Legislature(2017 - 2018)GRUENBERG 120
04/06/2018 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB351 | |
| HJR38 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 351 | TELECONFERENCED | |
| + | HJR 38 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
HB 75-GUN VIOLENCE PROTECTIVE ORDERS
7:47:22 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."
[Before the committee was the proposed committee substitute for
HB 75, labeled 30-LS0304\R, Martin, 3/26/18, and Version R was
adopted as the working document on 3/26/18.]
CHAIR CLAMAN passed the gavel to Vice Chair Kreiss-Tomkins.
7:48:10 PM
REPRESENTATIVE CLAMAN moved to adopt Amendment 1, labeled 30-
LS0304\R.1, Martin, 3/27/18, which read as follows:
Page 10, lines 16 - 18:
Delete all material and insert:
"* Sec. 9. AS 22.35.030 is amended to read:
Sec. 22.35.030. Publication of Records [RECORDS
CONCERNING CRIMINAL CASES RESULTING IN ACQUITTAL OR
DISMISSAL]. The Alaska Court System may not publish a
court record of a
(1) criminal case on a publicly available
website if 60 days have elapsed from the date of
acquittal or dismissal and
(A) [(1)] the defendant was acquitted of
all charges filed in the case;
(B) [(2)] all criminal charges against the
defendant in the case have been dismissed and were not
dismissed as part of a plea agreement in another
criminal case under Rule 11, Alaska Rules of Criminal
Procedure;
(C) [(3)] the defendant was acquitted of
some of the criminal charges in the case and the
remaining charges were dismissed; or
(D) [(4)] all criminal charges against the
defendant in the case have been dismissed after a
suspended entry of judgment under AS 12.55.078; or
(2) gun violence protective order under
AS 18.65.815 or 18.65.820, unless the court grants a
petition under AS 18.65.815; if a court grants the
petition, the Alaska Court System shall publish the
court record of the proceeding within 10 days after
the date the protective order is issued."
REPRESENTATIVE STUTES objected for purposes of discussion.
7:48:12 PM
REPRESENTATIVE REINBOLD declared a point of order. She said
that she wants her amendments to be timely and asked when
amendments 1-7 were submitted.
VICE CHAIR KREISS-TOMKINS ruled that Representative Reinbold
could speak with Chair Claman after the meeting.
7:48:47 PM
CHAIR CLAMAN explained that Amendment 1 is a response to a
clarification brought forward by the Alaska Court System (ACS)
to be certain the language read that a publication on CourtView
would only occur if there was a "contested order," which meant
that the individual had a right to be heard. In the event an ex
parte order hearing took place and a gun violence protective
order was issued, it would not be listed on CourtView [because
the respondent was not present at that hearing.] The only time
a CourtView record of this proceeding would occur would be when
the individual had a chance to be heard and the court had made a
ruling.
7:49:33 PM
REPRESENTATIVE EASTMAN asked what language is deleted.
REPRESENTATIVE KOPP asked that Nancy Meade come forward to
respond to committee questions.
7:50:01 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, advised that a
Version R sentence read that the Alaska court System (ACS) may
not publish a court record of a protective order on a publicly
available website. She related that she was seeking clarity in
order for the ACS to perform exactly what the committee desired.
Therefore, Amendment 1 clarifies that what the ACS will do
(indisc.) only if (indisc.) when the long-term protective order
is issued. In the event there is a petition for a short-term
order, ACS would handle the case in the normal course but
nothing would be posted to CourtView because the proceeding was
ex parte. She pointed out that until and if, a long-term order
was issued, which only occurs after the respondent has had a
chance to appear in court and receive full due process.
Amendment 1 clarifies that that is the process the ACS would
perform, which she believed was the intent of the "less clear"
wording in the original version of the bill.
7:51:24 PM
REPRESENTATIVE EASTMAN referred to Amendment 1, page 1, line 22,
which read: "proceeding within 10 days after the date the
protective order is issued."
REPRESENTATIVE EASTMAN asked how the 10-day language compares or
contrasts to "other things" posted on CourtView.
MS. MEADE answered that this language is a bit different
because, typically, (indisc.) CourtView with few exceptions.
The exceptions, she explained, are located in the existing
language of AS 22.35.030, above the newly inserted wording at
the bottom of page 1 of the amendment. She explained that ACS
does remove criminal cases, but the default is always to
(indisc.) if they are public records, 60 days after an acquittal
or dismissal of all charges if that is what occurs. Typically,
she said, protective orders are posted on CourtView, even the ex
parte, and it was the intent of the sponsor and the committee
that these could implicate some sensitive matters. At the ex
parte stage, in particular, it may not be fully appropriate to
publicize that this was occurring without full due process for
the respondent. After the full due process, she pointed out,
the ACS would post it on the website, and the 10-days simply
gives ACS a chance to get the record together to post.
7:52:46 PM
REPRESENTATIVE EASTMAN asked that when the ACS deals with a
domestic violence protective order, whether the deadline is 10-
days or whether it carries a different deadline.
MS. MEADE responded that the ACS posts everything about domestic
violence protective orders the minute they are filed. Amendment
1 reflects what she believed was the committee's intent to be
more protective in these protective order proceedings because
they do implicate a bit more of a privacy interest of the
respondent. Therefore, the ACS would delay and perhaps never
post these proceedings unless and until that whole due process
hearing had taken place.
7:53:39 PM
REPRESENTATIVE KOPP asked the standard the court uses to make
the finding on the 6-month protective order.
MS. MEADE answered that that is what she had been referring to
as the longer-term order, covered under HB 75, Section 7, AS
18.65.815(a). The long-term protective order proceeding is not
ex parte; the respondent has notice of the hearing and can be
present. She then referred to page 4, lines 13-15, subsection
(b) which read as follows:
If the court finds by clear and convincing evidence
that the respondent is a dangerous individual,
regardless of whether the respondent appears at the
hearing, the court may order relief available under
(c) of this section.
