Legislature(2017 - 2018)GRUENBERG 120
03/19/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB355 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 355 | TELECONFERENCED | |
| += | HB 75 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 19, 2018
2:04 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Jonathan Kreiss-Tomkins, Vice Chair
Representative Louise Stutes
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Charisse Millett (alternate)
Representative Tiffany Zulkosky (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 355
"An Act relating to the crime of criminally negligent burning;
relating to protection of and fire management on forested land;
relating to prohibited acts and penalties for prohibited acts on
forested land; and providing for an effective date."
- HEARD & HELD
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."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 355
SHORT TITLE: FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
SPONSOR(s): REPRESENTATIVE(s) GUTTENBERG
02/16/18 (H) READ THE FIRST TIME - REFERRALS
02/16/18 (H) RES, JUD
02/28/18 (H) RES AT 1:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
02/28/18 (H) RES AT 6:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
03/05/18 (H) RES AT 1:00 PM BARNES 124
03/05/18 (H) Heard & Held
03/05/18 (H) MINUTE(RES)
03/09/18 (H) RES AT 1:00 PM BARNES 124
03/09/18 (H) Moved CSHB 355(RES) Out of Committee
03/09/18 (H) MINUTE(RES)
03/12/18 (H) RES RPT CS(RES) NT 4DP 3NR 1AM
03/12/18 (H) DP: LINCOLN, DRUMMOND, JOSEPHSON, TARR
03/12/18 (H) NR: BIRCH, PARISH, TALERICO
03/12/18 (H) AM: RAUSCHER
03/14/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/14/18 (H) Heard & Held
03/14/18 (H) MINUTE(JUD)
03/19/18 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
ALLIANA SALANGUIT, Staff
Representative David Guttenburg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 355, answered
questions on behalf of Representative Guttenburg, prime sponsor.
AARON PETERSON, Assistant Attorney General
Fish & Game Section
Office of Special Prosecutions
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 355, answered
questions.
CHRIS MAISCH, State Forester/Director
Division of Forestry
Department of Natural Resources
Fairbanks, Alaska
POSITION STATEMENT: During the hearing of HB 355, answered
questions.
ANNE NELSON, Senior Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 355, answered
questions.
ACTION NARRATIVE
2:04:05 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 2:04 p.m. Representatives Claman, Kopp,
LeDoux, Kreiss-Tomkins, and Eastman were present at the call to
order. Representatives Stutes, and Reinbold arrived as the
meeting was in progress.
HB 355-FIRE;FOREST LAND; CRIMES;FIRE PREVENTION
2:04:46 PM
CHAIR CLAMAN announced that the only order of business would be
HB 355 CS FOR HOUSE BILL NO. 355(RES), "An Act relating to the
crime of criminally negligent burning; relating to protection of
and fire management on forested land; relating to prohibited
acts and penalties for prohibited acts on forested land;
requiring the Alaska Supreme Court to establish a bail schedule;
and providing for an effective date."
CHAIR CLAMAN advised that this is the second hearing on HB 355
in the House Judiciary Standing Committee, during the first
hearing the committee members reviewed the bill and opened and
closed public testimony. He reminded the committee that
Legislative Legal and Research Services has permission to make
any technical and conforming changes to the bill, and Chair
Claman then reiterated the amendment process.
2:05:46 PM
REPRESENTATIVE KOPP moved to adopt Amendment 1, labeled 30-
LS1382\J.1, Radford, 3/15/18, which read as follows:
Page 2, line 14, following "suspected":
Insert "wildland"
REPRESENTATIVE KREISS-TOMKINS objected.
2:05:55 PM
REPRESENTATIVE KOPP explained that Amendment 1 addresses a
concern voiced during public testimony, and he referred to HB
355, Sec. 3, page 2, lines 13-17, which read as follows:
an officer or employee of the United States or the
state may, when responding to a wildland fire or
suspected fire or administering the provisions of this
chapter, [AT ANY TIME] enter upon any land, whether
publicly or privately owned, for the purpose of
preventing, investigating, suppressing, or controlling
a wildland fire or a destructive agent.
REPRESENTATIVE KOPP noted that the testifier offered concern
regarding an officer entering private land with the idea that
they could be responding to more than just a wildland fire,
which appeared to be the overall purpose. The language here is
"or suspected fire," and whether that would include a campfire
or any other small controlled fire. In the event the goal is to
emphasis the danger of wildland fires and wildland enforcement,
Amendment 1 would provide clarity that this section is referring
to wildland fires for the purposes of fire prevention, control,
and suppression as to why a [fire protection officer] would
enter private property. He explained that it is with respect to
wildland fire investigation and control, and not to any other
range of legitimate fires a property owner could undertake on
their property. He opined that Amendment 1 addresses some
constitutional concerns and provides more protections for
landowners.
CHAIR CLAMAN asked Ms. Salanguit, staff to Representative
Guttenberg, whether the sponsor supports or opposes Amendment 1.
2:08:04 PM
ALLIANA SALANGUIT, Staff, Representative David Guttenberg,
Alaska State Legislature, responded that she believes
Representative Guttenberg is in support of Amendment 1.
2:08:15 PM
REPRESENTATIVE KREISS-TOMKINS withdrew his objection. There
being no objection, Amendment 1 was adopted.
2:08:32 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 2, labeled 30-
LS1382\J.2, Radford, 3/16/18, which read as follows:
Page 6, following line 16:
Insert a new bill section to read:
"* Sec. 21. AS 41.15.950 is amended by adding a new
subsection to read:
(c) Nothing in this section requires a person to
disclose a deadly weapon under AS 11.61.220(a)(1)(A)
to a peace officer described under (a)(1) of this
section."
