04/03/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB200 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 227 | TELECONFERENCED | |
| + | SB 200 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 3, 2006
1:09 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 200(JUD) am
"An Act relating to defense of self, other persons, property, or
services."
- MOVED HCS CSSB 200(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 227
"An Act relating to the Alaska Small Loans Act; and providing
for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 200
SHORT TITLE: USE OF FORCE TO PROTECT SELF/HOME
SPONSOR(S): SENATOR(S) THERRIAULT
05/10/05 (S) READ THE FIRST TIME - REFERRALS
05/10/05 (S) JUD
01/19/06 (S) JUD AT 8:30 AM BUTROVICH 205
01/19/06 (S) Heard & Held
01/19/06 (S) MINUTE(JUD)
01/24/06 (S) JUD AT 8:30 AM BUTROVICH 205
01/24/06 (S) Heard & Held
01/24/06 (S) MINUTE(JUD)
02/02/06 (S) JUD AT 8:30 AM BUTROVICH 205
02/02/06 (S) Moved CSSB 200(JUD) Out of Committee
02/02/06 (S) MINUTE(JUD)
02/03/06 (S) JUD RPT CS 3DP 1NR NEW TITLE
02/03/06 (S) DP: SEEKINS, HUGGINS, THERRIAULT
02/03/06 (S) NR: FRENCH
03/27/06 (S) TRANSMITTED TO (H)
03/27/06 (S) VERSION: CSSB 200(JUD) AM
03/28/06 (H) READ THE FIRST TIME - REFERRALS
03/28/06 (H) JUD, FIN
04/03/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR GENE THERRIAULT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 200.
BRIAN JUDY, Senior State Liaison
National Rifle Association - Institute for Legislative Action
(NRA-ILA)
Sacramento, California
POSITION STATEMENT: Testified in support of SB 200.
DAVID STANCLIFF, Staff
to Senator Gene Therriault
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 200, responded to
questions on behalf of the sponsor, Senator Therriault.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 200.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:09:29 PM. Representatives
McGuire, Coghill, Wilson, Gruenberg, and Kott were present at
the call to order. Representatives Gara and Anderson arrived as
the meeting was in progress.
SB 200 - USE OF FORCE TO PROTECT SELF/HOME
[Contains brief mention of HB 314, companion bill to SB 200.]
1:09:46 PM
CHAIR McGUIRE announced that the only order of business would be
CS FOR SENATE BILL NO. 200(JUD) am, "An Act relating to defense
of self, other persons, property, or services."
CHAIR McGUIRE noted that the companion bill to SB 200 [HB 314]
had already been heard in committee.
1:10:08 PM
SENATOR GENE THERRIAULT, Alaska State Legislature, sponsor,
relayed that the latest version of SB 200 is [more specific]
with regard to where and when deadly force can be used; contains
a definition of carjacking; provides broader protection for
"emergency services personnel"; contains an Alaska-specific
definition of gangs; prohibits the use weapons by felons;
contains a definition of vehicle that complies with driving
under the influence (DUI) statutes; and prohibits the use of
deadly force in instances where a safe retreat is assured -
though there will be no duty to retreat from premises one owns
or leases, or resides or works at, or at which one is a guest or
agent of an owner, lessor, or resident, or to retreat if one is
a peace officer or is assisting a peace officer, or is
protecting a child or member of one's household.
SENATOR THERRIAULT noted that committee packets contain an
amendment designed to prohibit a perpetrator of domestic
violence (DV) from claiming that the use of deadly force was
justified because the victim was attempting to flee in a vehicle
with the children; that amendment [which later became
Amendment 4] was labeled 24-LS1025\IA.1, Mischel, 3/31/06, and
read:
Page 4, line 30, following "vehicle":
Insert "; this paragraph does not apply to a
person outside of a vehicle who is involved in a
dispute with a person inside of the vehicle who is a
household member of that person; in this paragraph,
"household member" has the meaning given in
AS 18.66.990"
1:16:32 PM
BRIAN JUDY, Senior State Liaison, National Rifle Association -
Institute for Legislative Action (NRA-ILA), said he would be
speaking in support of SB 200, which, he offered, came about
following the passage of similar legislation in Florida referred
to as castle doctrine legislation. He offered his belief that
the "castle doctrine" is common law and says that one's home is
one's castle and one has every right to protect it; in other
words, one has no duty to retreat from one's home. Existing
Alaska law already provides that there is no duty to retreat if
one is on premises that one resides in, and SB 200 proposed to
broaden that somewhat.
