Legislature(2017 - 2018)GRUENBERG 120
03/14/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB355 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 75 | TELECONFERENCED | |
| + | HB 355 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 75-GUN VIOLENCE PROTECTIVE ORDERS
3:52:04 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 75, "An Act relating to gun violence protective
orders; relating to the crime of violating a protective order;
relating to a central registry for protective orders; relating
to the powers of district judges and magistrates; requiring
physicians, psychologists, psychological associates, social
workers, marital and family therapists, and licensed
professional counselors to report annually threats of gun
violence; and amending Rules 4 and 65, Alaska Rules of Civil
Procedure, and Rule 9, Alaska Rules of Administration."
CHAIR CLAMAN advised that his first set of questions relates to
constitutional questions and he invited Dario Borghesan,
Department of Law to answer questions related to the bill.
3:53:04 PM
CHAIR CLAMAN asked Mr. Borghesan to provide his perspective on
HB 75 as currently drafted, and whether it violates the Second
Amendment of the Constitution of the United States, and if so,
to describe those constitutional issues.
3:53:37 PM
DARIO BORGHESAN, Assistant Attorney General, Opinions, Appeals,
& Ethics Section, Civil Division (Anchorage), Department of Law,
answered that under Heller v. District of Columbia 554 U.S. 570
(2008), the United States Supreme Court ruled that the Second
Amendment protects an individual's right to possess a firearm.
The Supreme Court has not weighed in on the (indisc.) standard
for judging whether a firearm law is consistent with the Second
Amendment. He pointed out that without that guidance, the
federal circuit courts have mostly upheld the various types of
firearm restrictions, such as laws prohibiting convicted felons
and people with domestic violence convictions from possessing
firearms. He opined that there is no decision reviewing a law
exactly like HB 75, and of course, until the United States
Supreme Court weighs in again on Second Amendment standards, it
is unknown whether HB 75 is constitutional under the Second
Amendment.
CHAIR CLAMAN offered that similar laws have been passed, but
they are not identical to what is proposed in this legislation.
He pointed to the States of Indiana, Washington State, Oregon,
California, and Florida, which have passed a gun violence
protective order bill, and asked whether any of those gun
violence protective order components had been challenged on a
constitutional basis.
MR. BORGHESAN answered that the State of Indiana's gun violence
protective order law, which was the oldest, was challenged under
the Constitution of the State of Indiana equivalent to the
Second Amendment, and it was upheld. He opined that none of the
more recent laws passed in the states mentioned by Chair Claman,
have been challenged or at least have resulted in a judicial
decision.
3:55:37 PM
CHAIR CLAMAN surmised that the State of Indiana case has been
published and it could be reviewed while the committee continues
to review this bill.
MR. BORGHESAN responded that Chair Claman was correct.
CHAIR CLAMAN asked whether any portion of the State of Indiana
law was held on constitutional issues or was the entire statute
approved.
MR. BORGHESAN opined that the entire statute was upheld.
CHAIR CLAMAN asked Nancy Meade, Alaska Court System (ACS) to
explain the current statutory process and procedures regarding
domestic violence protective orders and how this proposal for
gun violence protective orders compares or contrasts with the
current process.
3:57:03 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, answered that
the gun violence protective order as envisioned by HB 75 is
clearly modeled and drafted similarly to the existing statutes
on both domestic violence protective orders, and the state's
other categories of stalking and sexual assault protective
orders. She commented that those are "lumped together" in the
statutes as there are two procedures for obtaining a protective
order. She explained that there are three available types of
protective orders for domestic violence, similar to HB 75. The
first protective order is an emergency order, and in HB 75 it is
found on page 4, beginning at line 26, [AS 18.65.820(b)], which
is modeled closely on the domestic violence language with some
important distinctions that she would point out. The emergency
protective orders are only good for 72-hours and they can only
be filed by a peace officer. In the domestic violence world,
this type of protective order is extremely rare as in some
years, there are five, or three, or one. The second protective
order is a short-term 20-day protective order, which is in the
domestic violence stalking sexual assault found in HB 75, page
4, lines 7-25 [AS 18.65.820(a), HB 75, she explained. A short-
term order is ex parte, meaning that a petitioner files the
order and the respondent is not present at the hearing and does
not participate in the hearing at all. For domestic violence,
if the court finds probable cause that a crime of domestic
violence had occurred and it was necessary to protect the
petitioner from more domestic violence, the court must find by a
preponderance of the evidence that the crime happened, and the
court can then issue that domestic violence protective order.