7:54:26 PM
REPRESENTATIVE KOPP surmised that with this amendment it is only
after the long-term protective order is issued, and at that
point the protective order would be available for publication.
MS. MEADE answered that 10-days after the issuance of that
protective order, it would be posted within those 10-days.
7:54:54 PM
REPRESENTATIVE STUTES withdrew her objection to Amendment 1.
REPRESENTATIVE EASTMAN objected to the adoption of Amendment 1.
7:55:17 PM
REPRESENTATIVE LEDOUX surmised that this still allows this to go
up on CourtView, there is not a (indisc.).
MS. MEADE reiterated that, if and when, the six-month protective
order is granted by the court, it would then be posted on
CourtView. She explained that up until that time, Amendment 1
would advise the court to not post the protective order, which
is an exception to the normal rule of generally posting
everything.
REPRESENTATIVE LEDOUX commented that it would be appropriate to
post a long-term protective order on CourtView if the protective
order is because Person A stated they would blow up Person B.
Except, possibly Person A is severely depressed and is thinking
about killing themselves. That posting process strikes her as
wrong and she said she did not know whether there was a manner
in which to "separate things."
MS. MEADE responded that there is truly no way of separating
them from the case; however, the information posted on CourtView
is not the content of the order or the petition listing the
allegations, or any facts about the case. CourtView is not a
screen shot of anything filed in the case, she explained, it is
a docket sheet and contains the date of the petition for the
long-term gun violence protective order, and the date order
issued. It would not disclose any of the facts in which
Representative LeDoux was concerned, she explained.
7:57:43 PM
REPRESENTATIVE LEDOUX agreed, and she argued that anyone who is
curious enough to look on CourtView might find someone with a
gun violence protective order and lead the person to the
courthouse [to review the court file]. Whereas, she pointed
out, if it was not posted on CourtView, the person may not have
been led to the courthouse.
MS. MEADE replied that that would be a policy call for the
legislature to advise the court of the process it desired. The
default for the Alaska Court System (ACS) is that everything is
published unless there is a specific guidance not to post
something. For example, divorce cases can oftentimes contain
"interesting or even salacious" information and people can
always come to the courthouse and review the record. The ACS
views the records as public records, which is the price of a
democracy wherein people are allowed to review records and hold
the court accountable by looking, and so forth. She said she
recognizes there is another side to this issue.
7:58:48 PM
REPRESENTATIVE LEDOUX acknowledged Ms. Meade's explanation,
except the concern is that the committee is currently struggling
with whether to allow the gun violence protective order in the
first place. She stated that she wants to make certain that a
person who is thinking of causing harm to self, and not to
others, is not posted, and she asked how to reach that goal.
MS. MEADE responded that that would be "extremely difficult and
problematic for the court," as it has no precedence for deciding
what to post or not post depending upon the actual facts of the
case. The problem, she explained, is there could be a
discrepancy depending upon someone's view of the case, and the
court system does not prefer the possible direction that, "if it
would be X, then posted it, and if it wouldn't be, don't post
it." In other words, she offered, the court system can perform
the black and white line of full acquittal cases being taken off
CourtView. Except, if the posting requires discretion and
analyzing the facts of the case, that becomes a problem.
8:00:38 PM
REPRESENTATIVE LEDOUX commented that the legislature could also
remove suicides from CourtView as a policy call.
MS. MEADE answered that the legislature could make that policy
call.
8:00:54 PM
REPRESENTATIVE KOPP said that he had been considering the number
of tragic suicides he has worked, and how difficult it is for
families to accept "suicide" on the Death Certificate. Suicide,
he described, is an awful scourge in Alaska. He offered that
when considering the merits of this discussion, if the risk, as
Representative LeDoux pointed out, is strictly toward oneself,
and a loved one wants to remove a temptation and possibly bide
more time to find help for the individual, it all comes down to
the definition of "dangerous individual" and under what
circumstance a case would be posted on CourtView. He referred
to Amendment 1, page 1, lines 20-22, and suggested inserting "in
cases of immediate risk of injury to others," between "the
petition" and "the Alaska Court System", thereby "making it
clear that if the only sense of harm, and it can be immediate
where the court would issue it, but in those cases for possible
mental health reasons." He opined that the mental health
professional treatment community would probably be supportive of
not having those cases posted because it might help people to
not be singled out for what may be a temporary traumatic event.
He commented that he is empathic with Representative LeDoux's
position on this issue.
8:03:12 PM
CHAIR CLAMAN asked Ms. Meade whether Title 47 involuntary
commitments are posted on CourtView currently.
MS. MEADE responded that they are not posted.
8:03:29 PM
REPRESENTATIVE EASTMAN offered a scenario of an individual who
was known to be depressed and suicidal at certain times of the
year due to losing a loved one at that time. He asked that if
it is known that someone will be "in a bad way" for a specific
period of time, how would the court respond to that type of
situation. He asked whether that scenario would be under AS
18.65.815 or 18.65.820, and if it is under AS 18.65.820 and the
person is known to be dangerous "but not yet," whether the court
would entertain an AS 18.65.820.820 in that type of situation,
or would it determine that it must go the AS 18.65.815 route.
MS. MEADE pointed out that the person files whatever protective
order they desire, they can check a box and ask for an ex parte,
they can solely ask for the six-month long-term protective
order, or ask for both protective orders. At least in the
domestic violence protective order situation, it is not uncommon
for the court to advise that they would not grant the ex parte
because "I don't think you need it within the next 20 days;
however, I'll hold it over for the hearing on the long-term and
in two weeks, or 19 days. We'll have the long-term hearing; the
respondent will be there and it will be a full due process
hearing and we can work out whether you need it for the next six
months." She reiterated her previous testimony wherein ex parte
hearings are looked at with the knowledge that being ex parte
and one party is not present, the judicial officer must think of
all of the consequences and ramifications of granting a
protective order in the absence of one of the parties. In the
event someone comes in in October requesting the short-term
protective order because the person may have a problem in
December, she imagined the court would determine that the ex
parte proceeding was not necessary and would set a long-term
proceeding, she reiterated.
