisions,   regardless  of                                                                    
current  law.   He  supposed  that  some   elements  of  the                                                                    
legislation could  affect the process for  the Department of                                                                    
Vice-Chair Neuman  highlighted some  of the  discussion from                                                                    
the Judiciary Committee.  He reported that that  if a person                                                                    
was  on private  property the  person did  not have  a legal                                                                    
right to  be there.  Conversely, there  were places  where a                                                                    
person did have a right to be i.e., state land.                                                                                 
Representative Munoz asked whether  the provision "any other                                                                    
place  where the  person  has  a right  to  be" weakened  or                                                                    
nullified the presumption to avoid  the use of deadly force.                                                                    
Lieutenant  Dial  believed  that   it  did  not  weaken  the                                                                    
Representative Gara  cited AS  11.81.335 that  justified the                                                                    
use of deadly  force and noted that it was  not contained in                                                                    
the bill.                                                                                                                       
AT EASE                                                                                                                         
2:25:46 PM                                                                                                                    
2:25:55 PM                                                                                                                    
Representative  Gara cited  AS 11.81.335(b).  He interpreted                                                                    
the statute to mean that a  person must retreat if one could                                                                    
do so in  complete safety. He asked  whether the legislation                                                                    
changed the  statute and  allowed the  use of  deadly force.                                                                    
Lieutenant Dial answered  that a person was  not required to                                                                    
retreat under the provisions in HB 24.                                                                                          
Representative Gara surmised that  HB 24 extended a person's                                                                    
right to use deadly force in  a public place when they could                                                                    
retreat without  harming a person. Lieutenant  Dial deferred                                                                    
the question to  DOL. He offered that the  bill extended the                                                                    
same rights  to self-defense  in public places  as permitted                                                                    
in a home.                                                                                                                      
Vice-Chair Neuman maintained that HB  24 did not mandate the                                                                    
use of  deadly force. The  bill clarified that the  rules of                                                                    
self-defense  in the  home also  applied to  where a  person                                                                    
"had the legal right to  be." The legislation added a clause                                                                    
to  existing Alaska  law  that  did not  require  a duty  to                                                                    
retreat in  certain instances. Currently  under state  law a                                                                    
person was required to retreat  [in public places]. The bill                                                                    
extended specific  "rights to  defend yourself"  in contrast                                                                    
to having to retreat.                                                                                                           
JAMES  FAYETTE,  ATTORNEY, ANCHORAGE  (via  teleconference),                                                                    
shared that he  worked as a prosecutor for  DOL in Anchorage                                                                    
but was testifying  on his own behalf. He  stressed that his                                                                    
position  on  the  legislation  was  personal  and  did  not                                                                    
represent the administration. He  discussed his resume as an                                                                    
experienced homicide prosecutor for  20 years. He noted that                                                                    
he   taught  self-defense   law.   He   spoke  against   the                                                                    
legislation. He  testified against  the bill in  prior years                                                                    
and voiced  his continued  opposition. He believed  the bill                                                                    
was "dangerous  and counterproductive." He knew  other state                                                                    
prosecutors  and homicide  detectives who  were against  the                                                                    
legislation.  His  opposition  was   based  on  two  primary                                                                    
   · The elimination of the duty to retreat in public                                                                           
     places benefited dangerous and violent criminals. The                                                                      
     self-defense justification was frequently used by                                                                          
     violent criminals in court.                                                                                                
   · The change was unnecessary. He reported that "there                                                                        
     was not a single specific case" in recent years that                                                                       
     "the bill would remedy." He stated that, "the bill was                                                                     
     a solution in search of a problem."                                                                                        
Mr. Fayette  referenced previous  testimony from  Brian Judy                                                                    
[Senior  State Liaison]  of the  National Rifle  Association                                                                    
