Legislature(2017 - 2018)GRUENBERG 120
03/28/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB75 | |
| SB93 | |
| HB367 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 93 | TELECONFERENCED | |
| + | HB 367 | TELECONFERENCED | |
| += | HB 75 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 75-GUN VIOLENCE PROTECTIVE ORDERS
1:06:37 PM
CHAIR CLAMAN announced that the first 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." [Before
the committee was proposed committee substitute (CS), Version
30-LS0304\R, Martin, 3/26/18, adopted by the committee during
the 3/26/18, 7:00 p.m. meeting.]
1:07:49 PM
CHAIR CLAMAN asked Captain Dan Lowden whether, in terms of
standard procedure for state troopers and VPSOs, there is a
difference in how domestic violence protective orders are served
today, and to describe the general practice when serving
domestic violence protective orders.
1:08:32 PM
CAPTAIN DAN LOWDEN, Deputy Commander, Division of Alaska State
Troopers, Department of Public Safety, responded that this
question is best answered by Sergeant Matthew Hightower.
1:09:18 PM
MATTHEW HIGHTOWER, Sergeant, Alaska State Troopers, Department
of Public Safety, answered that there is no difference between
how an Alaska State Trooper and or a Village Public Safety
Officer (VPSO) would serve a domestic violence protective order.
He explained that the domestic violence protective order is
entered into the Alaska Public Safety Information Network
(APSIN) database as well as its Records Management System (RMS),
and they serve the respondent with little delay to no delay, if
possible.
1:09:47 PM
CHAIR CLAMAN asked whether the department typically sends one
state trooper or VPSO out to serve a domestic violence
protective order, or whether the service is typically a team of
two officers.
MR. HIGHTOWER responded that it depends upon who is being served
and whether the division has any prior knowledge of possible
officer safety concerns. The division may choose to go with
more than one or more than two officers, but typically, he said,
the order is served by either one state trooper, court service
officer, or VPSO.
1:10:27 PM
CHAIR CLAMAN asked whether there is a difference between rural
settings and urban settings in terms of the standard practice of
the state troopers.
MR. HIGHTOWER responded that there is not a particular
difference, although it takes a bit more time in rural settings.
Typically, (indisc.) protective order in the same day and if
there is no VPSO in the village, there may be a delay in the
service of the protective order due to air flights or weather
delays, and so forth.
1:10:56 PM
CHAIR CLAMAN offered a scenario wherein law enforcement had
knowledge that the respondent being served a domestic violence
protective may have a firearm, and he asked how that knowledge
would impact practices.
MR. HIGHTOWER asked Chair Claman to clarify his question.
1:11:29 PM
CHAIR CLAMAN asked whether the state troopers assume everyone
being served a domestic violence protective order probably has a
firearm in the house.
MR. HIGHTOWER answered in the affirmative.
1:11:38 PM
CHAIR CLAMAN noted that based on Mr. Hightower's understanding
of CSHB 75, how would a gun violence protective order compare to
a domestic violence protective order when serving those orders.
MR. HIGHTOWER answered that there would not be any difference
other than the actual document that is being served on the
respondent. He added that the state troopers follow the
provisions of the protective order and remove any property under
that order.
1:12:14 PM
CHAIR CLAMAN asked the frequency that state troopers and VPSOs
are involved in serving domestic violence protective orders
currently.
MR. HIGHTOWER deferred to Captain Dan Lowden.
1:12:35 PM
CAPTAIN LOWDEN answered that in 2017, 1,360 domestic violence
protective orders were served, and the state troopers received
approximately 1,937 requests. As to the stalking orders, he
advised that 265 protective orders were served, "and we had
received an additional 66 orders for a total of 344 stalking
orders received in 2017."
1:13:28 PM
CHAIR CLAMAN requested a description of the Department of Public
Safety's (DPS) policy regarding the storage of weapons.
CAPTAIN LOWDEN responded that the process for taking a weapon
into custody is as follows: the serial number is run through the
state and national databases to determine whether the weapon was
stolen; and all information regarding that weapon is recorded,
such as, the make, model, caliber, barrel length, serial number,
and so forth. Under the right circumstances, he explained, if
the person "is there" and the state troopers know the owner,
they would probably give the person a receipt for the weapon "if
we had it in our custody, but not all of the time." He
continued explaining the storage of weapons process as follows:
after returning to the office with the weapon, it would be
packaged in specially designed boxes for the storage of weapons
in the evidence room, enter that weapon into the RMS system,
list it with the associated incident number, and place it in the
evidence locker for storage.