8:06:08 PM
REPRESENTATIVE EASTMAN offered another scenario regarding AS
18.65.815 where it was known that during the week of Christmas
it would be "very bad" and possibly this individual crosses the
threshold and becomes a dangerous individual. He asked the
discretion the court holds in that type of situation, under this
bill, if the court wants to make it only for a particular week,
and whether the court has the discretion to set solely for that
period of time.
MS. MEADE answered that this bill reads that the protective
order expires six months after its issuance unless dismissed
earlier by the court at the request of the peace officer or the
respondent via a hearing. In that sort of situation, she said
that she feels certain a judicial officer would say that they
have concerns about this week, and to look at this order again
on January 6th to determine whether it was necessary that the
protective order stay in effect.
8:07:16 PM
REPRESENTATIVE EASTMAN surmised that if the court decided at the
end of Christmas week that there was not a need for any
additional time, but that person did receive an AS 18.65.815 and
it lasted 7 days. He said he assumed from this amendment that
that person's name would be posted on CourtView.
MS. MEADE agreed, and she pointed out that Amendment 1 tells the
court system to post it once the order is issued, that would be
a long-term order and it would be posted.
8:07:54 PM
REPRESENTATIVE EASTMAN maintained his objection to Amendment 1.
8:08:00 PM
REPRESENTATIVE LEDOUX offered that she was considering a
conceptual amendment to Amendment 1 in line with the language
suggested by Representative Kopp.
REPRESENTATIVE KOPP referred to Amendment 1, page 1, line 21,
and recommended adding one more situation where the court may
not publish a court record," Sec. 22.35.030(2), which would read
as follows:
The Alaska Court System may not publish a court record
of a gun violence protective order under AS 18.65.815
or 18.65.820 unless the court grants a petition under
AS 18.65.815 or a respondent who is determined to be
dangerous to others; if a court grants the petition,
the Alaska Court System shall publish the court record
of the proceeding within 10 days after the date the
protective order is issue.
REPRESENTATIVE KOPP explained that in the above manner, it could
not be misread that the language is not talking about harm to
self. The reason for the language "dangerous to others" is due
to the definition for "dangerous individual," and he paraphrased
as follows:
An individual is considered dangerous if the
individual represents an immediate risk of personal
injury to self or others.
REPRESENTATIVE KOPP opined that in those few words it would
direct the court that if the gun violence protective order was
issued due to a self-harm threat, it would not be posted on
CourtView.
8:09:43 PM
VICE CHAIR KREISS-TOMKINS asked Chair Claman whether he
preferred to continue down the conceptual amendment path or to
hold Amendment 1 in order to redraft the amendment.
CHAIR CLAMAN asked Ms. Meade whether an amendment such as is
being proposed is even manageable for the Alaska Court System
(ACS) because it sounded like ACS is not accustomed to digging
into the details of any particular order prior to deciding what
is and is not posted on CourtView.
MS. MEADE answered that Chair Claman was correct because the
decision of posting on CourtView is determined by an IS clerical
person who simply looks at a case number and knows that it is
posted 10 days later. The proposed conceptual amendment would
cause someone to have to open the file and that is not something
the court system could do, and she did not know whether it would
take money, and how many of these cases there would be, but it
is not something the court system has ever performed previously
and it would cause a bit of a problem.
8:10:52 PM
REPRESENTATIVE STUTES surmised that the proposed conceptual
amendment would require someone reading almost every case, and
it could bring on a huge fiscal note.
MS. MEADE responded that she was afraid that may be the case and
she would have to seriously consider how that might be
accomplished.
8:11:35 PM
REPRESENTATIVE STUTES surmised that basically the cases are
posted through Anchorage and the clerks have no way of telling,
by the information they receive, how to perform the posting.
MS. MEADE answered that Representative Stutes was correct, there
could be some type of solution such as indicating that an AS
18.65.815 protective order was for suicide. To possibly add "a
new thing" so the administrative clerks know that only if it is
an AS 18.65.815 is it posted. She suggested that the suicide
cases are separate -- a whole separate proceeding from "the
danger to other ones." In the event it was depicted in that
manner, she said that she could see the administrative clerks
having just the check box for which protective orders are
posted, i.e., AS 18.65.815 protective orders are posted and AS
18.65.17 are never posted, or something along that manner. She
stressed that she has only given thought to this issue during
these last few minutes.
8:12:26 PM
REPRESENTATIVE LEDOUX agreed, and she suggested depicting
directly on the form "danger to self is not posted, and danger
to others is posted."
MS. MEADE expressed that that is indeed on the form; however,
there is not a picture or anything on Court View.
REPRESENTATIVE LEDOUX expressed that she understands that fact,
but when the administrative clerk is deciding what to post on
CourtView, what is so difficult about looking at this form that
could be created that read "danger to self is not posted" in
large bold letters, and "danger to others is posted."
MS. MEADE related that she did not want to sound like she was
putting up roadblocks because she truly was not, the risk of
problems with that suggestion is that there are 42 different
court locations and hundreds of people inputting information on
CourtView. The court system wants to keep it mechanized to
minimize the potential for errors as the court system does not
have an audit function in CourtView and if something can be
written into a computer script and make it work, then the court
system has confidence in what is being posted. In the event the
Barrow administrative clerk, for instance, must go in and
determine which box to check and somehow get that factual matter
as opposed to just a statute directed to the IS department in
Anchorage who takes information off of CourtView, and so forth,
there could be problems.