(NRA) [02/21/13]. He restated  the testimony, "House Bill 24                                                                    
is  important self-defense  legislation  that would  provide                                                                    
that a law abiding person has  no duty to retreat." He cited                                                                    
Mr. Judy's  use of the  phrase, "law abiding".  He announced                                                                    
that he would support the  legislation if it only applied to                                                                    
law  abiding  citizens,  but  legislation  specific  to  law                                                                    
abiding citizens was impossible  to create. He stressed that                                                                    
the bill  would benefit  criminals, i.e.,  domestic abusers,                                                                    
road rage  shooters, drug dealers,  gang members,  who would                                                                    
use  the law  to  claim self-defense.  He  reported that  he                                                                    
routinely  worked on  analogous  cases.  Criminals were  not                                                                    
automatically  disqualified  from   self-defense  claims  in                                                                    
court. The  jury decided whether a  disqualifier applied. He                                                                    
hypothesized a  situation where a  shooting took place  in a                                                                    
parking lot between two rival  gang members that resulted in                                                                    
a fatality. The evidence  under AS 11.81.330 [the provisions                                                                    
that disqualified the use of  force e.g., initial aggressor,                                                                    
mutual  combat,   rival  group  retaliatory   activity]  was                                                                    
unclear.  He  offered  that   often  the  prosecutor's  most                                                                    
powerful argument to disqualify  a claim of self-defense was                                                                    
that the  necessity to  shoot was  avoidable if  the shooter                                                                    
retreated. Current  law required that a  person must retreat                                                                    
if one can in complete  safety. The prosecutor must disprove                                                                    
self-defense  beyond a  reasonable  doubt  to the  unanimous                                                                    
satisfaction  of  a  jury  or   the  trial  resulted  in  an                                                                    
2:37:24 PM                                                                                                                    
Mr.  Fayette  voiced  that  the bill  removed  the  duty  to                                                                    
retreat  from the  existing argument.  He considered  a road                                                                    
rage scenario  with two rival  gang members, one  claimed to                                                                    
see a gun  in the other car and shoots.  The duty to retreat                                                                    
meant that the shooter could pull  over or slow down and the                                                                    
death was preventable. He reported  that under current law a                                                                    
prosecutor could  argue that if the  assailant retreated the                                                                    
shooting   was  avoidable.   The  legislation   revoked  the                                                                    
provision and nullified the duty to retreat argument.                                                                           
Mr.  Fayette  asserted that  the  bill  was unnecessary.  He                                                                    
communicated  that existing  law protected  home owners  and                                                                    
authorized  the  right  for   people  to  defend  themselves                                                                    
without duty  to retreat at  home. In 2006, the  statute was                                                                    
expanded  to  include  business owners  in  their  place  of                                                                    
business and  guests in a home.  He pointed out that  no one                                                                    
in the  state was  unfairly prosecuted in  a claim  of self-                                                                    
defense.  He observed  that the  legislation was  part of  a                                                                    
nationwide  effort.   He  thought   that  a   perception  of                                                                    
prosecution  abuse existed  in other  states where  criminal                                                                    
defendants did  not have  the right to  consider a  claim of                                                                    
self-defense by a grand jury.                                                                                                   
Mr. Fayette  declared that  he was  not an  "anti-gun rights                                                                    
crusader." He was  a gun owner, army veteran,  and a "fairly                                                                    
conservative  person." He  was "keenly  aware of  a person's                                                                    
right to defend themselves."  He had prosecuted gang members                                                                    
and murderers in  Anchorage for 20 years and  could become a                                                                    
target  for violent  retribution.  He opined  that the  bill                                                                    
"was a dangerous  expansion of the self-defense  law for its                                                                    
potential  for unintended  consequences. The  bill makes  it                                                                    
easier  to  kill  people  and the  killers  to  claim  self-                                                                    
defense." He urged for rejection of the bill.                                                                                   
Representative Costello  referred to Mr.  Fayette's comments                                                                    
about  gang  members. She  asked  whether  he believed  gang                                                                    
members were aware  of current laws. Mr.  Fayette replied in                                                                    