3:59:35 PM
MS. MEADE explained that the difference here for the gun
violence protective order is basically the burden of proof and
the finding. She referred to page 4, lines 11-14 [AS
18.65.820(a)], and advised that this language matters mostly to
the court when issuing an ex parte order. The court must find
by a preponderance of the evidence, the following: the
respondent poses a significant danger of injury to self or
others by possessing a firearm; that less restrictive
alternatives had been tried and were not effective; and the
petitioner certified in writing that the efforts, if any, had
been made to provide notice to the respondent. The key words
being, "if any," because in the domestic violence world there is
typically not great efforts to notify the respondent, which
leaves basically two findings that must be found by the court by
a preponderance of the evidence for these protective orders. To
contrast that with domestic violence, the findings for the
short-term order is probable cause and it is a higher burden for
the gun violence protective orders, she said. The third
protective order is the long-term order described on page 3 of
HB 75. In the domestic violence world, she explained, the long-
term protective order is for one-year, and the gun violence
protective orders would be in effect for six-months, she
explained. Thereafter, someone could file another petition
shortly before the protective order expired and seek to extend
the order, which sometimes happens in domestic violence
protective orders. Under HB 75, the finding that matters to the
court is on page 3, lines 22-24 [AS 18.65.815(b)], wherein she
advised, the court must find clear and convincing evidence that
the respondent is a danger to self or others by possessing a
firearm in order to issue the protective order. She pointed out
that the gun violence protective order standard is a bit higher
than the standard for long-term domestic violence protective
orders where there must be a preponderance of the evidence,
which is thought to be more than 50 percent assurance that the
crime of domestic violence had occurred.
4:02:05 PM
MS. MEADE explained that with domestic violence protective
orders and also sexual assault and stalking protective orders,
the petitioners almost invariably apply for both simultaneously.
The court immediately holds the short-term hearing, without the
respondent present, and may issue that 20-day order. The
respondent must have 10-days' notice of the hearing, and at
least 10-days later the court holds a long-term hearing. The
court may or may not issue that long-term protective order, she
related.
4:03:02 PM
REPRESENTATIVE LEDOUX commented that this legislation takes
property rights away from people, which must have some
constitutional implications. She asked whether this would
require counsel, and if so, there is probably a fiscal note from
"somebody who is going to show up with a fiscal note."
MS. MEADE responded that she did not know the answer to
Representative LeDoux's question.
MR. BORGHESAN answered that he would not be able to offer a
definitive answer, and he opined that it appears the
representation by counsel is not always required before a
deprivation of property. Except, he offered, due to the
intersection between the deprivation of property and the Second
Amendment rights, the Department of Law (DOL) "couldn't know
that for certain."
4:04:55 PM
REPRESENTATIVE LEDOUX stated that she would like an answer to
her question, or at least the best possible answer.
CHAIR CLAMAN asked whether Mr. Borghesan could offer more detail
on the question. He then noted that some years ago there was an
Alaska Supreme Court case that dealt with the question of the
right to counsel. One of the issues was whether a certain level
of fine alone was enough to trigger the right to counsel or
whether jail time had to be part of the potential punishment.
He opined that in that older case, and at that point in time, it
was determined that a certain level of fine was enough to
trigger a right to counsel. He noted that his memory may be
unclear.
4:05:56 PM
MS. MEADE added that no matter the opinion of whether counsel
was required in these cases, she said she could envision certain
circumstances in which a judge might say that that is a right.
It could be that the legislature wants to deal with this issue
here and determine whether it wants counsel to be appointed.
The problem being, that if no entity, such as the Office of
Public Advocacy, is charged in its statute to provide counsel
when a judge determines that counsel is due, there is the
question of who pays and who provides counsel. She suggested
that possibly the committee would want to clarify that issue.
4:06:42 PM
MR. BORGHESAN replied that the Department of Law (DOL) would be
happy to provide a more detailed analysis of Representative
LeDoux's question as to whether counsel would be required in a
gun violence protective order hearing, and he will provide that
written analysis at a later date. He added that he does know
whether there are some decisions of the Alaska Supreme Court
that specify the level of sanctions it takes to trigger the
right to counsel, and he will provide a written response, he
said.
4:07:25 PM
REPRESENTATIVE EASTMAN noted his interest in the cases where
there may not be a right to counsel, and he assumed in that
case, the discussion was about an individual who is pro se if
they don't have their own counsel. He asked Ms. Meade to
contrast the burden of proof to demonstrate someone's level of
competence to represent themselves in court in this type of
hearing versus their level of competence to own their own
firearms. Which one is more difficult to prove, he asked,
because it appears that if this action is successful and the
person is deemed not to be competent enough to own firearms, are
they competent enough to defend themselves legally.