MR. JUDY encouraged the committee to go back to the language in
the original version of both HB 314 and SB 200; language which
said that there was no duty to retreat if one was anywhere one
was legally allowed to be; if a person is walking down the
street or through a park or parking lot and a rapist or
kidnapper tries to drag him/her away, the NRA-ILA believes that
the person ought to be able to stand his/her ground and meet
force with force without having to first determine whether a
safe retreat is possible. He referred to the provision that
prohibits criminals and their families from suing victims for
killing or injuring those who attacked them.
MR. JUDY opined that protecting the right of law abiding
citizens to carry firearms is not enough - when under attack
from a violent criminal, no person should have to fear civil
liability for defending himself/herself; victims, not criminals,
should have the protection of law. He said the NRA-ILA strongly
supports the civil immunity provision and the expansion of the
"no duty to retreat" language, but would urge the committee to
consider going even further in that regard, allowing one to
defend one's self regardless of where one is. He concluded by
urging the committee to support the bill.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 200.
REPRESENTATIVE GARA referred to the provision in SB 200 that
allows the use of deadly force to prevent a kidnapping [located
on page 3, line 14], and offered his belief that the crime of
custodial interference could be considered kidnapping. He said
he did not think that they should allow someone to claim that
the use of deadly force was justified in instances of custodial
interference. He suggested that this issue should be clarified
in the bill.
1:24:21 PM
DAVID STANCLIFF, Staff to Senator Gene Therriault, Alaska State
Legislature, sponsor, pointed out on behalf of Senator
Therriault that there could be possible exceptions; for example,
the person guilty of custodial interference could be endangering
a child's life.
REPRESENTATIVE GARA asked whether situations in which a child is
endangered would be covered by another provision of the bill.
1:26:20 PM
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), offered his belief that they would be. He explained that
the crime of custodial interference is not included in the crime
of kidnapping; although they are both found under the same
article of Title 11, they are treated as completely different
crimes. To alleviate concerns, however, the committee could
simply add the words, "under AS 11.41.300" to page 3, line 14,
after the word, "kidnapping" He said it would be hard to
imagine a circumstance involving custodial interference that
would give rise to the right to use deadly force for self
defense. In response to a question, he said that the language
on page 4, line 2, pertains to the duty to retreat rather than
to the ability to use self-defense.
REPRESENTATIVE GARA pointed out that the crime of custodial
interference in the first degree is a class C felony, and that a
provision of the statute pertaining to the crime of kidnapping -
AS 11.41.300(a)(1)(E) - says that a person commits the crime of
kidnapping if the person restrains another with intent to
facilitate the commission of a felony or flight after commission
of a felony.
MR. GUANELI opined that the crime of custodial interference -
which can only be committed by parents or relatives - cannot be
turned into the crime of kidnapping by virtue of simply saying
that the person intended to hold the child and flee the state.
He reiterated his suggestion to simply add the words, "under AS
11.41.300" to page 3, line 14, after the word, "kidnapping". In
response to a question, he explained that any criminal charge or
conviction must be based on the specific circumstances of the
case. If a parent hires someone to kidnap his/her child, then
the person hired would be guilty of kidnapping, but there is no
way to charge the parent with kidnapping in situations of
custodial interference because that charge simply doesn't apply.
REPRESENTATIVE GARA reiterated his prior comments.
CHAIR McGUIRE asked Representative Gara to construct an
amendment addressing his concern.
REPRESENTATIVE GARA suggested adding the words, ", but not
including conduct governed by AS 11.41.320" after the word,
"kidnapping" on page 3, line 14.
REPRESENTATIVE GRUENBERG opined that the difference between
Representative Gara's suggestion and Mr. Guaneli's suggestion is
merely a difference in drafting style, and suggested that they
speak to Legislative Legal and Research Services regarding this
issue.
1:34:38 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 1, to alter page 3, line 14, "to allow this kind of
self defense to be used for kidnapping except for what is
defined as custodial interference in the first degree in [AS]
11.41.320."
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
REPRESENTATIVE GARA, in response to a question, explained that
only the crime of custodial interference in the first degree is
a felony, and thus there is no need to include the crime of
custodial interference in the second degree in the proposed
exception.
REPRESENTATIVE GRUENBERG removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 1. There being none, Conceptual
Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG referred to proposed AS 09.65.330(a)(2)
- located on page 1, lines 10-11 - and noted that neither nurses
nor doctors are mentioned. He said he would like to have other
health care professionals who are engaged in emergency
activities included in this provision.