the negative. He answered that  gang members were not aware,                                                                    
but their lawyers were obligated  to pay attention. A lawyer                                                                    
will use the law to  claim self-defense for their client. He                                                                    
added  that  no law  abiding  person  wanted to  expand  the                                                                    
rights of criminals, which is what the bill accomplished.                                                                       
Representative Gara  pointed to potential  confusion related                                                                    
to  the duty  to retreat  in current  law. He  asked for  an                                                                    
explanation.   Mr.  Fayette   answered  that   "self-defense                                                                    
litigation  was extremely  confusing". The  prosecutor "must                                                                    
disprove a negative proposition  beyond a reasonable doubt."                                                                    
He explained that a prosecutor  must refute a claim of self-                                                                    
defense  beyond  a reasonable  doubt.    He pointed  to  two                                                                    
statutes AS  11.81.330 and AS 11.81.335.  He instructed that                                                                    
the basic  elements of the  self-defense law for the  use of                                                                    
non-deadly  force were  contained in  AS 11.81.330.  Special                                                                    
rules  for  the use  of  deadly  force  were defined  in  AS                                                                    
11.81.335.   Together,   the    statutes   shaped   multiple                                                                    
propositions into  a justification defense  of self-defense.                                                                    
If enough  evidence existed  to support  the claim  of self-                                                                    
defense, a  prosecutor must disprove the  self-defense claim                                                                    
to  a  jury  beyond  a  reasonable  doubt.  He  related  his                                                                    
personal experience in the courtroom.  He emphasized that in                                                                    
cases of street crime the  evidence was indistinct making it                                                                    
difficult to  ascertain whether  the special  rules applied.                                                                    
Most often  a prosecutor  relied on the  duty to  retreat to                                                                    
frame the argument against a claim of self-defense.                                                                             
2:49:00 PM                                                                                                                    
Representative Gara  pointed to  the highly  publicized case                                                                    
of Trayvon  Martin [Florida, 2012], where  the police warned                                                                    
the  shooter  not  to  follow   Mr.  Martin.  He  asked,  in                                                                    
reference to  current law,  whether HB  24 would  change the                                                                    
outcome  if  a similar  situation  happened  in Alaska.  Mr.                                                                    
Fayette stated  that the facts  of the Martin case  were not                                                                    
fully reported. He  discussed that in a  similar scenario in                                                                    
Alaska, the  bill would work  in the shooter's  defense. The                                                                    
prosecutor would lose the ability  to make a duty to retreat                                                                    
argument,  which  increased  the   chance  of  the  shooters                                                                    
Vice-Chair Neuman asked whether  all individuals involved in                                                                    
a crime  of self-defense should face  immediate arrest while                                                                    
law  enforcement subsequently  investigated  the facts.  Mr.                                                                    
Fayette replied in  the negative. He stressed  that the case                                                                    
should be  "diligently investigated" by law  enforcement and                                                                    
submitted to a grand jury before arrests were made.                                                                             
QUINLAN   STEINER,   DIRECTOR,   PUBLIC   DEFENDER   AGENCY,                                                                    
DEPARTMENT OF  ADMINISTRATION, remarked that the  agency had                                                                    
submitted a  zero fiscal note  due to the minimal  impact on                                                                    
how  the cases  would be  litigated. He  commented that  the                                                                    
question  of  self-defense and  the  duty  to retreat  "were                                                                    
interconnected  questions." He  stated that,  "the right  to                                                                    
use  self-defense was  mutually exclusive  from the  duty to                                                                    
retreat." He  discussed that  "deadly force"  was authorized                                                                    
when  an  imminent  threat  existed.  The  duty  to  retreat                                                                    
applied when an individual was  able to retreat in "complete                                                                    
and total safety." The issue  in self-defense cases was that                                                                    
the events did not occur  simultaneously and the question to                                                                    
determine  was  whether  deadly  force  was  authorized.  He                                                                    
opined  that the  duty  to retreat  arguments  was not  lost                                                                    
under  HB  24, but  the  legislation  would "reframe"  self-                                                                    
defense litigation. Current law did  not place the burden on                                                                    
a person (the non-aggressor) to  leave the scene; it did not                                                                    