MS. MEADE pointed out that protective order proceedings are
civil in nature and they are not criminal cases, thereby, the
criminal triggers for having court appointed counsel are not at
play here. For example, in domestic violence protective order
hearings, the respondent is not entitled to a court appointed
lawyer. In the vast majority of cases, in the long-term
hearing, no counsel is present for either party even though they
are allowed to hire counsel but almost never hire counsel. She
added that for the gun violence protective order, the judge is
not making a competency determination, competency is a different
set of issues the judge would review. Whereas, for the long-
term order here, the judge would want clear and convincing
evidence that the person is a danger to self or others by
possessing firearms. She said that she recognizes there may be
some interplay about mental stability or a mental state but, she
opined, there would be different facts at play there. For
example, in a competency proceeding, doctors and medical
professionals are involved and that would not necessarily be
true in these gun violence protective order proceedings.
4:10:06 PM
REPRESENTATIVE EASTMAN said "in these types of hearings" would
Ms. Meade say that competency hearings are most likely ...
CHAIR CLAMAN interjected that when Representative Eastman says,
"these types of hearings," Ms. Meade had offered three different
types of hearings and asked him to clarify the type of hearing
within which he was referring. A competency hearing is a very
different hearing than a domestic violence hearing or a gun
violence protective order hearing, he remarked.
REPRESENTATIVE EASTMAN clarified that the type of hearing is
where someone would potentially lose the right to possess their
firearms. He asked whether there is an expectation on Ms.
Meade's part that a significant number of competency hearings
would be involved in furthering this process or would competency
hearings probably not be a significant occurrence.
MS. MEADE reiterated that she would not anticipate competency
hearings because those hearings are for criminal cases to
determine whether a defendant is competent to defend themselves
without an attorney in a criminal action. She further
reiterated that under HB 75, where it is a civil action, there
would not be a determination as to whether the person was
capable of expressing themselves appropriately in order to
defend themselves and opined that these do not tie into
competency hearings.
4:11:41 PM
REPRESENTATIVE EASTMAN noted that in the event this protective
order is granted and someone is to turn in their firearms, but
they do not turn in their guns. At that point, he asked,
whether it might move into a criminal matter where a competency
hearing might be appropriate.
MS. MEADE replied that in the event the person does not obey
that court order, it could be that law enforcement initiates a
criminal complaint for violating the provisions of the
protective order, and this bill adds that violating one of these
protective orders is a crime as well. Therefore, law
enforcement could initiate a criminal action against the person
for failure to follow a protective order and that would be a
whole separate criminal action. Perhaps, in that case, there
could be competency issues or perhaps not because there are only
competency issues when the person wants to represent themselves
or there is a dispute regarding their competency.
4:12:58 PM
REPRESENTATIVE STUTES surmised that a person's gun ownership
could be at risk if they have a domestic violence order filed
against them.
MS. MEADE responded that Representative Stutes was not exactly
correct because she was only trying to compare the existing laws
on domestic violence to this brand-new gun violence protective
order. Another testifier had advised that if a person is
convicted of a crime of domestic violence, their gun ownership
rights come into play. She reiterated that these are not crimes
whatsoever, these are simply civil protective orders and a
district attorney is not involved. This is a citizen versus
citizen to get protective orders and they are not criminal.
This discussion is not about being convicted of a crime of
domestic violence and possible gun ownership issues that might
come into play. As to domestic violence protective orders, she
explained that under statute, if a woman, for example, says that
her brother committed a crime of domestic violence and therefore
she wants to be protected. In the civil arena, if a gun was
used or is alleged to have been used, or if the judge finds that
a gun was used during that crime of domestic violence, it could
be that the domestic violence protective order might read that
the person cannot have firearms. She pointed out that that is
not terribly common and it can only happen at the long-term
hearing phase and not the earlier phase. Ms. Meade related that
that information might be merely confusing and not as relevant
to these protective orders, which would be solely about
firearms.
4:15:05 PM
CHAIR CLAMAN, in response to Representative Reinbold, explained
that people from the Department of Law (DOL) are available to
discuss other matters, and Ms. Meade is available solely to
compare and contrast the domestic violence protective order with
the gun violence protective order.
REPRESENTATIVE REINBOLD said she has questions regarding
amending the Alaska Rules of Civil Procedure, Rules 4 and 65,
and the Alaska Rules of Administration, Rule 9, located in the
title of the bill.
MS. MEADE advised that those are indirect court rule amendments
and opined that they are not terribly consequential. She
pointed out that the bill indirectly amends Rule 9 because under
HB 75, no filing fee shall be charged to a petitioner who files
for a gun violence protective order. The Alaska Rule of Civil
Procedure 4 has to do with the service of process on
individuals. This bill reads that law enforcement shall serve
any order upon the respondent and therefore that is an indirect
amendment of that court rule and not terribly troubling, she
said.
REPRESENTATIVE REINBOLD asked about Alaska Rules of Procedure
65.
MS. MEADE advised that she had forgotten exactly how that rule
read, but it is an indirect rule amendment that usually is not
terribly troubling.