1:38:32 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Conceptual
Amendment 2, to add [to proposed AS 09.65.330(a)(2)], the words,
"health care provider in an emergency situation".
REPRESENTATIVE COGHILL objected for the purpose of discussion.
He said he would want this provision to only apply to first
responders, and thus is satisfied with the phrase, "in an
emergency situation".
REPRESENTATIVE WILSON, in response to a question, reminded
members that when they'd included the term, "health care
provider" in another bill, they'd defined the term so that it
pertained to that bill specifically.
REPRESENTATIVE GRUENBERG said he would like that term as it
would be used in SB 200 to be as broad as possible.
CHAIR McGUIRE surmised, then, that the concept is to provide
protection to health care providers who are first responders in
emergency situations.
MR. GUANELI pointed out that [AS 12.55.155(c)(13)] already
provides a sentencing aggravator for conduct directed at fire
fighters, emergency medical technicians, paramedics, ambulance
attendants, or other emergency responders during or because of
the exercise of official duties; therefore perhaps similar
language could be used in Conceptual Amendment 2.
CHAIR McGUIRE expressed favor with that idea, adding that she
would also like to include health care providers. In this
manner, those that may be traveling to emergency situations with
the paramedics - the doctors, the nurses - would have the
protection offered via proposed AS 09.65.330(a)(2). She
suggested that this ought to be the change that Conceptual
Amendment 2 makes - tracking the language in AS 12.55.155(c)(13)
and including health care providers as well.
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 2 as she proposed it. There being none,
Conceptual Amendment 2 was adopted.
REPRESENTATIVE GARA turned to the issue of carjacking, and said
he supports providing for the right to use force against a
carjacking. However, this could also include a carjacking that
doesn't involve any threat of serious physical injury to the
person. One ought to be able to use deadly force if one is
threatened during a carjacking, but not if there is no threat of
force, he opined; therefore, he would like to consider possibly
adding into the definition of carjacking on page 5, language
that would stipulate that the situation must involve serious
physical injury to the person or threat of serious physical
injury to the person. This way there would be a distinction
between a carjacking wherein one is not actually physically
threatened and a carjacking wherein one is so threatened.
REPRESENTATIVE COGHILL said it seems as though the act of
actually taking a vehicle already addresses that issue.
REPRESENTATIVE GRUENBERG surmised that Representative Gara is
suggesting that they alter proposed AS 11.81.350(g) such that
one would not get to use deadly force unless there is an actual
physical threat.
1:44:41 PM
MR. STANCLIFF mentioned that there was a fair amount of
discussion in the Senate on this issue and an amendment was
added in order to clarify that exact point, that if one is
determined to do whatever it takes to steal a car - including
removing someone from that car - that in itself rises to the
level wherein [the use of deadly force to prevent the
carjacking] would be justified.
REPRESENTATIVE GRUENBERG asked about situations in which the
carjacker says, "Give me your car, please get out." If a
carjacker uses the word please, he proffered, the driver would
know there was no overt threat - the carjacker is simply asking
the driver to remove himself/herself.
MR. STANCLIFF posited that under the full context of the bill,
one doesn't automatically get to use deadly force; the use of
deadly force would only be justified if that is what is
necessary. So if a carjacking situation escalates because the
driver says, "No" and refuses to get out of the car, and the
carjacker then pulls out a gun, there is still a responsibility
to only use force when faced with force - one cannot
automatically pull out a gun and start shooting when the
carjacker first asks one to get out of the vehicle.
MR. GUANELI offered his understanding that one of the purposes
of SB 200 is to expand "the area of self defense." A carjacking
is simply a robbery; if it is done with a gun, it is an armed
robbery, and if it is not done with a gun but with just the use
of force, it is an unarmed robbery. In a normal robbery one
would be permitted to use self-defense [only] if it is necessary
to protect one's self. Under [proposed AS 11.81.350] one would
be allowed to use deadly force not solely to protect one's self
but also to prevent the robbery - in other words, to protect
one's property. And this is somewhat an expansion of the whole
"stand your ground" principle, he remarked, because if one is
yanked out of a car and thrown to the ground, he/she may not be
in any further physical danger and yet this provision would
allow the use of deadly force to terminate the robbery.
