Legislature(2011 - 2012)CAPITOL 120
02/09/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB80 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 80 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 127 | TELECONFERENCED | |
HB 80 - SELF DEFENSE
1:07:07 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 80, "An Act relating to self defense in any place
where a person has a right to be."
1:08:11 PM
REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, speaking
as one of the joint prime sponsors for HB 80, relayed that the
proposed legislation would change AS 11.81.335(b) to reflect
that a person doesn't have a duty to retreat and can instead
apply deadly force if he/she is anywhere he/she has a right to
be.
1:11:19 PM
BRIAN JUDY, Senior State Liaison, National Rifle Association -
Institute for Legislative Action (NRA-ILA), testifying in
support of HB 80, characterized the proposed bill as important
self-defense legislation. He offered his belief that the bill
would apply to only those who are justified in using deadly
force. He then offered his understanding that the use of deadly
force is justified when a person reasonably believes that he/she
or a person he/she is protecting is in danger of being killed,
sustaining serious bodily injury, being a victim of sexual
assault, being kidnapped, or being robbed; it is not justified
if the person is engaged in mutual combat, is provoking another
person to violence, is the initial aggressor, or "possesses a
weapon in furtherance of a felonious activity." Mr. Judy
posited that although it is not explicitly expressed in statute,
gang activity would be included under possessing a weapon in
furtherance of a felonious activity. Mr. Judy said the proposed
bill would remove the need for someone to have to ask
him/herself if retreat is possible.
1:14:54 PM
CHAIR GATTO, using an example wherein a person comes upon
someone attacking another person, asked how that situation would
be treated under HB 80 in terms of the duty to retreat.
MR. JUDY ventured that statutes outline that a person is
justified protecting his/her life and the life of another;
therefore, under the provisions of the proposed bill, the person
in Chair Gatto's example would be allowed to defend the victim.
In response to a follow-up question, he said the first option is
to call 911. He said his experience has shown that people who
carried a concealed weapon do everything possible to avoid
confrontation, because when a person - good or bad - pulls a
trigger, he/she will be arrested.
1:17:44 PM
REPRESENTATIVE NEUMAN noted that AS 11.81.330 speaks about
situations involving mutual combat, and opined that the bill
wouldn't apply in such situations.
1:18:54 PM
MR. JUDY added his belief that under existing law, even when a
person's use of force was justified, he/she risks a finding by
court that he/she overestimated the difficulty of retreating.
He opined that in the split second available, once a person
judges him/herself to be justified in taking action, he/she
should not have to then stop and consider whether it is possible
to retreat. He urged the committee support of HB 80.
1:20:40 PM
REPRESENTATIVE HOLMES said she agrees that a person in danger
should have the right to defend him/herself, and she relayed
that in those examples she has heard, the person is already
covered by existing law. Therefore, she asked for examples of
when, under existing law, people are being prosecuted that
should not be.
MR. JUDY acknowledged that current statute is good, but that HB
80 would "take it the rest of the way." He indicated that there
are 16 states that currently have statutes similar to HB 80. He
said the bill would ensure that a person has the ability to act
on justification. He said the intent of the proposed
legislation is to alleviate the need for a person to justify
before a court that he/she was justified in killing someone, and
he suggested criminals would be taking a bigger risk once they
know about this new law.
REPRESENTATIVE HOLMES expressed concern that the change proposed
by HB 80 will simply make it easier for criminals to get
acquitted of murdering someone, particularly given that there
are not a lot of people going to trial having to defend their
justified actions.
MR. JUDY argued that a person would still have to be justified
in killing another person, and that the criteria for what
constitutes justification are sufficient to prevent such from
happening.
1:27:20 PM
REPRESENTATIVE NEUMAN ventured that HB 80 is simply adding a
clarification with regard to whom Alaska's self defense statute
applies; it simply would allow the person to be "in any place
where the person has a right to be." He said he wants to ensure
that a person has a right to defend him/herself before harm is
inflicted.
CHAIR GATTO referred to language in Section 1, subsection (b),
which read as follows:
Section 1. AS 11.81.335(b) is amended to read:
(b) A person may not use deadly force under
this section if the person knows that, with complete
personal safety and with complete safety as to others
being defended, the person can avoid the necessity of
using deadly force by leaving the area of the
encounter, except there is no duty to leave the area
if the person is
CHAIR GATTO said the words "knows" and "complete" are absolutes,
and he opined that a person needs better protection than that
because "it will never happen." He said if the words "suspects"
and "reasonable" safety had been used, it would completely
change the meaning.
1:30:47 PM
REPRESENTATIVE GRUENBERG pointed out that [AS 11.81.335(b)]
requires that a person has an absolute necessity to kill another
person, which is a very high standard.
MR. JUDY concurred.
CHAIR GATTO asked if the words "reasonably believes" trump the
word "necessity".
MR. JUDY offered his understanding that those words work
together.