4:17:27 PM
REPRESENTATIVE REINBOLD referred to Sec. 3 [AS 18.65.530(a),
page 2, lines 16-17, which read as follows:
(a) Except as provided in (b) or (c) of this
section, a peace officer, with or without a warrant,
shall arrest a person ...
REPRESENTATIVE REINBOLD requested an example of why there is
probable cause.
MS. MEADE responded that this is a better question for DOL, but
an officer can arrest someone or ask for an arrest warrant if
they have probable cause to believe a crime had been committed,
or if they see a crime. There are exceptions, wherein if the
peace officer has probable cause to believe that domestic
violence has occurred, or the person violated a domestic
violence protective order, or a condition of release in certain
cases, they are allowed to arrest without a warrant. That, she
explained, is long existing language in the law wherein the
legislature's intent was that those cases ought to have more
immediate responses by law enforcement. She deferred to the DOL
on that question.
4:19:08 PM
REPRESENTATIVE REINBOLD referred to Sec. 6. AS 18.65.815(a),
[page 3, lines 12-14], which read as follows:
(a) An immediate family member or a peace officer
who reasonably believes that the respondent is a
danger to self or others ...
REPRESENTATIVE REINBOLD asked the definition of "reasonably
believes."
MS. MEADE answered that Sec. 6 is the meat of the bill and the
long-term protective order. She then referred to [Sec. 6. AS
18.65.820, page 4, beginning line 7] and said that the short-
term protective orders "so this is -- this is it." The person
who "reasonably believes" is not anything the court would
enforce or ensure because anyone can file anything and the court
can reject the filing. She referred to Sec. 6, page 3, line 13,
and opined that the legislature does not intend for people to
file for these protective orders frivolously or without basis.
This language shows the legislature's intent that only immediate
family members should request gun violence protective orders if
they reasonably believe this person is a danger, she explained.
4:20:54 PM
REPRESENTATIVE REINBOLD noted that the definition of family does
not include a girlfriend or boyfriend.
MS. MEADE replied that the bill defines "immediate family
member" which does not include a boyfriend or girlfriend.
4:21:13 PM
REPRESENTATIVE REINBOLD offered concern that there is a loophole
for abuse and asked how to ensure that "reasonably believes" is
not abused and protect a person when they may not be a danger to
self or others.
MS. MEADE responded that the court cannot protect people from
filing frivolous cases, someone might file for a protective
order without a reasonable belief other than for a noble
purpose, and this law does not stop that from taking place.
Although, she advised, it does provide for a hearing and the
hope is that the judge handling the case would sift through the
evidence, or whatever is presented at the hearing, or in the
petition, and make the proper decision based on the evidence.
She said she suspects that a good number of the protective
orders will be denied, but there are no repercussions for the
filer.
4:23:11 PM
REPRESENTATIVE KOPP referred to [Sec. 6. AS 18.65.815(b)] page
3, line 21-23, which read as follows:
(b) ... If the court finds by clear and
convincing evidence that the respondent is a danger to
self or other ...
REPRESENTATIVE KOPP, in response to Representative Reinbold's
question, asked Ms. Meade to define the "clear and convincing
evidence standard" and what the court would have to be convinced
of in order to meet that standard.
MS. MEADE answered that there is not a magic number for the
different standards of proof. Typically, a "preponderance of
evidence" is more likely than not, which means over 50 percent.
For criminal convictions, the jury is supposed to be convinced
"beyond a reasonable doubt." She commented that no one likes to
put a number of that and she did not know whether it was 90
percent sure or 99 percent sure, but beyond a reasonable doubt.
Somewhere in the middle, is "clear and convincing evidence,"
which is more than 51 percent and probably not 90 percent. The
judge must have more evidence than in a regular civil matter,
for example, and the judge then has to make the finding that the
person is a danger to self or others by possessing, owning,
purchasing, or receiving a firearm. She said that she imagines
it would be a very fact laden hearing with the petitioner
offering, for example, some of the threats they heard, some
steps the person took, and issues with alcohol that come into
play, because it would be a factual determination.
4:24:54 PM
REPRESENTATIVE KOPP asked Ms. Meade whether she would say that
that the "clear and convincing standard of evidence" means that
something is more substantially likely to be true than not.
MS. MEADE replied that that was a fair definition.
4:25:11 PM
CHAIR CLAMAN noted that the "clear and convincing evidence
standard" is defined in the Alaska Civil Pattern Jury
Instructions.
MS. MEADE responded that she was unaware of that fact.
CHAIR CLAMAN offered that if he was correct, his office would
make a copy and distribute it to the committee before its next
hearing.
4:25:31 PM
REPRESENTATIVE KOPP referred to [Sec. 6. AS 18.65.825(a)(1)]
page 5, lines 16-17, which read as follows:
(a)(1) ... if the court finds that the
request is meritless on its face, the court may deny
the request without a hearing ...