Renumber the following bill sections accordingly.
Page 7, line 2:
Delete "sec. 21"
Insert "sec. 22"
Page 7, line 3:
Delete "sec. 21" in both places
Insert "sec. 22" in both places
Page 7, line 4:
Delete "Sections 23 and 24"
Insert "Sections 24 and 25"
Page 7, line 5:
Delete "sec. 25"
Insert "sec. 26"
REPRESENTATIVE KREISS-TOMKINS objected.
2:08:35 PM
REPRESENTATIVE EASTMAN explained that Amendment 2 makes clear
that that provision of law will not be applied to [fire
prevention officers], and there should be no confusion going
forward over whether an individual is required to disclose their
concealed weapon. Although, he noted, under this bill those
[fire protection officers] do have the title of "peace officer,"
and Amendment 2 deals with the types of peace officers
separately.
CHAIR CLAMAN asked Ms. Salanguit whether Representative
Guttenburg was in support of Amendment 2, or would she prefer to
hear from the Department of Law (DOL) as to the administration's
perspective on Amendment 2.
MS. SALANGUIT asked that the Department of Law (DOL) offer its
perspective.
2:10:05 PM
AARON PETERSON, Assistant Attorney General, Fish & Game Section,
Office of Special Prosecutions, Criminal Division, Department of
Law (DOL), referred to AS 11.81.900[44], which read as follows:
(44) "peace officer" means a public servant
vested by law with a duty to maintain public order or
to make arrests, whether the duty extends to all
offenses or is limited to a specific class of offenses
or offenders;
MR. PETERSON advised that the statute specifically read that
"the duty extends to all offenses or is limited to a specific
class of offenses or offenders." In the event it is the intent
of the legislature to exclude fire prevention officers from this
particular statute and the requirement that people declare they
have a firearm concealed on their person when making contact
with a peace officer, Amendment 2 would accomplish that goal.
He opined that this requirement risks causing confusion among
the public as to who to advise that they are carrying a
concealed weapon. From a purely legal perspective, Amendment 2
would likely be necessary in order to exclude people from
reporting to a fire prevention officer that they are carrying a
concealed weapon, he said.
2:12:22 PM
MS. SALANGUIT, in response to Chair Claman advised that
Representative Guttenburg opposes Amendment 2.
2:12:39 PM
REPRESENTATIVE KOPP posed that, under current law, a homeowner
was contacted by any recognized peace officer, whether there is
a duty for the homeowner to disclose that they are carrying a
concealed weapon in their own home or on their own property
outside of the home.
MR. PETERSON answered that there is case law on that specific
topic, but he would have to research the issue.
2:13:44 PM
The committee took an at-ease from 2:13 p.m. to 2:14 p.m.
2:14:49 PM
REPRESENTATIVE KOPP opined that the courts have ruled that in a
person's home or property, there is not a duty to disclose but
because the answer cannot be found at this moment, he supports
the spirit of the amendment.
2:15:25 PM
MR. PETERSON, in response to Chair Claman as to when expects to
complete his research, answered that it should be another few
minutes.
CHAIR CLAMAN advised that Amendment 2 would be held and Mr.
Peterson would get back to the committee.
2:16:42 PM
REPRESENTATIVE KOPP noted that another clarification the
committee might request is whether this amendment applies to
being contacted by a peace officer on public lands, and also on
a person's private property. He asked whether Amendment 2 is
inclusive of both of those issues.
MR. PETERSON responded to Chair Claman that he would research
Representative Kopp's additional question.
2:17:18 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 3, labeled 30-
LS1382\J.4, Radford, 3/16/18, which read as follows:
Page 2, lines 14 - 15:
Delete "or administering the provisions of this
chapter"
REPRESENTATIVE KREISS-TOMKINS objected.
2:17:21 PM
REPRESENTATIVE EASTMAN referred to HB 355, page 2, lines 12-17,
which read as follows:
upon request of an officer or employee of the United
States or the state may, when responding to a wildland
fire or suspected fire or administering the provisions
of this chapter [AT ANY TIME] enter upon any land,
whether publicly or privately owned, for the purpose
of preventing, investigating, suppressing, or
controlling a wildland fire or a destructive agent.
REPRESENTATIVE EASTMAN advised that this section deals with the
right of anyone who is "doing any of these listed activities" to
enter private property and perform a service on that property
with or without the notification or permission of the property
owner. He opined that that is an important issue to consider
before "we do that blindly." He suggested that the committee
better tailor what it is that someone who would be entering
private property without permission "would be able to do." He
described this chapter as quite broad, and suggested the
language could read, such that anyone responding to a wildfire
or suspected wildfire would have the go-ahead to enter someone's
private property and take care of that fire or suspected fire.
However, he described, "administering the provisions of this
chapter" is overly broad and situations will occur wherein the
committee did not intend these individuals to perform. Some of
the [fire protection officers] might be employed temporarily and
they are performing these types of activities on a seasonal or
other basis with minimal training, he said. There is concern
that these individuals, by entering the private property, see
items they would otherwise be unable to see, and it comes up
missing later, he said.
2:20:36 PM
CHAIR CLAMAN asked whether Representative Guttenburg supports or
opposes Amendment 3.
MS. SALANGUIT advised that Representative Guttenburg opposes
Amendment 3. She pointed out that this was actually an
amendment taken up in the House Resources Standing Committee
with Representative Rauscher. She said, "It was kind of a
compromise" to be a little more specific as to when "we can
enter land." Prior to this, the language was "at any time" and
Representative Guttenburg added "when responding to a wildland
fire or suspected fire or administering the provisions of this
chapter" to be more specific.