MR. GUANELI characterized this as a policy question, whether to
expand the notion of self-defense to permit the use of deadly
force in such situations, adding that he thought that was indeed
one of the purposes of the bill. If the notion of [only using
deadly force to protect] one's self is added to this provision,
he opined, then they might as well delete the provision entirely
and rely on current law.
1:48:42 PM
REPRESENTATIVE GARA noted that in some robberies, one is not
injured or threatened with physical injury, and in some
robberies one is threatened with serious physical injury. He
said he is calling into question whether they should let a
person shoot someone else during a carjacking - or any other
form of robbery - if the person is not threatened with serious
physical injury.
MR. STANCLIFF mentioned that this policy question has brought on
a lot of debate. If a robber is coming into one's home, should
one assume that the robber means one no harm? A vehicle can be
taken and a person's life put in danger because of that theft,
and the bill is proposing to make the taking of a vehicle
similar to the entering of a home. Furthermore, the Senate
stipulated that the term, "vehicle" includes motor vehicles as
defined in AS 28.40.100, aircraft, and watercraft. To have
one's vehicle stolen in the middle of February out around Tok
could mean life or death. He proffered that the policy question
for members is, "How do you look at someone that comes up to a
vehicle, opens the door, and wants to throw you out on the
street, versus how do you look at a person coming through your
front door in the middle of the night; do we look at them
differently or not?" As currently written, the bill says [such
people] would not be viewed differently, that one has the right
to defend his/her vehicle with deadly force if one reasonably
believes that the use of deadly force is necessary.
1:51:34 PM
REPRESENTATIVE GARA argued, however, that as written, one could
use deadly force if he/she believes the use of such force is
necessary to stop the taking of the car; there is no requirement
that one be threatened with serious physical injury. He asked,
"Do we want to say you can shoot somebody if there's no danger
of serious physical injury when they're taking your car?"
REPRESENTATIVE COGHILL offered his understanding that the bill
is saying that there is a presumption that one has the right to
defend one's self and one's property. If this right is misused,
he/she will be held accountable. People are not being given the
right to go around shooting others but rather the right to
defend themselves. He opined that it is a mischaracterization
to say that people are being given the right to kill someone for
a carjacking; a person must have a reasonable belief that he/she
needs to protect himself/herself. He observed that this is
quite a bit different than what he was proposing via the bill he
introduced - HB 314 - because that bill gave one the right [to
use deadly force] to protect one's self regardless of where one
was. One of the problems with not doing it that way is that
then there is the need to specify every situation in which the
use of deadly force would be justified. Of SB 200, he said,
"We're saying you have the right, you have a presumption to the
right - misuse that right and it will cost you; ... but we're
saying to those who want to take you're car, your life, your
children, or misuse children, 'Beware, people will have the
right to protect [those things].'"
REPRESENTATIVE GRUENBERG relayed that while in Miami, he and his
wife had a briefcase taken out of their rental car while they
were in it after the perpetrators created a diversion and
slashed the car's tires. The similarity between that and a
carjacking is that it all happens very fast, the victim doesn't
have a lot of time to weigh the circumstances, and it is a very
dangerous situation; also, if one is removed from one's car, one
could get run over by another car. He said he would appreciate
it if proposed AS 11.81.350(g) was not altered in the fashion
proposed by Representative Gara.
1:56:07 PM
MR. STANCLIFF, in response to a question, referred to [what
later became known as Amendment 4 - text provided previously].
REPRESENTATIVE GRUENBERG turned the committee's attention to
language on page 2, lines 22-26, - proposed AS
11.81.330(a)(4)(C) - which read:
(C) acting alone or with others in revenge for,
retaliation for, or response to actual or perceived
conduct by a rival or perceived rival, or a member or
perceived member of a rival group, if the person using
deadly force, or the group on whose behalf the person
is acting, has a history or reputation for violence
among civilians; or
REPRESENTATIVE GRUENBERG said that although he supports the
concept behind this language pertaining to gang-related
activities, it seems to be very convoluted language. He asked
whether this language could be simplified while retaining the
meaning that if one is involved in a gang-related situation, one
doesn't have the right to use deadly force.
MR. STANCLIFF mentioned that the DOL has been wrestling with the
issue of gang-related violence and this is the best language it
could come up with to describe gang-related activity, adding
that this language has received a lot of scrutiny from various
law enforcement agencies.