REPRESENTATIVE GRUENBERG said he does not see the words
"reasonably believes" in the aforementioned statute.
REPRESENTATIVE NEUMAN explained that "reasonably believes"
appears in another portion of AS 11.81.334, [subsection (a)],
which read as follows:
(a) Except as provided in (b) of this section, a
person who is justified in using nondeadly force in
self-defense under AS 11.81.330 may use deadly force
in self-defense upon another person when and to the
extent the person reasonably believes the use of
deadly force is necessary for self-defense against
(1) death;
(2) serious physical injury;
(3) kidnapping, except for what is described as
custodial interference in the first degree in AS
11.41.320;
(4) sexual assault in the first degree;
(5) sexual assault in the second degree;
(6) sexual abuse of a minor in the first degree;
or
(7) robbery in any degree.
REPRESENTATIVE GRUENBERG, regarding the language, "in any place
where the person has a right to be", which would be added to AS
11.81.335 under HB 80, said there is language currently in that
statute that would become incongruous. For example, he noted
that current statute says that there is no duty to leave the
area if the person is on premises "that the person owns or
leases" or "where the person resides", or is "in a building
where the person works in the ordinary course of the person's
employment". He pointed out that a landlord cannot go into a
tenant's apartment without giving 24 hours notice, that a person
may not have a right to be at his/her residence if he/she is the
subject of a domestic violence order, and that a person may not
have a right to be in a particular office within a building in
which he/she works.
1:35:21 PM
CHAIR GATTO questioned whether not being prohibited from being
somewhere means the same thing as having a right to be there.
REPRESENTATIVE GRUENBERG offered an example that although he is
not prohibited from entering the home of someone he knows, he
would wait to be invited into that home.
REPRESENTATIVE GRUENBERG directed attention to language on page
2, line 2, "protecting a child or a member of the person's
household", and said he thinks there may be reason to need to
protect someone else, for example, a parent or disabled adult.
1:36:55 PM
REPRESENTATIVE NEUMAN offered that other statutes would apply in
such circumstances, but acknowledged that perhaps some of the
language that Representative Gruenberg highlighted could be
removed.
REPRESENTATIVE GRUENBERG expressed concern that the language in
paragraph (4), regarding the protection of a child or member of
the person's household, may be too narrow.
CHAIR GATTO said many people consider their pets to be members
of their household.
REPRESENTATIVE GRUENBERG said traditionally a member is a
person.
The committee took an at-ease from 1:39 p.m. to 1:40 p.m.
1:40:36 PM
REPRESENTATIVE GRUENBERG noted that AS 11.81.340 [addresses use
of force "in defense of a third person"]. He then pointed out
that Perkins Law addresses the issue of "castle" rule; "castle"
is a term of art that has been around for many years. In
response to Chair Gatto, he gave examples of cases from the '40s
and '50s in which that term was used.
1:43:22 PM
REPRESENTATIVE THOMPSON expressed support for HB 80.
1:45:08 PM
DOUGLAS MOODY, Deputy Director, Criminal Division, Central
Office, Public Defender Agency (PDA), Department of
Administration (DOA), said, for example, when a person is out
hunting and gets involved in an altercation and has a duty to
retreat, the question becomes when that person should make that
decision. He said when a person "knows" "with complete personal
safety" [that he/she could avoid using deadly force by leaving
the area] is something that is decided by a jury, and the jury
could infer from conduct whether or not the person had that
knowledge. Under HB 80, he said, the question would become
whether the person is justified in defending him/herself in a
situation that he/she did not bring about, rather than
questioning if the person waited too long to leave because
he/she had a right to be there.
1:47:50 PM
CHAIR GATTO offered an example wherein one hunter encounters
another hunter who tells the first to get out of his territory,
to which the first says he has a right to be there, at which
point the hunter tells the first hunter he has to the count of
three to leave. He asked Mr. Moody how he would interpret that
scenario with regard to self defense.
MR. MOODY responded that that scenario could be interpreted in
more than one way. The first possibility, he said, is that the
jury could decide that the first hunter had a duty to walk away
the minute the other hunter said the territory was his and
ordered him to do so, because the first hunter was aware that
both people involved were armed, which could result in a
shooting. The second possibility, he related, is that the jury
could decide that the first hunter's duty to walk away began the
moment the other hunter gave him to the count of three to do so,
because the hunter giving the ultimatum had escalated the
situation. The third possibility, Mr. Moody, ventured, is that
if the aggressive hunter raised his gun after giving the first
hunter to the count of three and the first hunter shot him; the
jury may be sympathetic and decide that the first hunter had the
right to defend himself because he did not create the situation
and had the right to be there. He emphasized that the proposed
law changes the focus from whether a person is engaged in
misconduct to whether someone else is forcing the person into a
situation in which he/she has to defend himself.