8:14:16 PM
REPRESENTATIVE KOPP referred to domestic violence protective
orders and offered the following:
You know how it's just a check the box for the judges,
and they make their findings, and there's only like
one little paragraph where there is extra stuff they -
- they write in there as far as, you'll also take this
and this or help the victim with that.
MS. MEADE acknowledged that she is familiar with that form.
REPRESENTATIVE KOPP noted that there are domestic violence
protective orders forms, and suggested making a form for a gun
violence protective order and the findings would be "first check
boxes, immediate risk of serious injury to self, immediate risk
of serious injury to others." It would be user friendly and
readily ascertainable for a court to know whether or not that
should be posted on CourtView, he offered.
MS. MEADE answered that the court system absolutely intends to
make such a form should this bill pass, and it will create forms
that are similar and on the same simple reading level as the
domestic violence protective orders because those pieces of
paper are taken by law enforcement and served on the respondent.
The issue, she explained, is how that fact is input into
CourtView because it does not have fields for typing facts, it
would require a modification to CourtView because it is not
similar to an Excel spreadsheet where a person can type in
different factors or different considerations. CourtView does
have a field for a statute and the court system would be able to
make AS 18.65.820 orders issued. Again, she offered, if there
was an AS 18.65.817 protective order that was different, a
danger to self order or a suicide danger order then it could be
done. However, she related, it would take a rewriting of the
bill, because with one order covering two different possible
scenarios, the CourtView database cannot distinguish between the
two scenarios.
8:16:37 PM
CHAIR CLAMAN referred to CSHB 75, Version R, [Sec. 9, AS
22.35.030(b)] page 10, lines 16-18, which read as follows:
(b) The Alaska Court System may not publish a
court record of a protective order issued under AS
18.65.820 on a publicly available website.
CHAIR CLAMAN explained that this amendment came about due to the
section which read that the court may not publish under AS
18.65.820 ex parte order. The court system approached him and
raised questions because it believed this particular language
was ambiguous and required clarity. Therefore, the question
this amendment raises is not the grand issues of CourtView. He
reminded the committee that the issues of CourtView have
periodically been debated in the House Judiciary Standing
Committee and each time the committee travels down that rabbit
hole, it discovers that CourtView is complicated, many people
are unhappy with some of the information posted, and CourtView
does not provide the depth that some people would like to
believe. The more the committee tries to direct the clerks in
how to post in CourtView, the committee is actually inviting
errors and inviting people to be incredibly unhappy because an
administrative clerk in the courthouse made a mistake. The only
question before the committee, he stressed, is whether the
committee prefers Sec. 9, AS 22.35.030(b) giving the court
direction, or would the committee rather have the increased
clarity that comes with Amendment 1. In the event the committee
wants to spend more time on the CourtView issue, this amendment
should be not be finished, but if the committee wants to decide
which of the two wordings to use, it should vote now and move on
to the next amendment.
8:18:19 PM
REPRESENTATIVE LEDOUX pointed out that this issue is important
and she is not willing to pass a bill that will post the names
of people with a "suicide" protective order.
VICE CHAIR KREISS-TOMKINS suggested that there probably are not
the votes to pursue Amendment 1 as written, and he set Amendment
1 aside.
CHAIR CLAMAN commented that if there are not the votes to then
vote Amendment 1 down.
VICE CHAIR KREISS-TOMKINS ruled that Amendment 1 would be set
aside and the committee would proceed to Amendment 2.
8:19:22 PM
CHAIR CLAMAN moved to adopt Amendment 2, labeled 30-LS304\R.15,
Martin, 3/28/18, which read as follows:
Page 6, line 19, following "(a)":
Insert "When a court issues an ex parte gun
violence protective order under AS 18.65.820, if the
respondent's firearms have not already been seized, a
peace officer may seize any firearms in the
possession, custody, or control of the respondent when
the peace officer delivers the ex parte protective
order to the respondent.
(b)"
Reletter the following subsections accordingly.
Page 6, line 20:
Delete "AS 18.65.815 - 18.65.825"
Insert "AS 18.65.815 or 18.65.825"
Page 6, lines 24 - 27:
Delete "If the respondent's firearms have not
already been seized, a peace officer may seize any
firearms in the possession, custody, or control of the
respondent when the peace officer delivers an ex parte
protective order issued under AS 18.65.820 to the
respondent."
VICE CHAIR KREISS-TOMKINS objected for purposes of discussion.
8:19:29 PM
CHAIR CLAMAN explained that Amendment 2 is in response to
concerns raised by the Alaska Department of Public Safety,
Alaska State Troopers, and the distinction between an officer
serving an ex parte order to seize a weapon, the respondent
refusing to turn over their firearms, and the 48 hours language.
The Alaska State Troopers were concerned that the language may
actually lead to peace officers thinking they had to wait 48-
hours after serving notice that the firearm would be seized, and
then they had to return at a later time. The Department of
Public Safety advised that this language would create
significant increased risk to peace officers and it asked that
the language be made clear that if peace officers serve an ex
parte order and the respondent refuses to turn over their
firearms, that their response would be in the same manner as
when serving a domestic violence protective order. In the event
the respondent refused to leave the house, they could be
arrested for failure to follow the domestic violence protective
order. In the same sense here, he offered, if the respondent
refused to turn over their firearms, that refusal would be a
basis for arresting that respondent. Amendment 2 is focused on
law enforcement's safety and it does not change the intent of
the bill language, rather it makes it abundantly clear that the
officer has authority to take the firearm and for the respondent
to comply with the provisions of the ex parte order.