REPRESENTATIVE GRUENBERG referred to the language, "if the
person using deadly force, or the group on whose behalf the
person is acting, has a history or reputation for violence among
civilians, and offered his understanding that the courts
generally frown upon the use of "reputation evidence." Trying a
person on the basis of reputation is difficult because a
person's reputation can vary depending on whose opinion is
sought. He said he is somewhat uncomfortable with the
aforementioned language because it could be difficult for a
court to apply it. Additionally, the language, "in revenge for,
retaliation for, or response to" could prove problematic as
well. Representative Gruenberg asked Mr. Guaneli to comment.
MR. GUANELI mentioned that the language in proposed AS
11.81.330(a)(4)(C) received a lot of scrutiny in the Senate
Judiciary Standing Committee as well as [by law enforcement
officials] in Anchorage. He went on to say:
When trying to expand the right of self defense, do we
run the risk of expanding it to the point where people
involved in illegal organizations, gangs, et cetera,
can also use that doctrine. And so, in trying to
avoid that, this [language] was crafted ... with the
idea being to try to describe the organizations [or
members of those organizations] that you don't want
... able ... to claim self defense.
REPRESENTATIVE GRUENBERG asked how "gang" is defined [elsewhere
in statute].
MR. GUANELI mentioned that AS 12.45.037 deals with "street
gangs," but said he is not sure that that statute has ever been
effectively applied in Alaska because the gangs in Alaska cannot
be neatly defined. The goal is to get at groups that in the
past have used violence - groups that have a history or a
reputation for violence among civilians. If the legislature is
going to make history or reputation for violence among civilians
an element of the aforementioned provision, then in deciding
whether a particular member of a particular group was justified
in using deadly force against a member of a rival group, the
court is going to allow in evidence of the defendant's history
or reputation for violence.
2:04:38 PM
REPRESENTATIVE GRUENBERG noted that AS 11.81.900(b)(13) defines
"criminal street gang" as:
(13) "criminal street gang" means a group of
three or more persons
(A) who have in common a name or identifying
sign, symbol, tattoo or other physical marking, style
of dress, or use of hand signs; and
(B) who, individually, jointly, or in
combination, have committed or attempted to commit,
within the preceding three years, for the benefit of,
at the direction of, or in association with the group,
two or more offenses under any of, or any combination
of, the following:
(i) AS 11.41;
(ii) AS 11.46; or
(iii) a felony offense.
REPRESENTATIVE GRUENBERG remarked that this definition seems
just as cumbersome as the language being proposed via AS
11.81.330(a)(4)(C). He suggested that future legislation ought
to address the issue of providing for a really good definition
of the term, "criminal street gang". That definition could then
be used in all the other statutes pertaining to gang-related
activities.
MR. GUANELI agreed that the current definition is almost
unusable.
2:06:30 PM
REPRESENTATIVE GARA referred to a proposed amendment he'd
written; that proposed amendment [which later became
Amendment 3] read [original punctuation provided]:
P 5 line 3
after "vehicle" add
and that involves physical injury to the person or an
occupant of the motor vehicle or the person reasonably
believes there is a threat of such physical injury
REPRESENTATIVE GARA asked whether he is correct in his
understanding that as currently written, the bill would allow a
person to shoot someone who's taking the car even if the person
has no reasonable belief that he/she might be injured.
MR. GUANELI referred to language in proposed AS 11.81.350(e)(1)
- page 4, lines 23-26 - which says:
(e) A person
(1) in a vehicle, or forcibly removed from a
vehicle, may use deadly force upon another when and to
the extent the person reasonably believes it is
necessary to terminate what the person reasonably
believes to be a carjacking of that vehicle;
MR. GUANELI concurred that this language does not require that
the person be in any particular danger of injury in order to
prevent the taking of the car via the use of deadly force, but
added that carjacking inherently involves a level of danger. He
referred to proposed AS 11.81.350(e)(2), and characterized it as
pertaining to vehicle theft situations in which the driver was
already outside of the car and someone else has been left in the
car; proposed AS 11.81.350(e)(2) read in part:
(e) A person ...
(2) outside of a vehicle may use deadly force
upon another when and to the extent the person
reasonably believes it is necessary to terminate what
the person reasonably believes to be the theft of that
vehicle when another person, other than the perceived
offender, is inside of the vehicle
MR. GUANELI mentioned that this provision doesn't require there
to be a specific threat of injury or danger to the [driver] of
the car, and that it is this provision that [Amendment 4]
proposes to alter.