1:15:05 PM
CHAIR CLAMAN asked that if this legislation becomes law, whether
the state troopers would have enough storage capacity to manage
the weapons storage that may be required under gun violence
protection orders.
CAPTAIN LOWDEN answered that the difficulty in pinning the
number down to a definitive answer is that this legislation
moves into new territory and the number of weapons to expect is
unknown, but storage is at capacity in many of the rural
evidence lockers. Different commanders have advised, he said,
that they are using alternative storage for items already in
storage, and the Bethel State Troopers are using one of their
holding cells to store firearms. He opined that it probably
would not take many weapons for the division to look at some
sort of alternative storage capacity in handling the weapons.
1:16:19 PM
CHAIR CLAMAN surmised that it would depend on the number of gun
violence protective orders which were served in one year
statewide, as to the different management problems it would
create.
CAPTAIN LOWDEN replied that Chair Claman was correct, it is
based on the number of protective orders received and the number
of weapons a particular person may possess. He opined that many
folks in Alaska probably own dozens or scores of weapons.
1:16:56 PM
CHAIR CLAMAN asked whether the provision allowing custody of the
weapons by a court approved third-party would provide some
relief for the potential storage use issues.
CAPTAIN LOWDEN answered that court approved third-party
possession of the weapons could possibly assist, except it would
be difficult for a person to obtain court approved third-party
possession within the 48-hour time period, or the instantaneous
seizure under the ex parte order. Although, he acknowledged, it
would still be helpful for a court approved third-party to come
forward and take the weapons into their custody within a week or
two weeks of the seizure.
1:18:06 PM
CHAIR CLAMAN requested information as to whether the state
troopers or VPSOs are involved in the warrantless seizure of
weapons from individuals.
CAPTAIN LOWDEN responded that weapons are seized without a
warrant under several conditions and exemptions, such as:
whether there are existent circumstances to the search warrant
rules; a weapon in plain sight, such that the state troopers
make contact with someone and a weapon is sitting on the coffee
table; weapons visible via gun racks in pickup trucks would be
seized; and a pat down search revealing a weapon. Under current
law, a person must notify the police officer during contact that
they are carrying a concealed weapon and allow the officer to
secure the weapon if they so desire during the contact, in the
event something arose that caused the police officer concern or
the person was arrested, the weapon would not be returned under
this legislation. Normally, on routine contacts, the weapon
would be given right back to the person at the scene. He
reiterated that there are several ways within which the state
troopers seize weapons without a warrant.
1:20:23 PM
REPRESENTATIVE EASTMAN offered a scenario where the state
troopers encountered an individual who had not committed a crime
but was in possession of a weapon and it was not advisable for
that person to continue possessing that weapon. He requested
the authority or justification used to secure that weapon and
keep it for a period of time after making contact with the
person and the call was over.
CAPTAIN LOWDEN opined that there is not a lot of statute
authority to keep weapons under that description. He noted that
"very narrowly" if there was concern about that person's
wellbeing to the point of a Title 47 commitment and were
hospitalized for a 72-hour observation, the situation might be
such that the state troopers would secure the weapon for
safekeeping at the scene, "because there's no one there to hand
it off to."
1:22:04 PM
REPRESENTATIVE REINBOLD requested a description of why receipts
are sometimes given or not given to the person, and whether it
is difficult to return the seized weapon back to the owner.
CAPTAIN LOWDEN replied that when receipts are given or not given
to folks depends upon the situation, and at some point, a person
would most likely be given a receipt. There may be a situation,
he offered, where a person and their weapons were taken into
custody, and the state trooper would book the person into jail
before the person would receive a receipt for the weapon. In
the event a search warrant is served on a house, the state
troopers are required to leave a receipt for all of the removed
items at that time. He reiterated that the receipt is
situationally dependent and it is not a question of choosing not
to give someone a receipt, it simply depends upon the
circumstances.
1:23:48 PM
REPRESENTATIVE REINBOLD offered concern that not giving a person
a receipt for their guns depends upon the situation, especially
in warrantless cases under this bill. She noted that no one
wants guns in the wrong hands, but the constitution clearly
states that people have the right to bear arms. She asked
Captain Lowden's opinion as to how state troopers can justify
confiscating those guns after swearing to uphold the
constitution.