8:21:06 PM
REPRESENTATIVE LEDOUX asked that when the ex parte protective
order is issued, whether the court would set forth exactly which
guns are to be seized, or would the peace officer search the
house for guns. Otherwise, she further asked, how would law
enforcement know if someone had five guns and only turned over
four guns.
REPRESENTATIVE KOPP explained that Amendment 2 deals solely with
the long-term protective order wherein the person has been given
a 10-day notice of the hearing, to come to court and present
their case, and the judge makes a ruling on the clear and
convincing evidence standard, which is when the 48-hours comes
into play. Obviously, he noted, there was not the extreme
urgency in these cases because no one was arrested and brought
to court. The reality is that most of these cases will be ex
parte orders and the case will not start with a six-month order.
He explained that the court starts with an ex parte proceeding
and it makes a finding based on probable cause that a person is
dangerous to self or others by possessing a firearm. The
Department of Public Safety's concern is that, in those ex parte
circumstances, the peace officers do not want to have to return
48-hours later because if the situation is truly an emergency,
they may return to a very high-risk situation in order to make
certain the firearms were sold, given to an authorized third
party, or whatever provisions were listed in the order. It
becomes riskier for the public and law enforcement when law
enforcement must return a second time when the person had not
complied with the order and is waiting for law enforcement's
return, he pointed out. The Department of Public Safety, when
serving an ex parte order, prefers to take the firearms at the
time of service to prevent a second trip, and during the service
of the order to give notice to the respondent that their hearing
is in 10 days and the judge will decide whether law enforcement
is to return the guns right back to the respondent.
8:24:33 PM
CHAIR CLAMAN, in response to Representative LeDoux's question as
to what guns must be surrendered, referred to Version R, Section
7, Sec. 18.65.830(a), page 4, lines 2-5, which read as follows:
The petition shall describe the number, types, and
locations of any firearms or ammunition the peace
officer believes are owned or possessed by the
respondent and the basis for the petition.
CHAIR CLAMAN then referred to Version R, Section 7, Sec.
18.65.815(a)] page 6, lines 19-24, which read as follows:
the court shall order the respondent to surrender to
the appropriate law enforcement agency, to sell to a
firearms dealer, or to deliver to a court-approved
third party all firearms and ammunition that the
respondent possesses
CHAIR CLAMAN explained that the order would require a surrender
of all firearms, and that the above language is not the issue
Amendment 2 addresses.
8:25:30 PM
REPRESENTATIVE LEDOUX requested confirmation that ex parte
orders can only be obtained by a peace officer.
CHAIR CLAMAN responded that both ex parte orders and contested
orders can only be obtained by law enforcement, private
individuals cannot apply.
8:25:54 PM
REPRESENTATIVE LEDOUX offered a scenario of someone posting
threatening comments and "nutsy things" on Facebook and the
person appears dangerous. Unless the person has itemized his
firearm inventory on Facebook, how would law enforcement know
which firearms are in the respondent's possession, she asked.
CHAIR CLAMAN answered that to some extent, law enforcement may
not know and it may be that law enforcement uses its best
efforts while serving an ex parte order. They may not actually
collect every firearm in the person's possession, as it is not
possible to legislate people to be honest. Amendment 2 is
specifically making it clear under Sec. 18.65.830, that the
procedures that would occur when law enforcement serves an ex
parte order and what happens if the person does not comply with
the officer's instructions.
8:27:42 PM
REPRESENTATIVE KOPP explained that as to the gun violence
protective orders if the firearms had not already been seized,
based on this ex parte finding, law enforcement would have a
search warrant. He referred to [CSHB 75, Sec. 18.65.820(b)]
page 5, lines 18-23, which read as follows:
(b) If the peace officers has not seized the
firearms of the respondent before filing an ex parte
gun violence protective order under this section, the
peace officer shall also request a search warrant to
search for and seize any firearms in the possession of
the respondent. The court shall grant the request for
a search warrant if the judicial officer determines
that there is probable cause to believe that the
respondent is a dangerous individual and in possession
of a firearm.
REPRESENTATIVE KOPP pointed out that law enforcement does not
want to go into a house without a search warrant, and it must
convince the court that it actually believes there are firearms
in the house and a search warrant is necessary. Also, he said,
prior to receiving the search warrant, law enforcement must
convince the court that less restrictive alternatives had been
tried and were ineffective, on page 5, lines 4-5.
8:29:29 PM
REPRESENTATIVE EASTMAN noted that it is the responsibility of
law enforcement to confiscate firearms, "the court shall grant
the request for a search warrant" and asked whether there are
any sidebars on that language. He offered that if law
enforcement obtains this protective order and requests a search
warrant, normally it would be up to the judge to determine
whether the request was too vague and that the person's 1,000
acres could not be search, for example. Yet, this language read
that whatever the peace officer writes down, basically the court
is supposed to approve the search warrant.
CHAIR CLAMAN disagreed that the court is simply supposed to
approve the search warrant request, he reiterated that the court
must make specific findings that there is probable cause to
believe the person is a dangerous individual and they possess
firearms.
CHAIR CLAMAN pointed out to Vice Chair Kreiss-Tomkins that these
functions are far beyond the scope of Amendment 2 because the
amendment is limited to creating clarity about what happens when
an officer serves a protective order. He reminded the committee
that the substance of the orders had been extensively discussed
in prior hearings and these questions do not pertain to
Amendment 2.
VICE CHAIR KREISS-TOMKINS ruled that Chair Claman's point was
well taken.
8:31:21 PM
REPRESENTATIVE EASTMAN surmised that if the firearms had not
already been confiscated, they could be seized. Except, he
said, that appears to be different than law enforcement
proactively seizing firearms when someone is wearing a firearm
on their hip, for instance. In the event the firearm is not
visible, and law enforcement serves the protective order on the
respondent, who advises law enforcement that he cannot even
remember owning any firearms and does not surrender any weapons,
what is the responsibility of law enforcement at that point
under Amendment 2.