2:21:10 PM
CHRIS MAISCH, State Forester and Division Director, Division of
Forestry, Department of Natural Resources, noted that he would
now recap the key points of the discussion within the House
Resources Standing Committee as follows:
In no way does an individual's criminal rates for
search and seizure stop from this section of this
particular statute. There is also, of course, their
constitutional rights. And then, as necessary, if it
is after the fire, so its not control or suppression
of the fire, a warrant is required if we do not have
the permission of the landowner to enter the property
to determine cause and origin of the fire, which are
two key aspects our [fire protection officers] FPO's
are trained to do. So, we feel this language is
necessary for our staff to properly do their charge.
2:22:12 PM
REPRESENTATIVE LEDOUX asked Mr. Maisch to described exactly what
"administering the provisions of this chapter" means, and where
the bill read that a warrant would be required.
MR. MAISCH answered that a warrant is required if a suspected
criminal charge may be pending based upon the investigation. He
related that while his officers are not badge or gun carrying
officers, they are trained to enforce the provisions of this
chapter, the safe burning practices in regulation and statute,
which includes determining cause and origin of all wildland
fires, thereby requiring a fire investigation. Sometimes, he
offered, investigations can be completed at the time the
suppression action and on other occasions, the investigations
must take place after the suppression actions.
2:23:29 PM
REPRESENTATIVE LEDOUX noted that she did not see where the bill
read that a warrant was required. She asked someone from the
Department of Law (DOL) offer its perspective on Sec. 3 because
that section talks about "when we're talking about what we're
talking about," the word "investigating," whether a warrant is
required, or whether this supersedes other law requiring a
warrant.
2:24:21 PM
ANNE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division, Department of Law (DOL),
answered that the requirement for a warrant is a matter of
constitutional law and there is nothing in state statute that
would even proport to supersede that constitutional law. The
warrant requirement is a Constitution of the United States and
Constitution of the State of Alaska requirement that still
applies and overlays all statutes on the books, including this
statute, she said.
2:25:00 PM
REPRESENTATIVE LEDOUX surmised that if a fire protection officer
was responding to a suspected wildland fire, a warrant was
clearly not required.
MS. NELSON responded that a warrant would not be required
because with exigent circumstances that authority is a little
broader. The investigation the fire prevention officers
typically perform is related to the cause and origin of the fire
because that is valuable information needed to develop
suppression tactics and actively fight the fire, she explained.
When it comes to criminal liability, she further explained that
that investigation is typically performed under the direction of
the Alaska State Troopers and the criminal division of the
Department of Law (DOL).
2:25:56 PM
REPRESENTATIVE LEDOUX questioned whether the investigation is
performed under the auspices of the DOL.
MS. NELSON replied that the initial investigation as to the
cause and origin of a fire is often performed in the field
during the initial attack of the fire by the fire prevention
officers. In the event it appears there is a question of
criminal liability, that investigation is performed under the
auspices of the criminal division of the DOL, the Alaska State
Troopers, and regular law enforcement, she said.
2:26:37 PM
REPRESENTATIVE LEDOUX noted that if administering the provisions
of this chapter or investigating the criminal liability is all
performed under the DOL with a warrant and so forth, she asked
why this needs to be in the statute. She further asked why it
should not read, "when responding to a wildland fire or
suspected fire," thereby, removing the phrase "administering the
provisions of this chapter" and to also remove the word
"investigating."
MS. NELSON responded that in addition to the criminal provisions
in this bill, there are also a number of provisions addressing
"bail schedule offenses" and enforcing the permit program that
the Division of Forestry currently administers. This right of
entry, she explained, would actually enable the officers to
follow up on issued permits and on complaints that burning was
being conducted, either in violation of a permit or on a day
when burning was closed statewide.
2:28:06 PM
REPRESENTATIVE LEDOUX asked whether that would be a criminal
issue under the DOL anyway.
MS. NELSON answered, "Not necessarily," and referred to HB 355,
Sec. 21, page 6, lines 18-20, authorizing the Alaska Supreme
Court to publish a schedule of bailable offenses, which are akin
to parking tickets a person can pay in complete satisfaction of
the offense without appearing in court.
2:28:53 PM
REPRESENTATIVE LEDOUX related that she still does not understand
why the investigation and the administering of all of this would
not be under the DOL.
CHAIR CLAMAN asked Ms. Nelson whether part of the investigation
in fire prevention is trying to determine where the fire started
in order to extinguish the fire. In the event, a warrant was
required as part of the investigation in determining the
location of the smoke and where the fire started, an officer
could put significant danger to properties by going to the
courthouse to obtain a warrant, he remarked. He asked Ms.
Nelson to clarify because Sec. 3 is specific to the employees of
the Division of Forestry so it is a fairly narrow number of
people who actually have this authority. He further asked
whether an investigation as to where the smoke was coming from
was different from a criminal investigation.
MS. NELSON answered that Chair Claman was correct,
"investigating" has a number of meanings in terms of the
Division of Forestry's fire program.
2:30:24 PM
REPRESENTATIVE LEDOUX commented that it appears the term
"investigating" should have parameters in order for the public
to know that the fire protection officers are investigating in
order to determine where the fire was located rather than
investigating a criminal issue.
CHAIR CLAMAN asked Mr. Maisch to describe the range of conduct
involved in investigating.