CHAIR CLAMAN, in response to Captain Lowden, explained that
Representative Reinbold's question is about Second Amendment
rights and how Captain Lowden addresses that issue when making a
decision to seize weapons.
CAPTAIN LOWDEN answered that the constitutionality of any law is
decided by the courts. The state troopers receive direction
through the attorney general, and at this time he is not in a
position to advise Representative Reinbold what those opinions
might be regarding this legislation. He commented that he knows
the Department of Law reviewed this bill.
CHAIR CLAMAN interjected that Representative Reinbold's question
was not specific to this bill, but broadly related to
warrantless seizures and taking possession of a firearm in
general.
1:26:15 PM
REPRESENTATIVE REINBOLD asked whether Captain Lowden takes an
oath to defend and uphold the constitution.
CHAIR CLAMAN remarked that Captain Lowden does take an oath to
defend and uphold the constitution, and he could respond to the
question about seizing weapons without a warrant.
CAPTAIN LOWDEN reiterated that there are exceptions to the
search warrant requirement, and circumstances where the state
troopers might remove a weapon from a person without a search
warrant. For example, he further reiterated, when locating a
weapon on a person during a pat down; at the time of arrest; or
when the weapon is in plain view; the state troopers are allowed
to seize the weapon at that time.
1:27:16 PM
REPRESENTATIVE KOPP asked Captain Lowden to explain the process
of entering a weapon into (indisc.) for safekeeping or as
evidence, what forms are used, whether the forms are in
triplicate, and whether the state troopers can always get a
receipt back to someone after the fact.
CAPTAIN LOWDEN responded that it has been a long time since he
worked the street and the state troopers now have a computerized
RMS, but he would attempt to answer Representative Kopp's
question. In his day, he said, physical paper forms with carbon
paper were used to document the seizure. Currently, he pointed
out, there are computer systems and some, if not most, of the
troopers have printers in their cars to print out documents.
Unfortunately for many troopers, especially those in rural
Alaska, they do not have instant access to that sort of portable
technology and the ability to print a receipt at that moment.
He explained that the data would be entered through the computer
system with the serial number, make, model, barrel length, and
so forth, and the paper is copied at that point for the person
to use as a receipt, or for the use of any number of people who
would receive that copy.
1:29:25 PM
REPRESENTATIVE KOPP referred to the rural areas of Alaska where
technology is more limited, and he asked whether those areas are
more likely to have the previously described property forms that
list the barrel length, serial number, caliber, and all of the
identifying blocks listed on the property forms to fill out in
pen. He asked whether Captain Lowden was saying that those have
been done away with entirely
CAPTAIN LOWDEN responded that he was unaware whether the folks
in rural Alaska are using paper as a backup and deferred to
Captain Andrew Merrill.
1:30:18 PM
CAPTAIN ANDREW MERRILL, Division of Village Public Safety
Officers (VPSO), Alaska State Troopers, Department of Public
Safety, responded that currently, VPSOs and state troopers in
Western Alaska have access to the records management system
(RMS) and that information is input directly into the system.
As to the issue of receipts, he related that it depends upon the
officer at the scene who views the firearm and whether they have
access to any hard-copy forms. Although, he is not aware of
troopers carrying hard-copy triplicate forms or other forms to
give to a person. Many times, he explained, it is simply a note
in their notebook describing the property seized, and some
troopers will rip a notebook page out, describe the property
seized, and the trooper and individual will sign the document.
He related that a receipt depends upon the availability of
computers, of paper, and the time of day or night, as there are
many variables impacting how a receipt is provided to an
individual.
1:31:35 PM
REPRESENTATIVE KOPP referred to the warrantless seizure of
firearms and offered a scenario where the state troopers
responded to a residence or business where a crime had not been
committed, but the state troopers encounter an angry or upset
individual with a weapon under their immediate control. He
asked Captain Lowden to describe circumstances where the weapon
may be seized for safekeeping until that situation is, at least,
stabilized.
CAPTAIN LOWDEN answered that there may be circumstances where
the state troopers receive a call that someone was threatening
to cause harm to self, or they were distraught and in possession
of a weapon, the weapon would be seized for safekeeping for the
safety of everyone at the time. Although, he said, the state
troopers try to keep that situation to a minimum and they would
look for a possible family member [to take possession of the
weapon] or some other way to keep everyone safe.