CHAIR CLAMAN directed that Representative Eastman "is actually
pretty far afield from the topic of this particular amendment."
He referred to Sec. 18.65.830(a), page 6, lines 24-26, which
read as follows:
If the respondent's firearms have not already been
seized, a peace officer may seize any firearms in the
possession, custody, or control of the respondent when
the peace officer delivers an ex parte protective
order issued under AS 18.65.820 to the respondent.
CHAIR CLAMAN reiterated that subsection (b) talks about "within
48 hours" and the law enforcement agencies believed this
language was confusing and requested clarity. Therefore, in
Amendment 2, the first five lines are basically creating new
subsection (a) which is based on the language in that last
sentence of the existing subsection (a) in the bill. It
clarifies that if the firearms have not yet been seized, law
enforcement may seize any firearms in the possession, custody,
or control of the respondent when the ex parte protective order
is served. He pointed out that it gives the peace officer a
basis within which to advise the respondent to turn over their
firearms, and if the respondent refuses, that would be a basis
upon which to arrest the respondent. The remainder of "what was
now subsection (a), and the first sentence will become
subsection (b), and that becomes the circumstance under which
they serve the order after a contested hearing, there is not the
situation of officer safety involved," he explained. He added
that this is a specific situation where a peace officer is
serving an order consistent with what Representative Kopp
described on subsection (b), page 5, lines 18-23, [previously
typed], peace officers will have a search warrant to seize any
firearms in the possession of the respondent. This, he
reiterated, is to clarify that the failure to comply with that
order gives the peace officer a basis within which to arrest
someone for non-compliance, and if it is not an ex parte
situation then more time is allowed to surrender the firearms.
8:35:13 PM
REPRESENTATIVE KOPP referred to Amendment 2, page 1, lines 3-5,
which read as follows:
a peace officer may seize any firearms in the
possession, custody, or control of the respondent when
the peace officer delivers the ex parte protective
order to the respondent.
REPRESENTATIVE KOPP pointed out that "may seize" is in the
permissive form rather than "shall seize," and the provision
makes clear that there is legal authority, should the context of
that service indicate that "seizure of firearms should occur"
based upon the service of an ex parte protective order.
8:36:34 PM
REPRESENTATIVE EASTMAN referred to [CSHB 75, Sec. 18.65.830(a),
page 6,] line 24, and commented that the 48-hour language is
moot because when a peace officer serves notice on a person,
they have 48 hours "to do what they're going to do. But we're
going to bring a search warrant and if they don't turn over
their guns, we're going to arrest that person."
CHAIR CLAMAN referred to Amendment 2, page 1, lines 10-12, and
pointed out that the section applying to 48 hours is under AS
18.65.815 the contested protective orders, and under AS
18.65.825 are modification of the order. He explained that the
section with the 48 hours does not apply to the ex parte orders,
which as amended, would only apply to subsection (a).
Subsection (a) of this section would relate to ex parte orders
and subsection (b) would relate to the contested orders and the
modification of the orders in the 48 hours, and what would
become subsection (c) would only relate to the orders issued
under the contested situation or modifications thereof.
8:38:07 PM
REPRESENTATIVE KREISS-TOMKINS withdrew his objection to the
motion to adopt Amendment 2.
REPRESENTATIVE REINBOLD objected to the motion to adopt
Amendment 2.
8:38:11 PM
REPRESENTATIVE REINBOLD referred to Amendment 2, [page 1, lines
2-5], and she paraphrased as follows:
When a court issues an ex parte, so that's
without due process for the people listening, gun
violence protective order under AS 18.65.820 if the
respondent's firearms have not already been seized a
peace officer may seize any firearm in the possession,
custody, or control of the respondent when the peace
officer delivers the ex parte protective order to the
respondent.
REPRESENTATIVE REINBOLD paraphrased the language "if it has not
already" and asked when the opportunity to confiscate happened
in the first place because it sounds as though there are two
different opportunities to confiscate.
CHAIR CLAMAN commented that he thought the committee was
debating Amendment 2, and referred to [CSHB 75, Sec. 3] page 2,
lines 17-21, which provides that when a peace officer faces a
dangerous individual and believes there is an immediate danger
that requires immediate action, they have authority both under
this statute and under existing common law, to seize the weapons
and prevent a dangerous situation from becoming a problem where
someone is severely injured or killed. He explained that the
bill provides that when an officer performs a warrantless
seizure such as this, then the officer has a duty within 72
hours to actually file the paperwork to explain the reasons for
the warrantless seizure, which is a way of providing more for an
individual who has their firearms than they would have today
under existing authority to seize weapons in a variety of
circumstances.
8:40:11 PM
REPRESENTATIVE REINBOLD argued that it read "seize any firearm
in the possession, custody, or control" and asked whether it
could mean a parent's house, at work, a cabin, a house in the
Lower-48. She described the language as broad because if they
are already seizing firearms without due process under an ex
parte order, she paraphrased "now it says anything in their
possession, custody, or control" whether it allows a peace
officer to go anyplace this person owns.
CHAIR CLAMAN reiterated to Vice Chair Kreiss-Tomkins that these
questions are well beyond the scope of Amendment 2. (Indisc. -
Representative Reinbold speaking over Chair Claman) referring to
subsection (b) on page 5, [lines 18-23] regarding the search
warrant the peace officer would offer for the search and seizure
of any firearms in the possession of the respondent. He
reiterated that it is well established under search and seizure
law that the warrant would have to identify the places to be
searched and the items to be seized, and it would not give any
peace officer broad authority to wander the streets and look for
anything anywhere because they would actually have a very
specific place. A warrant that didn't provide that degree of
specification would be subject to a significant court challenge
and he could not imagine any judge in this state or any other
state that would issue such a warrant. As to out-of-state
properties, the jurisdiction of this state court does not extend
to other states, he further explained.