authorize the use of deadly  force if the individual did not                                                                    
leave the scene  of the incident. The  initial aggressor had                                                                    
the duty  to retreat. He  did not  perceive a change  in the                                                                    
outcome of self-defense cases as a result of the bill.                                                                          
Representative  Gara   related  that  AS   11.81.330  listed                                                                    
disqualifiers  for a  claim of  self-defense;  one being  an                                                                    
initial   aggressor.  He   recalled   from  testimony   that                                                                    
determining  the initial  aggressor  was  difficult in  some                                                                    
cases. If  not provable,  the initial aggressor  could claim                                                                    
he/she acted  in self-defense. He asked  whether Mr. Steiner                                                                    
had  professionally experienced  a similar  situation.   Mr.                                                                    
Steiner answered that depending on  whether or not a witness                                                                    
was  present determined  the  difficulty  of a  self-defense                                                                    
case. He  elaborated that initial aggressor  aside; a person                                                                    
was still  accountable and required  to prove that  they had                                                                    
the authority to  use deadly force from  an imminent threat.                                                                    
The  situation  was the  opposite  of  the duty  to  retreat                                                                    
argument.  If  an imminent  threat  was  not present  deadly                                                                    
force was  not authorized.  He thought  that the  bill would                                                                    
not impact  the difficulty in  determining whether or  not a                                                                    
person was an initial  aggressor. Determining whether or not                                                                    
the person was  an initial aggressor was  a crucial question                                                                    
but separate from the authority to use deadly force.                                                                            
Representative Gara asked whether  currently a person had "a                                                                    
duty not to shoot" in public  places if one could retreat in                                                                    
complete  safety. He  wondered  if the  provision  in HB  24                                                                    
authorized that the  person did have the right  to use force                                                                    
in public places.  Mr. Steiner answered in  the negative. He                                                                    
stated  that  "if  you  change  the law  and  you  have  the                                                                    
opportunity to retreat  in complete and total  safety you do                                                                    
not have the justification to  shoot in the first place." He                                                                    
detailed that  the "mutually exclusive  question was  if you                                                                    
can retreat  you can't  shoot." Elimination  of the  duty to                                                                    
retreat will not  authorize the authority to  use force when                                                                    
a person never  possessed the authority in  the first place.                                                                    
He pointed  to the imminent  threat question and  noted that                                                                    
preceded the  duty to retreat and  established the authority                                                                    
to use force. He reiterated that  the law does not place the                                                                    
burden on a person to retreat.                                                                                                  
Representative Holmes  asked whether  HB 24 would  alter the                                                                    
number of  self-defense cases and  if the  legislation would                                                                    
increase the  number of successful self-defense  claims. Mr.                                                                    
Steiner  judged that  the legislation  would not  change the                                                                    
number  of  cases  or impact  the  outcome  of  self-defense                                                                    
2:59:02 PM                                                                                                                    
Representative Holmes wondered what  the bill would actually                                                                    
accomplish.  Mr.   Steiner  thought  that  the   bill  would                                                                    
"reframe  how the  issues  were  argued." The  justification                                                                    
would focus  on the  authority to use  deadly force  from an                                                                    
imminent threat rather than a duty to retreat.                                                                                  
Co-Chair  Stoltze  asked  about his  experience  related  to                                                                    
grand jury indictments of self-defense.  He asked whether it                                                                    
was  difficult  to  obtain an  indictment  for  self-defense                                                                    
cases. Mr. Steiner replied that  he did not present cases to                                                                    
the grand  jury. He discerned  that it was not  difficult to                                                                    
obtain an indictment with a proper probable cause argument.                                                                     
Co-Chair  Stoltze  related  personal  experience.  He  asked                                                                    
whether the state would experience  fewer or increased cases                                                                    
if "there was a higher hurdle  for the Department of Law" to                                                                    
charge for murder in a  self-defense case and how that would                                                                    