2:09:09 PM
REPRESENTATIVE GARA, with regard to proposed AS 11.81.350(e)(1),
said he would like to provide that there must at least be a
threat of physical injury before one can use deadly force
against the carjacker. With regard to AS 11.81.350(e)(2), he
characterized that as essentially a kidnapping, and so he thinks
it reasonable to allow someone to use deadly force even if there
is no threat of physical injury.
REPRESENTATIVE WILSON suggested that the threat or possibility
of injury is inherent in any situation where someone refuses to
turn over a belonging and starts struggling with the
perpetrator.
REPRESENTATIVE GARA said that if a person is going to start
fighting with the carjacker, then he wants that person to be
able to use [deadly] force to protect himself/herself, but not
if there is no danger of harm.
REPRESENTATIVE WILSON surmised, "In other words, you have to
fight a little bit before you shoot him."
REPRESENTATIVE GARA countered, "They have to hurt you a little
bit."
REPRESENTATIVE COGHILL noted that AS 11.81.350(e)(1) includes
the phrase, "forcibly removed from a vehicle", and pointed out
that if a person is being pulled from a car, he/she won't know
what might happen next - won't know whether the carjacker poses
no threat.
MR. STANCLIFF relayed that member's packets include statistics
from other states illustrating that once potential perpetrators
find out that victims are allowed to use deadly force, crime
rates have dropped. He said that although some mistakes may be
made, the question is whether it is time to allow a person to
use deadly force to protect an investment worth $30,000,
$40,000, or even $50,000 - an investment that might contain kids
or a spouse. Mr. Stancliff remarked that Representative
Wilson's point is that under Representative Gara's suggested
change, if one just backs down and isn't threatened, one cannot
shoot a carjacker, whereas if one puts of a struggle, he/she can
shoot a carjacker. He opined that [this legislation] will make
a difference regarding the number of carjackings that occur.
MR. STANCLIFF, in response to a question, relayed that Florida
has the most conservative castle doctrine law and had broad
bipartisan support - crime levels in Florida, particularly those
related to carjacking or the type of offense that Representative
Gruenberg experienced, were astronomical in some areas - and
that law is making a difference. People [in Florida] are armed
and are protecting their property and, in many instances, it's
saving their lives or the lives of their loved ones, and that
fact has to be weighed against the possibility that perhaps
someone might use [deadly] force inappropriately. But under the
bill, such instances will be dealt with in court anyway; the
bill is not simply providing people with a license to shoot.
2:14:25 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 3 [text
provided previously.
REPRESENTATIVE COGHILL and CHAIR McGUIRE objected.
REPRESENTATIVE GARA explained that Amendment 3 would require
that before a person can use deadly force in a carjacking
situation, there must be some threat of physical injury. "If
somebody grabs you and throws you out of the car, that's
physical injury - you can defend yourself with a gun," he
remarked. However, in addition to addressing situations in
which one is forcibly removed from a car, the language [in
proposed AS 11.81.350(e)(1)] would also allow one to use deadly
force on someone who is simply taking the car. He said he
doesn't want there to be a circumstance where [a carjacker]
steals a car from someone without hurting him/her and then gets
shot while driving away.
REPRESENTATIVE COGHILL again pointed out that a person won't
know what will happen when a carjacker takes a car - the
carjacker could decide to run over the person - and so a person
should have the right to stand one's ground.
REPRESENTATIVE ANDERSON reminded members that last year, the
previous committee aide and her mother were victims of a
carjacking - the perpetrators physically dragged them from the
vehicle and drove off with both the committee aide's dog and
Chair McGuire's dog in the vehicle. Representative Anderson
asked Representative Gara whether he feels that in that
circumstance, the victims shouldn't have been able to use deadly
force.
REPRESENTATIVE GARA said that in that scenario the victims would
be able to use deadly force because the perpetrators used
substantial force in dragging the victims from the car. He
again said that he doesn't want someone to use deadly force on a
carjacker as he/she is driving away if the carjacker doesn't
hurt the victim.
REPRESENTATIVE ANDERSON acknowledged that point.
MR. GUANELI, in response to a question, explained that under
existing law, if someone comes into a person's home, robs it,
and then leaves, the person may not shoot the perpetrator as
he/she is leaving, because the use of deadly force is not
necessary for defense of self at that point.
2:20:47 PM
REPRESENTATIVE KOTT observed the similarities between that
scenario and the one involving a carjacker fleeing with a
vehicle.