1:33:14 PM
REPRESENTATIVE LEDOUX offered a scenario of someone writing on
Facebook, "I am really mad at the world. I think I'm going to
go into a school and start shooting people." She asked whether
that person would be taken into custody and their guns seized,
or move for an involuntary commitment, or what, if anything,
would Captain Lowden do currently.
CAPTAIN LOWDEN reiterated that it has been a long time since he
worked the street, but he wants to make clear that the state
troopers are not out there monitoring people's Facebook pages at
random. In the event someone brought this post to the attention
of the state troopers, they would make an effort to make contact
the person and through interviewing the person, their family,
their friends, and so forth, gather an understanding of what was
going on with that person and why they made that post.
Currently, in the event the situation was such that the troopers
believed someone was a danger to self or others, and may suffer
from some mental difficulties, the troopers would move for a
Title 47 commitment to have that person taken to a facility for
evaluation. As to whether the weapons would be seized at that
point would depend upon the circumstances and the situation. In
the event the situation was such that the person was living with
other family members and those family members convinced the
troopers that they could properly secure the firearms, the
troopers may very well look at all of the options and possibly
leave the firearms with a family member. The first thing the
troopers would do is find the person and try to determine what
was actually taking place, he reiterated.
1:36:31 PM
REPRESENTATIVE LEDOUX described that not all people who shoot
other people necessarily have a mental illness, they are quite
sane and are simply bad people. She asked Captain Lowden to
describe the process for someone who the troopers believe will
probably shoot someone except they are not mentally ill and they
have not yet committed a crime.
CAPTAIN LOWDEN said that he believes he understands
Representative LeDoux's question, but where he might depart from
Representative LeDoux is that most likely a crime would have
been committed. He paraphrased an Alaska law, as follows:
A prohibited act of threatening bodily harm to people
with dangerous instruments.
CAPTAIN LOWDEN explained that "You don't actually have to hurt
them, you don't have to shoot at them, or those sorts of
things," but there is the ability to make an arrest and charge
someone for making threats to harm other people.
1:38:26 PM
REPRESENTATIVE LEDOUX said that she assumes the threat to harm
someone is that if she wrote on her Facebook page, for example,
"I'm going to shoot Representative Eastman," and Representative
Eastman saw that Facebook post, and it was a threat to someone
specifically. She then offered that there is a generalized
post, "I don't like the world. I'm just going to out and kill a
few people" which is not a threat to shoot anyone in particular,
and the person they shoot may not even see this threat. She
asked whether those scenarios would come under this statute.
CAPTAIN LOWDEN opined that it probably would [come under this
statute] depending upon what the words were and the other
actions the person took to communicate that threat. He said
that he does not believe it has a requirement that the threat be
made against a specific person, but rather the circumstances.
He related that he is not suggesting that the people who make
these threats are posting in a light manner, such as the people
who make stupid comments in the TSA line and are pulled out of
line immediately and questioned about their comments. The
threat needs to be to a specific person, he stated, but the
state troopers would have to look at the totality of the whole
situation and, as in many cases, the troopers would have to make
a judgement call on whether that behavior was criminal.
1:41:00 PM
REPRESENTATIVE LEDOUX asked Chair Claman whether someone from
the criminal division of the attorney general's office could
address that question.
CHAIR CLAMAN advised that her request could not be addressed
today because the committee was moving to other bills, and
suggested that the following cites may address many of the
issues Captain Lowden addressed, as follows:
AS 11.56.807. Terroristic Threatening in the First
Degree.
(a) A person commits the crime of terroristic
threatening in the first degree if the person
knowingly sends or delivers a bacteriological,
biological, chemical, or radiological substance or an
imitation bacteriological, biological, chemical, or
radiological substance and, as a result,
(1) places a person in reasonable fear of
physical injury to any person;
(2) causes evacuation of a building, public
place or area, business premises, or mode of public
transportation; or
(3) causes serious public inconvenience.
(b) In this section,
(1) "bacteriological, biological, chemical,
or radiological substance" means a material that is
capable of causing serious physical injury;
(2) "imitation bacteriological, biological,
chemical, or radiological substance" means a material
that by its appearance would lead a reasonable person
to believe that it is capable of causing serious
physical injury.
(c) Terroristic threatening in the first degree
is a class B felony.
AS 11.56.810. Terroristic Threatening in the Second
Degree.