MR. MAISCH responded that with regard to the term
"investigating," there are different kinds and needs for
investigation (audio difficulties). In the event of a smoke
report, oftentimes the fire protection officers must cross
numerous pieces of private property to determine whether there
actually is a fire. Another type of investigating, he offered,
is that once the fire protection officers have located the fire,
to investigate the cause of that fire, the ignition source, the
origin, and on what property the fire was located. He explained
that that is a more formal investigation, which his staff is
highly trained to perform because a fire investigation is a
fairly complex effort and is solely focused on the cause and
origin of the fire. In the event the investigation of the fire
appears to lead to a charge under the statutes, the State Fire
Marshals and Alaska State Troopers become involved, he
explained.
CHAIR CLAMAN referred to the audio difficulties in ascertaining
Mr. Maisch's testimony and asked him to again explain the range
of investigations and to speak slowly.
MR. MAISCH repeated that the two types of investigations that
are easiest to describe would be as follows: when there is a
smoke report, oftentimes the fire protection officers must enter
numerous pieces of private property to determine whether there
is an actual fire; and when a fire has been located, a formal
investigation is performed to determine the origin of the fire,
the cause of the fire, and how it actually ignited. He
described that as a fairly extensive investigation, and his
enforcement officers are highly trained to make determinations
as to the cause and origin of the fire. In the event that
investigation appeared to lead to a criminal charge against the
private landowner for a violation of the statute, the Alaska
State Troopers or the State Fire Marshals become involved with
that aspect of the investigation, he said.
2:33:53 PM
REPRESENTATIVE LEDOUX surmised that expensive investigating
could be performed under this proposed statute, investigations
that might lead to criminal charges, and this investigation
could be performed without a warrant.
MR. MAISCH answered that when they are trying to determine
whether there is a fire, and suppressing or controlling the
fire, it is considered the early stage of investigating for
cause and origin. At the point the fire is controlled, if it is
believed the investigation will lead to criminal charges, the
State Fire Marshal and Alaska State Troopers become involved, he
reiterated. Oftentimes, he related, landowners offer their
permission to enter the property, but if a warrant is necessary,
that would be performed through law enforcement and not through
his staff.
2:35:06 PM
REPRESENTATIVE EASTMAN asked Mr. Maisch to describe a
destructive agent.
MR. MAISCH responded that a destructive agent is defined AS
41.15.170(2), which read as follows:
(2)"destructive agent" means an insect, pathogen,
or other environmental agent that causes damage to a
forest resource;
2:36:14 PM
REPRESENTATIVE EASTMAN asked that while someone is controlling
the destructive agent based on this bill, would they need a
warrant or any type of permission to be able to do perform that
control aspect on someone's private property, or could they go
ahead and [investigate] without notifying the private property
owner.
MR. MAISCH replied that the best example would be the Spruce
Bark Beetles that can kill large tracts of trees and create a
fire hazard from the resulting dead materials. He noted that
through other regulations, the commissioner of the Department of
Natural Resources (DNR) can establish a zone of infestation,
which includes a best interest finding, and then emergency
regulations can be put in place to deal with the destructive
agent. He explained that this was initially created in 1961,
and since that time, additional regulations have been developed
to deal with destructive agents, but this does not give that
right in conjunction with the other activities he previously
described.
2:37:54 PM
REPRESENTATIVE EASTMAN clarified that his question was in the
event Mr. Maisch was to administer the provisions of this
chapter to control a destructive agent, whether there are any
requirements under this bill to notify the private property
owner.
MR. MAISCH answered that the property owner would have to be
notified, and those sections are addressed in the Alaska Forest
Resources and Practices statute.
CHAIR CLAMAN noted that this particular section is about the
right to enter property to control and suppress fires, and the
destructive agents become a factor in what is burning. It
appears that this section would not give authority to deal with
suppression issues just because there was a destructive agent,
it is the combination of a fire where a destructive agent is
involved, he opined.
2:38:58 PM
REPRESENTATIVE EASTMAN related that that is the question because
the language is, "or controlling a wildland fire or a
destructive agent." He opined that that now is being opened up
to be anyone who is administering any of the provisions of this
chapter. He asked whether the fact that a fire protection
officer cannot go onto someone's property without notifying them
is located in another area of the bill. He commented that he
did not see any requirement for notification in this statute and
asked whether another statute being drawn upon to reach that
conclusion.
MR. MAISCH answered that Representative Eastman was correct and
he then referred to AS 41.17, Forest Resources and Practices
statute. Mr. Maisch commented that he had previously outlined
that process that the commissioner of the Department of Natural
Resources (DNR) would follow. He reiterated that a zone of
infestation would be declared through a best interest finding,
emergency regulations would be put in place, and if the
landowner did not comply with those regulations, AS 41.15 gives
the authority for the fire prevention officers to enter and deal
with the destructive agent.
2:40:15 PM
REPRESENTATIVE EASTMAN surmised that in administering the
provisions of this chapter, the reason for this expanded scope
of administering the provisions of this chapter is to enter
someone's private property and issue a citation of some kind.
In the event this permissive language is not here, a warrant "or
whatnot" would be required because the landowner had not
provided their permission to enter that private property.
MR. MAISCH remarked that he could not follow Representative
Eastman's question and asked that he repeat his question.
2:41:01 PM
REPRESENTATIVE EASTMAN surmised that the reason for this broaden
scope of administering the provisions of this chapter, rather
than simply responding to a suspected wildland fire, is because
the bail schedules are part of this bill with the intent to
issue citations and so forth. In order to enter someone's
private property to issue the homeowner a citation, this
broadened scope is necessary to be able to enter the property.
Otherwise, he commented, the department would have to go about
it in a different manner and obtain a warrant, or something.