REPRESENTATIVE KOPP asked Ms. Meade to discuss the court's
ability to make determinations on the possible frivolous
complaints that were mentioned earlier.
MS. MEADE answered that this provision comes into place with
modifications of an existing protective order. In that regard,
she explained, if a protective order has been issued by the
court involving the short-term and long-term protective order, a
request can be made for modification. Most often, she related,
the request for modification will come from the respondent
asking to, at least, let them have a gun because they are a
security guard, or it was affecting their employment, or they
are in the military, or for some other reason. This provision
reads that a court would have to hold a hearing on that
modification request within 20-days after the respondent or
petitioner requested the modification. Except, she said, if the
court finds that the request to modify the existing order is
meritless, the court does not have to hold a hearing.
4:27:03 PM
REPRESENTATIVE KOPP asked that if a protective order is not
under modification and a request is made by a peace officer or a
family member, could the court still find that the request is
meritless on its face and not proceed forward if the standard of
proof under HB 75 is not met.
MS. MEADE responded that when a petition is filed, the court can
deny the petition, which often happens with domestic violence
protective orders.
4:27:37 PM
CHAIR CLAMAN asked whether Ms. Meade had statistics on domestic
violence protective orders and the number of times in which they
are granted, and not granted.
MS. MEADE responded that she does have the statistics, except
they are not in a format to submit to the committee, and she
could briefly explain the statistics. Ms. Meade reiterated that
the short-term hearing is held immediately and in many cases in
Anchorage it is within one-half an hour, or within hours in
other locations. The rate in which the court does indeed issue
that domestic violence protective order is between 50-60
percent, some locations happen to have a higher rate of
granting. Generally, she offered, that one-half of the domestic
violence protective orders are granted. With respect to the
long-term order, the grant rate is approximately 20-23 percent.
The reason being that for "a huge number of times" the
petitioner does not show up because the parties have reconciled
or decided not to request a further protective order.
CHAIR CLAMAN surmised that the lower rate includes when people
come to court for a contested hearing and it is rejected, but
also in cases in which someone filled out the form, checked both
boxes, and did not show up for the long-term protective order
hearing.
MS. MEADE agreed, and she said that the 20-23 percent is the
grant rate, and other things can take place including dismissal,
drop, or denial.
4:29:22 PM
REPRESENTATIVE EASTMAN asked that in a domestic violence
protective order situation, what happens with the burden of
proof if a petitioner filed a gun violence protective order
against a respondent and they did not appear at the hearing, is
the clear and convincing evidence simply whatever the petitioner
had offered. In the event the respondent did not have the
ability to take time off from work and believed the protective
order to be frivolous, would the respondent have to appear at
the hearing in order to maintain his right to own firearms, or
would the judge simply look at the evidence.
MS. MEADE reiterated that there are two different burdens of
proof, it is the preponderance of the evidence for the short-
term order, and clear and convincing evidence for the long-term
order. As to the short-term order, the respondent is usually
not present and, in all likelihood, there would be little to no
evidence to controvert what the petitioner had stated in their
petition under oath, and they are sworn in when they testify,
she explained. As to the long-term hearing, the court has to
find by clear and convincing evidence, and it would behoove the
respondent to attend the hearing because it is a factual
determination. In the event only one side offers evidence, it
would be easier for the judge not to find any counter evidence
because the respondent was not there to present that evidence.
She reiterated that it is a factual determination based on what
is presented to the court.
4:31:56 PM
REPRESENTATIVE LEDOUX asked whether Ms. Meade had ever found
that with domestic violence protective orders, it is simply a
rush to the courthouse for whichever warring party arrives
first.
MS. MEADE answered that there are stories in that regard,
wherein a number of domestic violence protective orders can be
abused by some couples and some individuals. Possibly, she
commented, that is why there is an approximate 50 percent grant
rate, and the court deals with those situations as they arise.
4:32:32 PM
REPRESENTATIVE LEDOUX asked how often the court ends up
adjudicating two people who both filed for protective orders.
MS. MEADE replied that it does happen and she does not have data
on the frequency, but from conversations, she knows that
sometimes there are more or less simultaneously filed petitions.
She opined that the statute reads something about dealing with
them one at a time, there cannot be dueling petitions in the
same proceeding.
4:33:15 PM
REPRESENTATIVE LEDOUX surmised that a court could conceivably
deal with the first petition that was filed five-minutes earlier
on an ex parte basis and the person who filed a petition five-
minutes later "wouldn't get to be there for the first one?"
MS. MEADE responded that she does not know the answer to that
question. In the event the person was standing outside of the
courtroom door waiting for their hearing on their own petition,
she was unsure how the judicial officer would handle that
situation. She offered that the statute she had referred to
simply read that the court may not grant protective orders
against the petitioner and the respondent in the same action.