MR. STANCLIFF offered his interpretation that the language in
[in proposed AS 11.81.350(e)(1)] is meant to address situations
in which either the person is forcibly removed from the vehicle
or the person is still in the vehicle when the carjacker drives
away.
REPRESENTATIVE KOTT offered his understanding that
Representative Gara was focusing on situations where the
carjacker is able to take the car away without using force but
is then shot while driving off, adding that he was simply trying
to draw an analogy between that scenario and one involving
someone getting shot while fleeing a house he/she has just
robbed.
MR. GUANELI remarked that in a carjacking situation, one would
ultimately be protecting property, and again characterized
carjacking as an inherently dangerous activity that almost
always puts the victim at risk. He agreed that in the former
committee aide's situation, under the bill, they would have been
allowed to draw a gun and start firing, adding that that doesn't
look a whole lot different than the example involving a robber
getting shot after leaving house. He suggested that the issue
of proximity to the perpetrators could make a difference - for
example, if the perpetrators are still right there in front of
the person after throwing him/her to the ground versus if they
are 200 yards down the road. At some point, the person would
not have the right to shoot, just as at some point a person
doesn't have the right to shoot someone who's just robbed
his/her home; at some point the danger is no longer eminent and
the necessity of using force dissipates. Furthermore, at some
point the carjacking stops, just as at some point the robbery of
a person's home stops; in the latter case, that point is usually
when the robber leaves the house.
MR. GUANELI pointed out, however, that a carjacking happens very
fast and it occurs in the victim's immediate vicinity, and
surmised that it is those circumstances the bill is attempting
to address rather than circumstances where the carjackers are
already 200 yards down the road.
REPRESENTATIVE COGHILL again remarked that a carjacking victim
faces the risk that he/she will be run over by the carjacker,
again reiterating his point that a victim won't know what a
carjacker intends after throwing the victim from the vehicle.
REPRESENTATIVE KOTT pointed out that before a carjacker can run
a victim over, he/she has to drive the car either backwards
forwards, and by that time the victim can have a gun out and be
firing at the carjacker. He said that if it were him and it
looked like he was in eminent danger of being run over, he would
be firing his gun at the carjacker.
2:26:08 PM
REPRESENTATIVE GRUENBERG opined that there are problems with the
current language in the bill. For example, currently under the
bill, because a carjacking is not over until it's over, one
could give chase and be firing at a carjacker for miles down the
road. He suggested that they alter the bill such that it
focuses on situations in which the carjacking is not complete
and the carjacker has not left the scene with the vehicle.
Seldom will a carjacking occur, he posited, without some risk
that other people are either present at the scene, could show up
at the scene, or be in the vicinity during any subsequent chase.
Therefore, if one is allowed to shoot at a carjacker, it ought
to only be when the victim is at very close range to the
carjacker, before the car leaves the scene, and not during any
ensuing chase.
REPRESENTATIVE ANDERSON acknowledged that point.
MR. STANCLIFF, in response to a question, relayed that this
topic was discussed when the bill was heard in the Senate.
Specifically, should someone be allowed to just spray bullets at
an attacker in a shopping mall. He stated that his
understanding is that Section 6 of the bill - proposed AS
11.81.350(e)-(g) - allows the use of deadly force in three
situations: a person is in the vehicle and is never taken out
of the vehicle during the carjacking; a person is forcibly
removed from the vehicle during the carjacking; or a person is
outside of the vehicle during the carjacking but someone else
who is not the perpetrator is in the vehicle. The first two
situations are addressed via proposed AS 11.81.350(e)(1), and
the third situation is addressed via proposed AS
11.81.350(e)(2).
CHAIR McGUIRE asked about situations wherein animals are in the
car.
MR. STANCLIFF remarked that animals could added to [proposed AS
11.81.350(e)(2)].
REPRESENTATIVE GRUENBERG opined that the language in proposed AS
11.81.350(e)(1) is too broad because it could be construed to
mean that one could shoot a carjacker from another vehicle while
giving chase, particularly given that one would always be in a
state of having been forcibly removed from a vehicle after such
has occurred.
REPRESENTATIVE GARA withdrew Amendment 3.
2:31:15 PM
REPRESENTATIVE COGHILL made a motion to adopt Amendment 4 [text
provided previously].
REPRESENTATIVE GRUENBERG objected [for the purpose of
discussion], and noted that Amendment 4 focuses on situations
involving disputes between household members but does not
stipulate who might be doing the shooting; under Amendment 4, in
a domestic violence situation involving the taking of a car
while others in the car, neither party would be justified in
using deadly force.