MR. MAISCH answered that he would not interpret it in quite the
manner in which Representative Eastman phrased his question. He
explained that in the event someone committed a criminal act,
law enforcement would have the right to enter that property to
issue the ticket or charge. He said that "administer the
provisions of this act" are the things he previously had
discussed, which is to suppress the wildland fire, investigate
whether there is an actual fire as to a smoke report or other
complaints, and then determine the origin and cause of the fire
through an investigation which can occur at the time of the fire
or after control of the fire.
2:42:32 PM
REPRESENTATIVE EASTMAN posed a scenario of a residential fire
and someone
CHAIR CLAMAN pointed out to Representative Eastman that this
section, including Amendment 1, does not deal with residential
fires, it only deals with wildland fires and to limit his
questions to wildland fires.
2:42:54 PM
REPRESENTATIVE EASTMAN noted that he would like to contrast a
residential fire with a wildland fire. He asked that when
responding to a residential fire, a warrant or this type of
provision would not be necessary because responding to such a
fire already includes, and once the fire scene is controlled, an
investigation can take place without obtaining a new warrant.
Except, he said, at the time the fire protection officers cease
to have control of the fire scene, a warrant would be necessary
to go back onto the property. He asked whether, this situation
is similar to the right to have that investigation without a new
warrant or is something different taking place here.
MR. MAISCH related that he did not believe anything different
was taking place as to whether it was a structure or a wildland
fire. He commented that as he had previously testified, after
the fire is controlled and the landowner has given permission to
continue the investigation, if they suspect the investigation
could lead to criminal charges, the Alaska State Troopers and
the State Fire Marshal's Office becomes involved and they will
seek a warrant if it is appropriate for the circumstances. He
commented that he does not see that there is a difference
between how a structure or wildland fire would be treated as
Representative Eastman had described.
2:44:39 PM
REPRESENTATIVE EASTMAN asked Mr. Maisch to make clear for the
committee that if something criminal was suspected, a warrant
would be necessary. In the event "you are leaving the property
and you no longer are in control of it, you want to come back
later, normally you would have to get some kind of warrant." He
asked why this authority is necessary to enter onto the private
land.
MR. MAISCH reiterated that again, that is a requirement when
trying to determine whether there actually is a fire from a
smoke report taken from a neighbor, aircraft often reports
smoke/fires, or someone else, and it is their job to determine
where that fire is located. Oftentimes, significant amounts or
private property are crossed during the investigation of that
smoke report. Essentially, he advised, that is what this
chapter does, it gives them that authority to enter that
property.
2:46:16 PM
REPRESENTATIVE KOPP commented that exigent circumstances apply
to municipal firefighting and wildland firefighting, which is an
exception to the warrant requirement due to the fantastically
destructive potential of fire. In the event a burn ban is in
effect and something is going on in a person's backyard, it will
be clear when the fire department shows up because they will be
pulling hoses around the house. The firefighters would not be
knocking on the door because they are there to extinguish the
fire and ask questions later. There are exigent circumstances
that apply due to well documented catastrophic fires losses,
Alaska is replete with horrific fires, and the fire service
agencies must respond quickly, he pointed out. Representative
Eastman asked that once the scene was secure and something
criminal was discovered, whether the agency would go to the
courthouse for the warrant. In response, Mr. Maisch's answer
was that they would, as is the current process with the
municipal and state forestry. As far as administering the
provisions, he opined, that would include issuing citations.
Once the fire protection officers arrive and extinguish the
fire, at that point, the administering portion is the civil
action of issuing a summons or citation. Currently, he advised,
there is nothing in the law requiring a police officer to obtain
a search warrant in order to go back onto a person's private
property to simply issue a citation; therefore, the officer can
go back to that person and issue the citation. He opined that
it is consistent with the exceptions to the current search
warrant requirement that applies to the fire services when they
are in active response mode. This bill puts the current
practice into statute, he related that it is constitutionally
sound and it speaks practically as far as firefighting.
2:49:09 PM
REPRESENTATIVE EASTMAN referred to Sec. 41.15.040, Right of
entry to control and suppress fires, [page 2, lines 9-17], and
commented that that is exactly what this section should
represent. Except, he noted, this [section] is about responding
to wildland fires, suspected fires, or administering the
provisions of this chapter, which deals with destructive agents
and so forth. Elsewhere in this section there is the
opportunity for officers, once they are on the [private] land to
suppress, prevent, and control using all of the sorts of duties
firefighters perform. He opined that that is where the line
should be drawn because the idea that someone, who is not
responding to a fire or suspected fire, could enter onto
someone's land to administer the provisions of this chapter and
write citations and so forth, is not a good idea. In the event
firefighters are responding or coming back from responding that
is fine, he said, but not for them to enter onto private
property when there is no fire or suspected fire and write
citations on someone's private property.
[The committee treated the objection to Amendment 3 as
maintained.]
2:50:26 PM
A roll call vote was taken. Representatives Eastman and LeDoux
voted in favor of the adoption of Amendment 3. Representatives
Kopp, Stutes, Kreiss-Tomkins, and Claman voted against it.
Therefore, Amendment 3 failed to be adopted by a vote of 2-4.
2:51:13 PM
The committee took a brief at-ease.
2:51:37 PM
CHAIR CLAMAN advised that the committee would now return to the
discussions on Amendment 2, and he asked Mr. Peterson to provide
his research as to the two questions previously discussed.