(a) A person commits the crime of terroristic
threatening in the second degree if the person
knowingly makes a false report that a circumstance
(1) dangerous to human life exists or is
about to exist and
(A) a person is placed in reasonable
fear of physical injury to any person;
(B) causes evacuation of a building,
public place or area, business premises, or mode of
public transportation;
(C) causes serious public
inconvenience; or
(D) the report claims that a
bacteriological, biological, chemical, or radiological
substance that is capable of causing serious physical
injury has been sent or is present in a building,
public place or area, business premises, or mode of
public transportation; or
(2) exists or is about to exist that is
dangerous to the proper or safe functioning of an oil
or gas pipeline or supporting facility, utility, or
transportation or cargo facility; in this paragraph,
"oil or gas pipeline and supporting facility" and
"utility" have the meanings given in AS 11.46.495 .
(b) Terrorist threatening in the second degree is
a class C felony.
[HB 75 was held over.]
HB 75-GUN VIOLENCE PROTECTIVE ORDERS
2:50:58 PM
CHAIR CLAMAN announced that the House Judiciary Standing
Committee would return to discussions regarding 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 noted that Representative LeDoux had requested that
a representative from the Department of Law (DOL) answer
questions related to someone posting on Facebook that they are
angry and wants to cause serious harm, and then goes to a school
and shoots some folks, wherein for purposes of this question,
there was no basis for a Title 47 hold. In that regard, he
asked Kaci Schroeder, DOL, to come forward and explain the
options the police or the state troopers would have, and what
crimes they might be able to arrest someone for in that setting.
2:51:55 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, responded that there
are several statutes the DOL can look at when dealing with
someone making threatening types of statements, as follows:
assault, wherein someone makes, by words or other conduct,
threatens someone and they are potentially in fear of an
assault, which is assault in the fourth degree; and harassment
in the second degree is probably most applicable to the above-
hypothetical circumstances offered wherein someone posts
something on line about perhaps shooting up a school or causing
other damage. Recently, she advised, the DOL prosecuted someone
for posting on another person's Facebook page, "You are going to
get assassinated." She explained that the person was prosecuted
under the harassment in the second-degree statute.
2:53:05 PM
REPRESENTATIVE LEDOUX clarified that she was discussing a more
generalized post that did not list the school, and instead
posted that they were mad at the world and were going to blow up
some people.
MS. SCHROEDER answered that the DOL would look at that type of
posting on a sliding scale type of analysis. The more
generalized the statement, the harder it would be for the DOL to
prosecute as a crime. The more specific it is and the more
imminent it reads to be, the better chance there is of
prosecuting it as a crime.
2:53:50 PM
REPRESENTATIVE LEDOUX surmised that under her scenario, the DOL
"would not do anything."
MS. SCHROEDER described Representative LeDoux scenario as "very
general," and that is not to say the DOL would not do anything.
The department may use that scenario as a reason to begin an
investigation into the person to determine whether the person
plans to take steps in furtherance of their statement. In the
event the discussion is about a student in a school situation,
the schools can also take steps, such as suspension and so
forth, that are short of criminal actions, she explained. A
wide range of steps can be taken, short of criminal action, when
someone is making threatening statements, she offered.
2:54:36 PM
REPRESENTATIVE LEDOUX stressed that her previous comment was not
meant as a criticism. Representative LeDoux explained that she
was trying to determine whether this bill was necessary, or
whether, under current law, when someone is angry and threatens
to "go and murder ten people," they can be arrested and their
weapons removed.
MS. SCHROEDER responded that based on that statement alone and
nothing else took place, it would be difficult to prosecute.
2:55:19 PM
REPRESENTATIVE EASTMAN noted that under this bill, weapons can
be seized, and asked what the process would be if the owner of
the weapons dies while those weapons are held by law
enforcement.
MS. SCHROEDER answered that she could not answer the question
because she has not thought through to the death of someone,
which gets into disposal of property.
CHAIR CLAMAN commented that it sounds like an estate matter.
2:56:21 PM
CHAIR CLAMAN remarked that he became familiar with the
terroristic threatening statutes in the early 1990s while
involved in a criminal case wherein someone was charged for the
direct threat of words or conduct. Subsequent to his citing the
terroristic threatening statutes to the committee today and a
conversation with Ms. Schroeder regarding the current version of
the terroristic threatening statutes, he said that he realized
the defendant, while speaking to another person on the telephone
and clicking their pen next to the telephone to replicate a gun
being opened and closed, would not be charged today under the
terroristic threatening statutes.
[HB 75 was held over.]