impact  the public  defender agency.  He  believed that  the                                                                    
legislation provided protection  against biased prosecutors,                                                                    
for  citizens who  were diligently  exercising the  right to                                                                    
defend themself.  Mr. Steiner restated that  the legislation                                                                    
would not have an impact on the state.                                                                                          
Representative  Costello  stated  that the  legislature  had                                                                    
addressed the  issue in previous  years. She  understood the                                                                    
requirements,  but wondered  whether it  was possible  for a                                                                    
person under imminent threat to  hurriedly determine a place                                                                    
to  retreat  in  a  public  place.  She  asked  how  a  jury                                                                    
addressed  the duty  to retreat.  Mr. Steiner  answered that                                                                    
the  state  was  required  to show  that  the  person  could                                                                    
retreat  in  complete  and total  safety.  The  state  would                                                                    
investigate  the circumstances  around the  event. The  jury                                                                    
would have to weigh the facts.                                                                                                  
Representative Costello  expressed skepticism that  the duty                                                                    
to retreat could be sufficiently established.                                                                                   
Representative Gara discussed current  law. He recapped that                                                                    
unless a person was at home,  work, or was a police officer,                                                                    
a person presented  with a situation to  retreat in complete                                                                    
and total safety must retreat.  He wondered what happened in                                                                    
a place where  a person was legally allowed to  be. He asked                                                                    
whether the  bill authorized  the use of  force in  a public                                                                    
place when  an avenue  of retreat  was present.  Mr. Steiner                                                                    
relayed  that  the current  statute  as  interpreted by  the                                                                    
courts meant that  a person could not "shoot"  someone if an                                                                    
opportunity to retreat in  complete safety presented itself.                                                                    
At that moment you did not  have the authority to use force,                                                                    
but  you  did not  have  to  retreat.  He thought  that  the                                                                    
wording of  the statute  juxtaposed with  the interpretation                                                                    
caused  confusion. A  person had  no obligation  to actually                                                                    
retreat just not use deadly force.                                                                                              
3:08:55 PM                                                                                                                    
RICHARD   SVOBODNY,   DEPUTY  ATTORNEY   GENERAL,   CRIMINAL                                                                    
DIVISION, DEPARTMENT OF  LAW (via teleconference), indicated                                                                    
that the impact  of the bill to the  department was minimal.                                                                    
The department would  not alter the case  review process for                                                                    
the grand  jury. He expounded that  the self-defense statute                                                                    
was implemented  in 1980. Since  then the  state experienced                                                                    
little change in  the number of self-defense  cases. A major                                                                    
change to the  statute occurred in 2006,  which extended the                                                                    
places  where   a  duty  to  retreat   was  not  authorized.                                                                    
Subsequently,  the homicide  rate  in  Alaska decreased.  He                                                                    
qualified that  there was not  a direct  correlation between                                                                    
the two  actions. He reported  that the use  of self-defense                                                                    
did  not increase  in most  of the  states that  had enacted                                                                    
similar  legislation. He  noted that  Florida's process  was                                                                    
substantially  different than  how Alaska  dealt with  self-                                                                    
defense cases (he referred  to Representative Gara's earlier                                                                    
question  about  the  Treyvon Martin  case  in  Florida.  In                                                                    
Alaska, the  question was decided  by a jury and  in Florida                                                                    
the determination was made by the  courts; it was not a fair                                                                    
comparison. He  communicated that in self-defense  cases the                                                                    
state needed to  disprove all of the  elements including the                                                                    
duty to retreat, beyond a  reasonable doubt. He stated that,                                                                    
self-defense  cases were  the most  "difficult defenses"  to                                                                    
face for a prosecutor.                                                                                                          
Mr.  Svobodny  addressed Representative  Costello's  earlier                                                                    
question  about   how  charging  decisions  were   made.  He                                                                    
explained that the department  thoroughly screened cases and                                                                    
only  proceeded  with  cases   when  self-defense  could  be                                                                    