2:51:52 PM
MR. PETERSON responded that he does not believe there are any
exclusions for a person being in their dwelling, for example,
specifically with respect to informing a peace officer that they
are concealing a deadly weapon. Mr. Peterson referred to AS
11.61.220(a)(1)(A), which read as follows:
(a) A person commits the crime of misconduct involving
weapons in the fifth degree if the person
(1) is 21 years of age or older and knowingly
possesses a deadly weapon, other than an ordinary
pocket knife or a defensive weapon,
(A) that is concealed on the person, and,
when contacted by a peace officer, the person fails to
(i) immediately inform the peace
officer of that possession; or
(ii) allow the peace officer to secure
the deadly weapon, or fails to secure the weapon at
the direction of the peace officer, during the
duration of the contact;
MR. PETERSON advised that there is an affirmative defense for
being in "your dwelling or on land pertinent to the dwelling"
for other offenses under that same statute, but not for
informing the peace officer that a person has a concealed
weapon, as that is an officer's safety issue.
2:52:34 PM
CHAIR CLAMAN asked Mr. Peterson to explain his statement "what
is in the statute."
MR PETERSON referred to AS 11.61.220(a)(1)(A) and explained that
it is the requirement that a person advise a peace officer
[under subparagraph (A)] that they are carrying a concealed
weapon.
2:53:02 PM
CHAIR CLAMAN surmised that that is for the protection of the
officer.
MR.PETERSON answered that it is to let the officer know the
entirety of the situation, which is the reason there is not a
statutory exception for where that contact occurs. He noted,
for example, AS 11.61.220(a)(6), which read as follows:
(a) A person commits the crime of misconduct
involving weapons in the fifth degree if the person
(6) is less than 21 years of age and
knowingly possesses a deadly weapon, other than an
ordinary pocket knife or a defensive weapon, that is
concealed on the person.
MR. PETERSON advised that the cite it is for possessing a deadly
weapon while being under the age of 21 years if some other
things apply. He then offered that the drafters of this statute
specifically considered that private property question, and the
drafters did not add that affirmative defense to the requirement
that a person inform a peace officer that they have a deadly
weapon on their person.
2:53:56 PM
REPRESENTATIVE KOPP asked whether Amendment 2 applies to both
public and private land.
MR. PETERSON responded that the amendment does not appear to
distinguish between public and private land. Certainly, AS
11.61.220 does not for the purposes of subsection (a)(1), have
an exception for public land either. For example, he offered,
in the event someone is in the field fishing and they are
contacted by a peace officer, they are required to disclose that
they are carrying a deadly weapon.
2:55:03 PM
REPRESENTATIVE KOPP commented that he thought there was [an
exception] for a person's home and property, and because there
is not [an exception] already in the law, he does not support
Amendment 2.
Representative Kopp explained that it is very important for the
safety and protection of the state's law enforcement when they
have contact with someone in the field, wherever that contact
occurred, while on official duty. The law currently provides
that the person disclose that they are carrying a concealed
weapon, thereby, allowing the officer to be aware of all of the
facts in the situation. He pointed out that the law does not
require law enforcement to take possession of the gun, it simply
read that a person must notify the officer of the concealment
gun. He stressed that it is very important for officer safety
reasons that the legislature not change the law as it is
currently written.
2:56:03 PM
REPRESENTATIVE KREISS-TOMKINS maintained his objection to
Amendment 2.
REPRESENTATIVE EASTMAN noted that Amendment 2 simply read that
nothing in this section requires a person to disclose a deadly
weapon to a peace officer, as defined in this section. He
opined that when the average Alaskan comes upon Smoky the Bear
and they discuss fire, fire prevention, or wildfires, the person
is probably not thinking that they are speaking with a peace
officer. He said he does not believe "they were ever intended
to" because these are not peace officers wearing guns and Alaska
State Trooper uniforms, and [the person] is to disclose that
they are carrying a deadly weapon. This is a completely
different concept, he stressed, these are peace officers
performing a very different function. The legislature should
not require this language from "our traditional law enforcement"
to apply to these kinds of special condition peace officers.
2:57:11 PM
REPRESENTATIVE KOPP declared a point of order. Representative
Kopp offered that the entire Amendment 2 is out of order because
the committee was clearly advised that these persons, for
purposes of that definition, do not fall under peace officer.
The testifier advised that fire protection officers are not
armed and do not wear badges and, to begin with, the duty to
disclose may not even apply to those persons. In the event that
is the case, he opined that the amendment is unnecessary even by
the intent of the sponsor.
2:58:07 PM
REPRESENTATIVE EASTMAN declared a point of order.
REPRESENTATIVE LEDOUX questioned whether he was making a point
of order on a point of order.
2:58:17 PM
REPRESENTATIVE KOPP explained that they are not sworn peace
officers, they are firefighters.
CHAIR CLAMAN noted that the definition in the bill is about who
is a peace officer.
REPRESENTATIVE EASTMAN said that he did need to make a point of
order.
CHAIR CLAMAN advised Representative Eastman that he could make a
statement because until he ruled on Representative Kopp's point
of order, another point of order is not appropriate.
REPRESENTATIVE EASTMAN opined that it is important to correct
the record because during this hearing today, the Department of
Law (DOL) testified that these peace officers, whether or not
they have badges and hats, very much fall under this, and he
asked that DOL re-testify to clarify its answer to that
question.
2:59:26 PM
CHAIR CLAMAN asked Mr. Maisch to describe what the [fire
protection officers], who are a "limited authority peace
officer" under the Division of Forestry, look like, what they
carry, and Mr. Maisch's understanding of the scope of their
authority.
REPRESENTATIVE KOPP asked whether Title 11 applies.
MR. MAISCH referred to AS 41.15.950(a), which read as follows:
(a) The following persons are peace officers of
the state and they shall enforce the provisions of
this chapter and the regulations adopted under this
chapter:
(1) solely for the purpose of enforcing this
chapter, an employee of the department, or other
person, authorized by the commissioner;
(2) a police officer in the state.