8:41:49 PM
REPRESENTATIVE LEDOUX surmised that if the peace officer
recognizes that there is a dangerous individual, that peace
officer can, without the judge giving the peace officer to do
so, seize the firearm.
CHAIR CLAMAN noted that Representative LeDoux was correct as it
has previously been discussed, and that action can take place
under a variety of circumstances.
REPRESENTATIVE LEDOUX surmised that the peace officer goes to
the court after seizing the firearm.
CHAIR CLAMAN explained that the peace officer goes to the court
afterwards, but in terms of Amendment 2, it is regarding the
situation when the firearms have not already been seized. There
is a gun violence protective order and this gives the peace
officer the authority to seize the firearms if they had not
already been seized.
8:43:04 PM
REPRESENTATIVE LEDOUX asked how Amendment 2 changes the language
that is "on page 6 already?"
CHAIR CLAMAN explained that the difference between Amendment 2
and the language on page 6 is not changing the substance, it is
clarifying the language. He reiterated that the Department of
Public Safety (DPS) was concerned that the way it was drafted on
page 6, and the placement of the second sentence of subsection
(a) on page 6 in the same paragraph "as the portions in sub --
the first para -- sentence of subsection (a)."
CHAIR CLAMAN referred Representative LeDoux to page 6 [lines 24-
27], and the second sentence, which read as follows:
If the respondent's firearms have not already been
seized, a peace officer may seize any firearms in the
possession, custody, or control of the respondent when
the peace officer delivers an ex parte protective
order issued under AS 18.65.820 to the respondent.
CHAIR CLAMAN explained that this is the ex parte provision, and
when comparing that language to what will become subsection (a)
on Amendment 2, that becomes subsection (a) and that relates to
what happens when peace officers serve an ex parte order. The
DPS indicated that by combining the first sentence of subsection
(a) on page 6, which merged in together AS 18.65.815, 18.65.820,
and 18.65.825 in one sentence, DPS believed that the combination
was confusing and raised issues as to whether or not they could
immediately seize the firearms. At the request of DPS,
Amendment 2 is simply intended to clarify the language that is
already in CSHB 75, page 6, so law enforcement is not confused,
and the person reading the statute after it is amended will
understand the sequence, he reiterated, and this is changing
nothing of the substance of the bill.
8:44:49 PM
REPRESENTATIVE LEDOUX suggested that law enforcement is not
confused, but she is confused.
8:45:10 PM
VICE CHAIR KREISS-TOMKINS summarized that for purposes of
clarity, Amendment 2 takes the second sentence [CSHB 75, page 6,
lines 24-27] of the current section AS 18.65.830(a) and breaks
it off as its own subsection.
CHAIR CLAMAN answered in the affirmative.
8:45:37 PM
REPRESENTATIVE KOPP clarified that this is a complicated legal
process for lay legislators who do not normally deal with
domestic violence protective orders and how they are tiered, and
questions should be expected. In response to Representative
Reinbold's question about warrantless seizure of firearms, he
offered a classic example as follows:
You get a call 11:00, 12:00 at night, 1:00 in the
morning from a concerned family member that says, 'My
adult son is very depressed, hasn't come out of his
room, he's talking about killing himself. Can you
come help talk to him?' This happens regularly,
situations like this. So, you show up at the house
and you knock on the door and, you know, 'Police. I'm
here cause your mom called or your dad called.' And,
they may not answer the door so you're talking through
a closed door hoping they are not armed, and hoping
they are not mad that you're there. And, you get a
dialogue going, 'Are you going to hurt yourself?'
'Well, I'm think about it.' 'Do you have a gun?'
'Yes.' And, after a dialogue, you -- the goal is to
talk them not into hurting themselves or you, and that
you talk him into turning over the gun that night
until they feel better the next day. And, that would
be a warrantless seizure. And, that's a classic
example of how law enforcement goes home. Right now,
there is no process for that person to get the gun
back unless -- the officer is required to make a
report of it right away because he is dealing with a
mental health situation and that would have to be
logged into evidence and all that. But, right now
there is no process other than maybe the D.A. or the
police chief saying the person is probably fine to get
their gun back.
8:47:29 PM
REPRESENTATIVE KOPP described that this bill actually reads that
within 72 hours the peace officer must have prepared their
affidavit to the court, and the court has to rule on whether the
peace officer was correct to remove the firearm or to give it
back. Currently, while it does happen that law enforcement will
take guns for safekeeping, under those circumstances where
people are at risk to harm themselves, there really is not a
process in the law for helping the gun owner actually receive
their firearm back again, and for judicial oversight in those
situations. He explained that that is in response to the
warrantless situation. As to the ex parte protective order, he
offered a scenario of a peace officer receiving a call that a
someone's son is going to "shoot up the neighbor's house" and
they are concerned. For various reasons, the peace officer goes
to the courthouse and advises the judge that they just received
this call and they provide a statement from the mother, requests
an ex parte protective order and a search warrant to try to
prevent this person from shooting up the neighbor's house, the
mother advised that her son owns a .22 long rifle, he has made
these threats before, and she believes he is serious this time.
The judge agrees and issues the ex parte order and search
warrant, the peace officer serves the documents on the son and
advises the son that in 10 days he would have a hearing on this
issue, and the judge will determine whether the firearm would be
returned. That standard is clear and convincing evidence as to
whether it should be retained, if the judge decides at the
hearing that the son is still a danger, the case will go to a
six-month protective order or the court can terminate the order
earlier if it so chooses on petition of the officer or the
respondent and the request for hearing is filed, he explained.
8:50:22 PM
VICE CHAIR KREISS-TOMKINS determined that because Amendment 2 is
simply re-ordering sentences in the bill and its scope is fairly
limited, he moved to committee discussion.