She opined that she unsure whether a judge would tell the
parties to come into the courtroom and talk it out and the judge
would then determine who deserved the protective order.
4:34:25 PM
REPRESENTATIVE REINBOLD offered a scenario where a protective
order takes place under HB 75, wherein a man had a Super Bowl
party, had been drinking, his team lost, and he was grumpy and
angry. At that time, someone believed the person was possibly a
danger to self or others, so the protective order was granted,
and law enforcement confiscated all of the guns in the house.
The home is now a gun-free zone, the person is robbed that night
and there was no way for that family to defend themselves. She
asked Ms. Meade to explain whether there is any liability
because "the speech on Saturday night, I heard 98 percent of
homicides were in gun-free zones."
CHAIR CLAMAN interjected that the topic of whether or not one of
these protective orders creates a gun-free zone is actually not
how the bill read, and that is a question to be addressed by the
DOL. Ms. Meade could answer questions about the circumstances,
but as to the gun-free zone topic, he was unsure that this bill
creates the gun-free zone Representative Reinbold had described.
REPRESENTATIVE REINBOLD asked what the liability to the state is
if the legislature creates a gun-free zone.
MS. MEADE referred to HB 75 [Sec. 18.65.830] page 5, lines 27-31
through page 6, line 1, and responded that if the protective
order is issued, the person must turn in their guns within 24-
hours, which is a bit different from someone seizing the
person's guns.
4:36:40 PM
REPRESENTATIVE REINBOLD said that "it says without notice
they're going to take them."
MS. MEADE commented that in any event, the person must surrender
their guns within 24-hours. As to Representative Reinbold's
question regarding liability, typically judges have judicial
immunity if they act within the scope of their duties in a
manner that is not blatantly unreasonable, judges are protected
from individual liability. As to whether someone could sue the
state, she said she did not feel qualified to answer that
question.
REPRESENTATIVE REINBOLD added that "Let's just say they went
walking outside, they don't have guns to protect themselves,
they got attacked by a bear." She said her point was the right
to defend themselves.
CHAIR CLAMAN pointed out that Representative Reinbold's question
was more about the constitutional right discussion that took
place with the attorney general and this line of questioning is
beyond the scope of what the court system is here to address.
MS. MEADE answered that she does not have an opinion on the
constitutionality, or the risks, or the liability involved in
Representative Reinbold's scenario. She commented that the
court system is neutral on HB 75.
4:38:13 PM
REPRESENTATIVE EASTMAN surmised that if someone living in rural
Alaska was to receive this protective order against them and
their firearms were confiscated, and they were eaten by a bear
or a wolf, the state would incur no liability.
MS. MEADE deferred to the Department of Law (DOL).
CHAIR CLAMAN noted that Representative Eastman was well beyond
the areas within which the committee had requested comments from
the court system.
4:39:20 PM
REPRESENTATIVE LEDOUX asked whether anyone would be testifying
to explain how the bill may work in practice. She said she was
trying to determine whether, when someone receives this
protective order, they specify by serial number how many guns
are in the house, the type, or the make, because it appears that
all the person has to do is come back and say that "he's gotten
rid of all of the guns."
CHAIR CLAMAN noted that depending on what is accomplished today,
the committee could continue these discussions on Friday because
these questions may be better directed to law enforcement or
organizations involved with domestic violence issues.
CHAIR CLAMAN asked Stacie Kraly to respond to how a gun violence
protective order relates to a civil commitment motion under
Title 47. He noted that he is particularly interested in the
following: who decides whether a person meets the legal standard
for civil commitment; what is the role of
psychiatrists/psychologists and others in the civil commitment;
and whether that plays a part in the gun violence protective
orders under HB 75.
4:41:26 PM
STACIE KRALY, Chief Assistant Attorney General, Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law, opined that there is not a parallel
as to this particular statute in the sense that they do not
interact with each other. She explained that a civil commitment
can only be granted in the State of Alaska when a person is
suffering from a diagnosable mental illness, through the
Diagnostic and Statistical Manuel of Mental Disorders (DSM), and
it has been alleged that they are a threat to self or others, or
that they are gravely disabled, both of which are defined under
Title 47.30. In the context of a civil commitment, there is a
two-pronged approach not unlike the protective order issue.
There is the ex parte phase where an individual suffering from a
mental illness meets the criteria of threat to self or others or
is gravely disabled. She explained that any individual in the
State of Alaska can contact the judicial officer on-call at the
courthouse and present evidence to that officer as to whether or
not an ex parte order should be granted, and most generally the
contact to the court is by a community mental health provider.