(b) A person designated in (a) of this section
may, when enforcing the provisions of this chapter or
a regulation adopted under this chapter,
(1) execute a warrant or other process
issued by an officer or court of competent
jurisdiction;
(2) administer or take an oath, affirmation,
or affidavit; and
(3) arrest a person who violates a provision
of this chapter or a regulation adopted under this
chapter.
MR. MAISCH replied that their scope is narrowly defined. He
explained that they are peace officers by definition, except
there is a range of peace officers from the fully sworn peace
officer to the type of fire prevention officer within the
Division of Forestry, who do not carry a gun or wear a badge.
3:00:29 PM
CHAIR CLAMAN asked whether a peace officer designated under AS
41.15.950 is covered within the meaning of Title 11 peace
officer that is at issue in Amendment 2.
MS. NELSON responded that whether they are or not depends upon
the enforcement context. The fire prevention officers working
for the Division of Forestry are commissioned by the
commissioner in accordance with AS 41.15.950(a) and pursuant to
the definition of peace officer in AS 01.10.060(7)(F), which
read as follows:
(a) In the laws of the state, unless the context
otherwise requires,
(7) "peace officer" means
(F) an officer whose duty it is to
enforce and preserve the public peace;
MS. NELSON advised that that definition of peace officer
definitely applies, and it is outside of Title 11.
3:02:16 PM
REPRESENTATIVE KOPP pointed to Amendment 2, page 1, lines 4-5,
which read as follows:
(c) Nothing in this section requires a person to
disclose a deadly weapon under AS 11.61.220(a)(1)(A)
to a peace officer under (a)(1) of this section.
REPRESENTATIVE KOPP then referred to AS 11.61.220(a)(1)(A),
which read as follows:
(a) A person commits the crime of misconduct
involving weapons in the fifth degree if the person
(1) is 21 years of age or older and
knowingly possesses a deadly weapon, other than an
ordinary pocket knife or a defensive weapon,
(A) that is concealed on the person,
and, when contacted by a peace officer, the person
fails to
(i) immediately inform the peace
officer of that possession; or
(ii) allow the peace officer to
secure the deadly weapon, or fails to secure the
weapon at the direction of the peace officer, during
the duration of the contact;
REPRESENTATIVE KOPP described this as the section of law
requiring that a person notify a peace officer that they have
concealed on their person a deadly weapon. He asked whether
this would apply to a fire [prevention officer] in the field who
entered a person's land, or whether it depends upon the scope of
duty of that fire [protection officer]. He explained that the
committee would like to understand whether this requirement of
notification to a peace officer would apply to the Division of
Forestry [fire prevention officer].
MS. NELSON opined that the answer to that question turns on
whether fire prevention officers fall within the Title 11
definition of peace officer. She advised that peace officer, as
described for the purposes of Title 11, means a public servant
who is vested by law with a duty to maintain public order, make
arrests whether the duty extends to all offenses, or is limited
to a specific class of offenses or offenders. Therefore, even
though that description is located under Title 11, AS 11.81.900
read that those definitions are for the purpose this title
unless otherwise specified or unless the context requires
otherwise. Fire prevention officers would fall under the scope
of both of those definitions; however, they do not have general
Title 11 enforcement authority, she advised.
3:05:42 PM
REPRESENTATIVE KREISS-TOMKINS surmised that Representative
Kopp's point of order was unnecessary because such a duty to
disclose does not already exist. He asked whether such a duty
to disclose does not presently exist.
MS. NELSON responded that in the 10-years she has been advising
the Division of Forestry, she was unsure that issue had ever
been researched. She related a situation where fire prevention
officers had gone to someone's private property to investigate a
report that a neighbor was burning, and the fire appeared to be
uncontrolled and dangerous. Those officers, she noted, were met
at the bottom of the driveway by a number of individuals
carrying loaded weapons, and in that situation, there was never
a question as to whether those weapons would be disclosed. She
explained that the fire prevention officers are trained to not
engage in such situations, to back off and avoid the conflict,
and contact the Alaska State Troopers.
3:07:23 PM
REPRESENTATIVE LEDOUX noted to Representative Kopp that prior to
this philosophical or legal discussion as to whether these fire
prevention officers fall under the definition of peace officer
pursuant to Title 11, it sounded like Representative Kopp wanted
to make sure that the existence of a concealed weapon was
disclosed. For example, she offered, if the committee
determines that the fire protection officers do not fall under
AS 11.61.220(a)(1)(A), she asked whether Representative Kopp
would like to see that the existence of a concealed weapon must
be reported. She further asked whether Representative Kopp's
rationale for reporting the concealed gun to peace officers is
whether they fall enough into the peace officer category in
order to make sure someone reports their concealed weapon.
REPRESENTATIVE KOPP stressed that he wants to make sure the
committee is not undoing current law. Representative Kreiss-
Tomkins was correct in asking whether this amendment was
redundant. He pointed out that he wants to make sure that if
these people are peace officers, and the testifiers were unsure,
then he does not want to undo what the law currently requires.
He explained that in the event they are recognized as peace
officers, the current law read that if a person is carrying a
concealed weapon and contacted by a peace officer, the person
must notify the peace officer of the concealed weapon on their
person. He stressed that that is a very good officer safety law
that the legislature passed many years ago to protect the safety
of peace officers in the line of duty. He related his concern
that in the event Amendment 2 undoes that law, if they are peace
officers, this amendment would actually undo what current law
requires. He reiterated that he wants to understand the status
of fire protection officers because he does not support undoing
Alaska's current law.