disproven beyond a reasonable doubt.  He offered that he had                                                                    
experienced similar  self-defense cases  as Mr.  Fayette had                                                                    
when  it was  not possible  to discern  the elements  of the                                                                    
self-defense  case.  He  maintained   that  the  cases  were                                                                    
screened  out and  did not  proceed  to the  grand jury.  He                                                                    
reminded  the  committee  that  a  jury  ultimately  decided                                                                    
whether self-defense was warranted.                                                                                             
Mr. Svobodny  voiced that self-defense claims  were the only                                                                    
cases  where the  state must  "disprove a  negative" meaning                                                                    
that the person did not  act in self-defense; and refute the                                                                    
claim beyond  a reasonable  doubt. He  doubted that  the law                                                                    
would cause  a person to  "hesitate to act" to  defend one's                                                                    
life. He related that he  was explaining the process and not                                                                    
arguing  against  the bill.  He  restated  that he  did  not                                                                    
anticipate a financial, procedural,  or case load impact for                                                                    
DOL if the legislation was adopted.                                                                                             
Co-Chair Stoltze asked  how long Mr. Svobodny  had worked in                                                                    
criminal law  prosecutions for the department.  Mr. Svobodny                                                                    
answered that  he had worked  for the criminal  division for                                                                    
approximately 33 years and for DOL for a total of 35 years.                                                                     
Co-Chair Stoltze  asked what the department's  percentage of                                                                    
criminal  indictments was.  Mr. Svobodny  answered that  the                                                                    
goal was  100 percent.  He did not  know the  percentage. He                                                                    
stated  that  self-defense  arose in  homicide  and  serious                                                                    
assault cases.                                                                                                                  
Co-Chair  Stoltze referenced  Mr.  Fayette's testimony  that                                                                    
the   legislation  would   make   it   more  difficult   for                                                                    
prosecutors to obtain indictments  in self-defense cases. He                                                                    
asked for clarification. Mr. Svobodny  replied that he would                                                                    
question  the  ability  of  a   prosecutor  who  was  having                                                                    
difficulty obtaining indictments.                                                                                               
3:17:36 PM                                                                                                                    
Representative  Holmes asked  whether the  self-defense plea                                                                    
would be used more frequently  and with increased success if                                                                    
the bill  passed. Mr. Svobodny  answered that by the  time a                                                                    
self-defense case  preceded to a  jury many of  the elements                                                                    
and disqualifiers  were examined  and increased  success was                                                                    
Representative Holmes believed  the committee members shared                                                                    
the same goal of prosecuting  criminals. She wondered if the                                                                    
legislation  accidentally  helped  criminals.  Mr.  Svobodny                                                                    
replied that  if the department  was properly  executing the                                                                    
law no one  who legitimately acted in  self-defense would be                                                                    
Representative Gara  discussed previous year's  testimony by                                                                    
DOL that the bill would  make it more difficult to determine                                                                    
the   initial  aggressor;   therefore,  more   difficult  to                                                                    
prosecute  gang violence.  He noted  that the  testimony had                                                                    
come from Anne Carpeneti  [Assistant Attorney General, Legal                                                                    
Services  Section-Juneau, Criminal  Division, Department  of                                                                    
Law].  Mr.  Svobodny  replied that  "there  was  not  enough                                                                    
statistical information to answer  the question." He thought                                                                    
that most  of the  gang violence fell  into the  category of                                                                    
mutual combat, which disqualified a claim of self-defense.                                                                      
Representative Gara summarized current  law. He relayed that                                                                    
unless a person was at home,  work, or was a police officer,                                                                    
a person presented  with a situation to  retreat in complete                                                                    
and total  safety must  avoid lethal  force. The  bill added                                                                    
"anywhere a person had the legal  right to be." He asked how                                                                    
the legislation would  impact the law "when you  have a duty                                                                    
with complete  personal safety and  safety to others  to not                                                                    
Mr. Svobodny stated  that "the answer is  that doesn't exist                                                                    