MR. STANCLIFF relayed that that point was raised by Senator
French.
REPRESENTATIVE GRUENBERG, characterizing that [proposed
provision] as a good idea, then removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 4. There being none, Amendment 4 was adopted.
2:33:46 PM
CHAIR McGUIRE made a motion to adopt Amendment 5, to add on page
4, line 30, the words, "or a pet" before the phrase, "is inside
of the vehicle". She characterized situations involving the
taking of a car while pets are inside as serious, particularly
given that for some people, their pets are like their children.
REPRESENTATIVE COGHILL and REPRESENTATIVE GRUENBERG objected.
CHAIR McGUIRE withdrew Amendment 5.
2:35:30 PM
REPRESENTATIVE GRUENBERG asked Mr. Stancliff whether the sponsor
would be amenable to altering proposed AS 11.81.350(e)(1) such
that the use of deadly force during a carjacking would only be
permitted at or about the time that the vehicle was taken. Such
a change could prevent high-speed car chases with people
shooting at each other.
MR. STANCLIFF offered his understanding that there would be no
problem with clarifying that there is some sort of zone- or
time-proximity in which the use of deadly would be allowed. One
shouldn't be allowed to fire shots down a busy street at a car
300 yards away.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 6, to alter proposed AS 11.81.350(e)(1) such that it
would apply to, "at or about the time the vehicle is taken".
CHAIR McGUIRE surmised that the idea behind Conceptual
Amendment 6 is that there will be point at which the ability to
use deadly force in a carjacking situation will end.
REPRESENTATIVE COGHILL opined that the current language already
seems to embody that concept, and that it would be indefensible
to follow a carjacker and shoot him/her just to recover
property.
2:38:15 PM
REPRESENTATIVE GRUENBERG pointed out that a carjacking is not
over until the car is back in the possession of the person from
whom it was taken, and the language currently in the bill says
that one can use deadly force to terminate a carjacking. His
concern is this could be interpreted by the courts to mean that
one would be justified in chasing down the vehicle and shooting
the carjacker in order to recover the vehicle - thereby
terminating the carjacking. Amendment 6 would clarify this
point for the courts.
REPRESENTATIVE COGHILL indicated that he is of the belief that
once the car has been taken, the carjacking is over.
REPRESENTATIVE GRUENBERG disagreed; it is still a carjacking as
long as the carjackers have the vehicle in their possession.
CHAIR McGUIRE said that in her view, once a car has been taken,
it is no longer a carjacking; instead the carjacker is merely
proceeding on with a piece of stolen property.
MR. GUANELI said he agrees with everybody: for purposes of
charging someone with a crime, Representative Coghill is correct
- once the car is taken from a person's control, the carjacker
can be charged with the crime of robbery; for purposes of using
deadly force, however, Representative Gruenberg has a point that
a reasonable person may interpret the language to mean that
he/she can "prevent" the carjacking by going and getting the
vehicle back. Mr. Guaneli remarked that as prosecutors, the DOL
would be inclined to apply the provision as Representative
Coghill would, and say that a person would not have the right to
go chasing after and shooting at a carjacker once the car has
been driven away; on the other hand, a judge might instruct a
jury regarding the law of self defense just as Representative
Gruenberg foresees.
REPRESENTATIVE GRUENBERG offered his understanding, however,
that under the rule of lenity, if there is any question, the
court must apply "it" to benefit the defendant, and the
defendant in these scenarios would be the person doing the
shooting.
REPRESENTATIVE COGHILL removed his objection to Conceptual
Amendment 6.
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 6. There being none, Conceptual
Amendment 6 was adopted.
2:42:07 PM
REPRESENTATIVE ANDERSON moved to report CSSB 200(FIN) am, as
amended, out of committee with individual recommendations and
the accompanying [zero] fiscal note.
REPRESENTATIVE GARA objected for the purpose of discussion. He
said to Mr. Stancliff that to the extent that the sponsor wishes
to work further on the bill, the problem with the carjacking
provision is that there doesn't have to be any threat to one's
personal safety and yet one can still shoot the carjacker.
Representative Gara relayed that he would be happy to work with
the sponsor on this issue.
MR. STANCLIFF agreed to relay that message to the sponsor.
REPRESENTATIVE GARA then removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
reporting CSSB 200(FIN) am, as amended, out of committee. There
being no objection, HCS CSSB 200(JUD) was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:43 p.m.
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