3:09:59 PM
REPRESENTATIVE LEDOUX related her understanding for his
response, and offered a scenario that "they decided that they --
that we were just told that these are not peace officers under
AS 11, etc., would you want to see them protected like that, or
not. Or, is the big thing the definition whether they are
covered by AS 11.?" In the event there is good rationale for
making sure [the peace officer is aware of the concealed deadly
weapon], she asked whether it really matters whether they are
currently covered under Title 11. She asked whether
Representative Kopp would like to see these folks covered or not
covered and commented that she has a feeling that when Title 11
was passed, no one had considered this issue because no one
currently knows the answer to this question.
REPRESENTATIVE KOPP responded that he is not favorable to
expanding the definition of peace officer beyond current law.
He said he was trying to get at what the definition is in order
that the committee does not unintentionally upend current law
with this amendment, that is a whole separate public policy
question. Once the definition of peace officer is expanded, he
advised, it gets into all kinds of questions about benefits and
it opens a pandora's box. It is important, he expressed, that
the committee is careful on these types of amendments and
understands what is actually before the committee.
REPRESENTATIVE LEDOUX advised that she did not believe the
committee had any idea of what was before it based upon the
answers to the questions posed to the testifiers.
3:12:09 PM
CHAIR CLAMAN noted that when the police are executing warrants,
they come wearing big jackets with "POLICE" written all over it
because they do not people to make no mistake. He opined that
in the somewhat narrow scenario being discussed today, say for
example, a fire was taking place and a fire protection officer,
a designated peace officer pursuant to Title 41, who does not
look exactly like a police officer because they are not wearing
"POLICE" jackets and they are not clearly identified as a public
safety officer in the traditional sense. The fire protection
officers wear firefighting gear and wildland firefighting gear
and if everyone was running around trying to extinguish that
fire, and someone did not disclose in that instance, he opined,
that based on Ms. Nelson's testimony, the person would unlikely
be charged. He explained that if the person was charged, their
defense would be that they had no idea this was a police
officer, and that knowledge about whether the person was a
police officer would be a prerequisite to charging someone under
AS 11.61.220. He opined that the question being discussed today
is whether the committee wants to weaken the protections the
state is trying to provide for easily identified and recognized
public safety officers, or does the committee want to diminish
those protections in current law, or to maintain the status quo.
3:14:00 PM
REPRESENTATIVE KOPP noted that according to testimony, those
folks are either not authorized to carry firearms or in fact, do
carry firearms. It appears there would be little within which
to identify the folks working for the Division of Forestry,
other than possibly their wildland firefighter grey shirt and
green pants or whatever is the standard of duty. He explained
that the reason for the notification requirement in the law is
to protect readily recognized uniformed peace officers from
bodily injury harm and allow them the ability to know whether a
threat was present or the possibility of an elevated threat, to
keep them safe. He stated that this definition is important
because if these people were for all intents and purposes peace
officers, he would not want to deny them that same protection.
Although, he advised, he has a high doubt in his mind that the
intent of the enactment of this statute was to extend this
protection to these types of folks, but the question is
unanswered in his mind.
3:15:43 PM
REPRESENTATIVE KREISS-TOMKINS agreed with Representative
LeDoux's statement that the committee does not know what is
before it, and Ms. Nelson did not appear to know the answer to
his question because it enters an obscure realm. In practice,
these fire protection officers run up peoples' driveways to
investigate smoke or a potential fire currently, he asked
whether the Division of Forestry presently has an expectation
that the people they encounter will disclose whether they are
carrying firearms.
MR. MAISCH answered that the Division of Forestry does not have
that expectation, and its officers are noticeable because they
arrive in a lime green truck with flashing lights, wearing
yellow firefighter shirts, helmets, and shoulder patches
identifying them as a Division of Forestry firefighter.
CHAIR CLAMAN surmised that the Division of Forestry does not
expect their folks to be advised that a person is carrying a
concealed weapon.
MR. MAISCH stated, "We do not."
3:17:21 PM
REPRESENTATIVE EASTMAN opined that this amendment is trying to
preserve that same expectation because this bill expands the
definition of firefighter to encompass things such as citations
that are more typically thought of as police officers. He
opined that firefighters would like the public to be clear as to
exactly what they are there to do, that they are not the police.
He commented that just because "we're given" the right to (audio
difficulties) he did not think that should change the way the
public will be looking at fire protection officers.
REPRESENTATIVE KREISS-TOMKINS maintained his objection.
3:19:08 PM
A roll call vote was taken. Representatives Eastman and LeDoux
voted in favor of the adoption of Amendment 2. Representatives
Reinbold, Kopp, Stutes, Kreiss-Tomkins, and Claman voted against
it. Therefore, Amendment 2 failed to be adopted by a vote of 2-
5.
[HB 355 was held over.]
3:21:05 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:21 p.m.
| 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 Supporting Document-Division of Forestry Letter 3.19.18.pdf |
HJUD 3/19/2018 1:00:00 PM |
HB 355 |
| HB355 Supporting Document-Officer for the Kenai Peninsula Borough Letter 3.19.18.pdf |
HJUD 3/19/2018 1:00:00 PM |
HB 355 |
| HB355 Opposing Document-Public Comment 3.19.18.pdf |
HJUD 3/19/2018 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 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 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 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 Supporting Document-Public Comment (Part 3) 3.14.18.pdf |
HJUD 3/19/2018 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 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 |
| HB075 Supporting Document-Connecticut, Indiana, & Alaska Comparison Table 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Additional Document-Redington v. State 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-National Review Article - The Gun Violence Restraining Order, Responding to a Libertarian Critique 3.19.18.pdf |
HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Additional Document-Developments in Mental Health Law V36 Issue2 Summer2017 3.19.18.pdf |
HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB355 Amendments #1-10 3.19.18.pdf |
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 |