anymore … the common law will have gone away."                                                                                  
Representative Gara asked why  the legislature should change                                                                    
the law if currently a  person could retreat in complete and                                                                    
total safety in  a public place and avoid the  use of lethal                                                                    
force. Mr.  Svobodny was unable  to answer the  question. He                                                                    
thought  the  question  was  best  answered  by  the  bill's                                                                    
Representative Gara  was trying to determine  the difference                                                                    
between  the current  law and  the legislation.  He wondered                                                                    
how the bill changed a  person's ability to use deadly force                                                                    
in self-defense in  a public place. He wondered  how the law                                                                    
was expanded with passage of  the bill. Mr. Svobodny deduced                                                                    
that if the bill passed  litigation would ensue to determine                                                                    
where a  person had a  legal right  to be. He  believed that                                                                    
the  amount of  time that  the duty  to retreat  issue would                                                                    
arise in court would be insignificant.                                                                                          
Representative Gara reiterated his  desire to understand the                                                                    
difference between the current law  and the legislation in a                                                                    
public place.                                                                                                                   
Mr.  Svobodny answered  that  "if a  person  can use  deadly                                                                    
force and  they did  not have  to use  deadly force  if they                                                                    
chose  to retreat  the difference  is the  person could  now                                                                    
stand their  ground and shoot  if you are using  a firearm…"                                                                    
He thought that the bill  also removed the ambiguity whether                                                                    
the person  had the right  to retreat in instances  when the                                                                    
person was protecting others.                                                                                                   
3:28:09 PM                                                                                                                    
Representative Gara  reiterated his question. He  asked if a                                                                    
person was in  a place where he/she was  legally allowed "is                                                                    
there  a circumstance  where under  current law  because you                                                                    
have  the  ability to  not  shoot  with complete  safety  to                                                                    
yourself or others that you  would be able to shoot somebody                                                                    
if the bill is passed." Mr. Svobodny answered, "yes."                                                                           
Representative Gara questioned  what the circumstances were.                                                                    
Mr. Svobodny discerned that the  concern was with situations                                                                    
when a person had the duty  to retreat under current law and                                                                    
a person  could choose not  retreat under HB  24 provisions.                                                                    
He thought that lawyers were  likely to make the distinction                                                                    
in court.                                                                                                                       
Representative  Holmes referenced  Mr. Svobodny's  testimony                                                                    
asserting that determining where a  person had a legal right                                                                    
to  be  would  generate  a great  deal  of  litigation.  She                                                                    
wondered how that would affect  the fiscal note. She pointed                                                                    
to the  department's zero fiscal  note. She noted  that past                                                                    
versions of the bill had a more costly fiscal note.                                                                             
Representative  Costello  referenced  Representative  Gara's                                                                    
testimony  that  in previous  years  the  department took  a                                                                    
position  against   the  bill.  She  discussed   that  after                                                                    
reviewing her notes  from the prior session that  DOL had no                                                                    
previous position  on the  bill. She  wanted to  clarify the                                                                    
Co-Chair Stoltze  commented that Michael  Geraghty, Attorney                                                                    
General,  Department of  Law, sent  a letter  to the  Senate                                                                    
that  countered Mr.  Fayette's  testimony.  He notified  the                                                                    
committee  that  the  letter would  be  distributed  to  the                                                                    
members.   He  believed   that  there   was  a   subjective,                                                                    
pejorative  connotation and  critique by  Mr. Fayette  about                                                                    
the department's position  on HB 24 and  those testifying on                                                                    
the department's behalf.                                                                                                        
3:35:32 PM                                                                                                                    
The meeting was adjourned at 3:35 p.m.                                                                                          

Document Name Date/Time Subjects
HB 24 Additional Statutes AS 11 81 340 & 350 3rd Party & Property.pdf HFIN 2/25/2013 1:30:00 PM
HB 24