8:51:13 PM
REPRESENTATIVE EASTMAN commented that the substance of Amendment
2 is on page 1, lines 11-12, "we're making a switch, which is
page 6, line 20 of the bill, and we are pulling out the ex parte
from that, and that is a substantive change. It not a re-
ordering or rephrasing. We're making it clear for purposes of
the bill that the ex parte protective order is not going to fall
under this same provision here on line 20."
8:52:06 PM
REPRESENTATIVE REINBOLD commented that before she makes her wrap
up comments, she would talk about the Second Amendment,
regarding the right of the people to keep and bear arms.
VICE CHAIR KREISS-TOMKINS advised Representative Reinbold that
he had not yet recognized her, and the committee members have a
two-minute timeline for Amendment 2.
8:52:30 PM
[VICE CHAIR KREISS-TOMKINS and Representative Reinbold discussed
the scope of Amendment 2.]
REPRESENTATIVE REINBOLD commented that "it read that the right
of the people to keep and bear arms shall not be infringed, and
legislators swore to uphold and defend the constitution, as you
did." (Indisc.) so when reviewing the other amendments, "you're
not allowed to do this." She remarked that the committee is
rushing something that is in complete violation, "if you swore
to uphold and defend the constitution." She said that she did
not know what it says, it says to seize any (indisc.) know if
that means "your office, I don't know if that means your
mother's house, I don't know what it means when you can search
and seize warrantlessly as long as it is in their possession,
custody, or control." She described "this" as extremely broad
and it is wrong to rush something that is critical to what holds
this nation together.
8:54:19 PM
REPRESENTATIVE KOPP noted that he agrees with Representative
Reinbold's words of caution in protecting the Second Amendment,
but this is not about warrantless searches. This discussion is
about warrantless seizures and those can only take place when
the nature of the circumstance demands an immediate response
based on the danger the peace officer immediately observes, such
as the circumstance of someone saying they are thinking of
killing themselves and are holding a gun, and the peace officer
is able to talk them out of killing themselves and allows the
peace officer to seize the gun. He stressed that this is not
about a warrantless search, a search always requires a warrant
and if making a search without a warrant, the courts frown on
that action.
8:56:08 PM
REPRESENTATIVE LEDOUX related that she understands
Representative Reinbold's point of view and concurs with her
comments regarding the Second Amendment. Except, she expressed,
even if the committee does not adopt Amendment 2, the bill in
itself uses the phrase "possession, custody, or control" and she
will probably vote in favor of the amendment, but she still has
some concerns about the bill with or without Amendment 2. She
offered understanding as to the concerns of the DPS officers.
8:57:19 PM
REPRESENTATIVE REINBOLD maintained her objection.
[VICE CHAIR KREISS-TOMKINS and Representative Eastman discussed
the fact that he had previously offered his comments.]
8:57:45 PM
REPRESENTATIVE REINBOLD declared a point of order. She said,
there are two points of order, "it says, when you rush there is
often unfairness, and two, you have to have equality for members
and he's being denied. He had a point of clarity which is much
different than discussion."
VICE CHAIR KREISS-TOMKINS ruled that he opened the committee
discussion by offering each member two minutes of comments and
Representative Eastman was recognized first, before any other
member. In the spirit of equality, he will offer Representative
Claman two minutes to speak to any questions raised by other
members.
8:58:18 PM
REPRESENTATIVE EASTMAN declared a point of order. He said that
his hand had been raised for quite some time and he was passed
over several times before Vice Chair Kreiss-Tomkins determined
that his next statement would be his two-minute wrap-up, and he
thought that was inappropriate.
VICE CHAIR KREISS-TOMKINS ruled, "Noted."
8:58:38 PM
CHAIR CLAMAN, in response to Representative Eastman's comments
and questions about clarity, advised that Representative Eastman
was actually mistaken when reading the amendment and the bill.
The bill does not remove the ex parte provisions, the amendment
on lines 10-12 simply removes the second sentence of the bill in
subsection (a) and makes it a separate subsection. Therefore,
the ex parte provisions are retained and put in a separate
subsection, and then subsection (b) addresses the non-ex parte
situation. The whole purpose of Amendment 2 is not to debate
the merits of ex parte orders, but rather to make the language
of the bill clear and more easily understood so there is no
confusion. He stressed that it does not change the substance of
the language at all, and he commented that Representative LeDoux
was "right on target," the question for this amendment is not
whether a member supports the bill, the question one should ask
is whether this amendment, by changing the language on page 6,
beginning line 19, offers a clarity for peace officers and court
officers. Chair Claman opined that it does. For those reasons,
he urged the committee to vote in favor of Amendment 2.
CHAIR CLAMAN, in response to Representative Reinbold, advised
that he agrees with her comments about being very careful about
protecting Second Amendment rights, but he never heard her ask a
question.
9:00:09 PM
REPRESENTATIVE REINBOLD declared a point of order. She referred
to "Section 85 says that we have the fundamental right to know
the intended and unintended consequences before we vote." She
asked whether the intention is that peace officers do not search
lodges, businesses, homes, and so forth, that it is only where
that person resides at that time.
VICE CHAIR KREISS-TOMKINS ruled that Chair Claman made clear
what he sees as the intended consequences of Amendment 2, and
the committee would proceed to a vote.
9:00:42 PM
A roll call vote was taken. Representatives Kreiss-Tomkins,
Kopp, Stutes, LeDoux, and Claman voted in favor of the adoption
of Amendment 2. Representatives Reinbold and Eastman voted
against it. Therefore, Amendment 2 was adopted by a vote of 5-
2.
9:01:17 PM
VICE CHAIR KREISS-TOMKINS passed the gavel back to Chair Claman.
[HB 75 was held over.]