The ex parte order is a time-limited order for 72-hours which
allows an individual to be held at a designated treatment or
evaluation facility, such as Alaska Psychiatric Institute (API)
in Anchorage or Bartlett Regional Hospital in Juneau. The
person, she related, is held up to 72-hours and the 72-hours
does not include weekends or holidays by statute. In the event,
during those 72-hours, the person stabilizes to the point that
they are no longer gravely disabled or a threat to self or
others, or it is determined that the person is not suffering
from a mental illness, by law the person is required to be
released from the hospital.
4:43:30 PM
MS. KRALY explained that during those 72-hours, the person is
evaluated every 24-hours by the community mental health system
and evaluated by the psychiatrist or the mental health
professionals in which the person was admitted. During those
24-hours, if at any point the person fails to meet the
commitment criteria, the person must be released by statute. In
the event, during those 72-hours, it is determined that a person
is not stabilizing and the person meets the commitment criteria,
a 30-day petition can be filed. She explained that the 30-day
petition must be signed by two mental health professionals as
defined in statute, one of whom must be a psychiatrist. The
court is then petitioned by stating that the person is mentally
ill, is at risk of hurting self or others, and/or is gravely
disabled. That petition then leads to an evidentiary hearing
before a superior court judge or a magistrate judge, depending
on the person's location, the person is appointed counsel and a
robust evidentiary hearing ensues. The standard for commitment
at that point is clear and convincing evidence, which is a
higher level of evidence that the commitment criteria was met.
In the event the commitment criteria was met, the person would
be committed for up to 30-days. She said that at any point
during the 30-days the person stabilizes and no longer meets
that criteria wherein the person is no longer gravely disabled
and is no longer a threat to self or others, the person must be
released from the hospital. As time progresses and the person
does not stabilize, a petition can be filed, before the 30-days
is up, for a 90-day commitment which is the exact same standard,
although, the person is entitled to a jury trial at that point.
At the end of the 90-days, a petition can be filed for a 180-day
commitment subject to judicial review and jury trial. The
person has received appointed counsel during the process of the
30-day commitment and forward, she explained.
4:45:54 PM
CHAIR CLAMAN asked Ms. Kraly to compare the difference between
Title 47 civil commitment, and competency evaluations under
Title 12.
MS. KRALY responded that the Title 12 competency evaluation
process is found under AS 12.47.100, which Ms. Kraly paraphrased
as follows:
A defendant in a criminal proceeding who as a result
of mental disease or defect is incompetent because the
defendant is unable to understand the proceedings
against the defendant or to assist in the defendant's
own defense may not be tried, convicted, or sentenced
for the commission of a crime so long as the
incompetency exists.
MS. KRALY added that within that context, the issue can be
raised that the person is incompetent to stand trial on their
behalf or through appointed counsel, or the court can say that
it sees some red flags and it wants the person evaluated. In
the event that happens, the individual is evaluated to determine
whether they are competent to stand trial. It does not tie
into, in any way, shape, or form, a Title 47 determination until
it is determined, by a medical evaluation, that the person is
incompetent to stand trial because they do not understand what
is going on and they cannot assist in their own defense. The
statute contemplates that the person is sent to API for a period
of time in order to restore their competency, and if competency
is restored, the person can be charged with the crime and go
through the criminal proceedings. In the event competency is
not restored and it is determined, after a period of evaluation
and attempts to restore competency, that competency cannot be
met, the individual is either released from API or there is a
provision that could then, by statute, trigger a Title 47
evaluation. The statute does indicate that if a person is
determined not to be competent and they cannot be restored, that
it is a per se finding that the person suffers from a mental
illness and they meet the initial standards for a civil
commitment. Which, at that time, then triggers all of the
processes she previously identified in terms of the court
appointment, the evidentiary hearing, and the person must still
establish all of the other predicates for a civil commitment,
she said.
4:48:21 PM
REPRESENTATIVE LEDOUX asked whether all civil commitments
require a diagnosis of mental illness.
MS. KRALY responded that the standard is that a person must be
suffering from a mental illness, be a threat to self or others,
or gravely disabled.
4:48:44 PM
REPRESENTATIVE LEDOUX offered a scenario of someone walking out
on a high bridge and threatening to jump off of the bridge but
is saved by law enforcement by grabbing the person. There must
be some period of time in which they are committed without a
diagnosis of mental illness because it is presumed a
psychiatrist is not standing there with the police, she related.
MS. KRALY agreed that Representative LeDoux was correct, and she
explained that during the 72-hour ex parte phase, there is still
a predicate that the petitioner has probable cause to believe a
person is suffering from a mental illness. It may have been an
acute depressive episode and the person had not been diagnosed
as a schizophrenic for the last 15-years of their life. In that
context, she explained, the premise is that the petitioner
advises the court that it is their belief that this person
suffers from a mental illness and they are a threat to
themselves because they were threatening to commit suicide. At
that point, she noted, an ex parte order is granted and within
that provision, there is a 72-hour period not including weekends
and holidays, to evaluate whether there truly is a significant
mental illness and that the person is still a threat to self or
others. She pointed out that there is that initial 72-hour
phase wherein the person can be evaluated by a psychiatrist to
determine whether the person needs to be further hospitalized.
4:50:45 PM
REPRESENTATIVE LEDOUX asked what happens if the psychiatrist
determines that a person is a threat to self or others, but they
are not mentally ill.
MS. KRALY responded that that situation does happen as not all
civil commitments and petitions for commitment are granted.
Sometimes, she explained, they are granted despite the fact that
a person may have a diagnosis of a mental illness but are
determined to not be gravely disabled. The judge can evaluate
and determine that the person is not suffering from a mental
illness and thus, there is no basis within which to commit a
person under this statute, she said.
4:51:29 PM
REPRESENTATIVE LEDOUX asked whether a finding could be made that
someone posed a threat to self but they are not actually
mentally ill.
MS. KRALY replied that she believes a finding could be made, and
the person is released.
4:51:56 PM
REPRESENTATIVE REINBOLD related that if weekends and holidays
are not included, these people could be civilly committed for 5-
6 days.
MS. KRALY responded that Representative Reinbold was correct in
that the individual could be in the hospital for up to five
days, but a civil commitment finding, a 30-day petition, has
significant collateral consequences to an individual.
Therefore, she explained, the idea is to avoid individuals from
being civilly committed and to provide individuals with the
opportunity to recognize the issues in their lives and make
their own voluntary decisions about treatment and commitment.
For example, she said, in the event the full 72-hours were not
given to a person, or a person comes in on Friday and the
hearing is on Monday, the person is not given the opportunity to
stabilize to the point that they avoid these collateral
consequences of a civil commitment, which could have long-term
impacts on their employment and so forth.
4:53:33 PM
REPRESENTATIVE REINBOLD pointed out that she has known people
who were "put into "McLoughlin" and they cut off from their
families which triggered distress, anxiety, sleep disorders, and
so forth. She asked how to define the standards of mentally
ill.
MS. KRALY responded that mental illness is defined through the
Diagnostic Manual (DSM) 5th version, which is a compendium of
diagnoses that have been evaluated and peer reviewed by a myriad
of mental health professionals, psychiatrists, doctors,
clinicians, and so forth, who have identified what constitutes a
mental illness.
4:55:24 PM
REPRESENTATIVE REINBOLD offered that "some research shows 80
percent of diagnoses are wrong," and some of the acceptable
behaviors today were considered mentally ill 50-years ago. She
asked whether "there is going to be a standard or is it a moving
target" where there are options to change the definition by the
government.
MS. KRALY answered that the standard for mental illness is the
standard that applies to civil commitments under AS 47.30. She
opined that she does not believe HB 75 contains a requirement
that the person be identified as mentally ill. This is not a
mental illness standard, it is a threat to self or others
standard, so mental illness does not play into whether this gun
violence protective order can be granted.
4:56:45 PM
REPRESENTATIVE EASTMAN offered a scenario where a protective
order was granted incorrectly and the person should not have
been issued the order in the first place, or the person fixed
whatever was wrong and the protective order was no longer
necessary. He asked how hard it is for the person to have the
protective order quashed.
CHAIR CLAMAN pointed out to Representative Eastman that as to a
gun violence protective order or a domestic violence protective
order, Ms. Kraly does not have expertise on that subject.
4:57:19 PM
REPRESENTATIVE LEDOUX commented that she is more interested in
the definition of mental illness and would speak with Ms. Kraly
after the close of this hearing.
[HB 75 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB355 ver J 3.14.18.PDF |
HJUD 3/14/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM HJUD 3/26/2018 1:00:00 PM HJUD 4/2/2018 1:00:00 PM HJUD 4/2/2018 7:00:00 PM |
HB 355 |
| HB355 Sponsor Statement 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/26/2018 1:00:00 PM HJUD 4/2/2018 1:00:00 PM HJUD 4/2/2018 7:00:00 PM |
HB 355 |
| HB355 Sectional Analysis ver J 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB355 Explanation of Changes ver D to J 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB355 Supporting Document-Expanded One Pager 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB355 Supporting Document-Alaska Fire Chiefs Support Letter 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB355 Fiscal Note LAW-CRIM 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB355 Fiscal Note DNR-FSP 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |
| HB075 ver D 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Sectional Analysis 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Sponsor Statement 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Five States Allow Gun Seizures 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Missouri Case 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-The Trace Article - ERPOs Reduce Suicides 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letter 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fact Sheet 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DHSS-EPI 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note LAW-CRIM 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-CJISP 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-DET 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note JUD-ACS 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 1) 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 3) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-NYT Opinion - Mental Health System Can't Stop Mass Shooters 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 2) 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB355 Supporting Document-Alaska Fire Chiefs Letter 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM |
HB 355 |