CHAIR GATTO asked Mr. Moody how he would defend the first hunter
if that hunter said he did not trust the aggressive hunter, did
not want to turn his back to him, did not want to walk backwards
through the woods, and did not want to leave. He asked if a
threat is sufficient reason for acting in self defense, and he
added to his hypothetical situation that the first hunter
intended to shoot the aggressor in the knee, but missed and shot
him in the heart.
MR. MOODY said he would argue for the first hunter that he was
dealing with someone who was unreasonably aggressive and that
his only option was to shoot first in this instance. However,
he said he would warn his client that the outcome would depend
on the jury.
CHAIR GATTO stated that when a person takes action based on
his/her right to be somewhere, then he/she has a greater measure
of credibility. He opined that that is the crux of the proposed
legislation. He then relayed that public testimony would remain
open at this time.
1:53:42 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), noted that AS
11.81.340 addresses the issue of defending those who are not
members of one's household. He stated, "What that provision is
in there for is you don't have an obligation to remove yourself
from a situation where you're using self defense and it's your
child or a member of the household. ... That's only dealing
with ... an obligation to remove yourself from the area."
REPRESENTATIVE GRUENBERG characterized language in statute
regarding retreating as confusing, and asked for the general
rule regarding the duty to retreat.
MR. SVOBODNY said in 1935 it was indicated that there was not,
in the Territory of Alaska, the obligation to retreat. He said
in 1978, with the revision of the criminal code, the legislature
made the determination that under some circumstances, if a
person could remove him/herself from a situation of danger in
complete safety, then he/she would be required to do so. In
2006, he noted, there was a revision in this language through
Senate Bill 200.
1:57:41 PM
CHAIR GATTO opined that using a standard of "complete" is
setting a bar that can't be reached.
MR. SVOBODNY related that a person does not need to retreat
unless he/she can do so in complete safety. So, in the example
previously given by Chair Gatto, the first hunter would not have
a duty to retreat because it would not have been safe to turn
his back on the other hunter. Furthermore it is the State of
Alaska that has to prove beyond a reasonable doubt that there
was no danger to the person in retreating.
CHAIR GATTO opined that it would be too difficult for a person
to have to keep all the factors in mind before taking action in
the moment.
REPRESENTATIVE THOMPSON questioned why the fiscal note doesn't
reflect a decrease in spending, given that the department would
not have to prosecute as many people.
MR. SVOBODNY pointed out, though, that in situations involving
the death of a person, the Department of Law still has to make
some determinations. He mentioned the number of cases and the
need for extra personnel.
REPRESENTATIVE THOMPSON asked Mr. Svobodny if he is saying that
the number of cases DOL has will increase from the 1,155 cases
the department had last year.
MR. SVOBODNY explained that the number of cases for review will
not increase, but the number of cases that go to trial likely
will, as indicated by Mr. Moody's response to Chair Gatto's
hypothetical case.
2:03:39 PM
REPRESENTATIVE HOLMES surmised that the broadening of statute
under HB 80 would make it easier for criminals to claim self
defense, which would make it more difficult for the department
to prove a case is one of murder rather than self defense.
MR. SVOBODNY concurred. He stated that true cases of self
defense should not have to go to trial. He said the department
agrees with the bill sponsor that victims of crimes should be
protected and those who use self defense are victims of crimes.
He related a case in which two men were each driving a vehicle,
got into an argument, pulled over into a parking lot, where both
had a right be, and one shot the other. He said that case
settled with a plea, but "now it will be litigated." He said
the department anticipates that cases like that would [under HB
80] go to trial more often. He said the door would be open to
arguing that cases now not considered self defense would be self
defense under the proposed legislation.
2:07:59 PM
REPRESENTATIVE HOLMES directed attention to a letter in the
committee packet dated March 15, 2010, from the Department of
law to then chair of the House Judiciary Standing Committee,
Representative Jay Ramras. She offered her understanding that
the letter referred to a prior version of the bill [House Bill
381], and she ventured that some of the concerns stated therein
may pertain to HB 80. She cited a portion of the letter, which
read as follows:
Every experienced prosecutor with whom I have spoken
about this bill uniformly agrees that it would promote
violence and be a bad idea for our state. We believe
that as drafted this bill will encourage unnecessary
violence in our state.
REPRESENTATIVE HOLMES said she would like Mr. Svobodny's opinion
regarding that letter written in 2010.
CHAIR GATTO offered his belief that HB 80 will reduce violence,
and cautioned against making a decision about the bill based on
fears of what might happen. He asked Lieutenant Rodney Dial if
he thinks there would be more or less violence resulting from
having people more willing to protect themselves.
2:11:52 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said he doesn't see HB 80 affecting DPS at all or at
least not dramatically affecting the number of purported self
defense cases. He said most cases of self defense are clear,
and when they are not, the Alaska State Troopers contacts the
district attorney prior to making the arrest. He concluded,
"It's just not something that I've seen a lot of over the years,
so, it's really hard for me to comment on what may happen if
this legislation is passed."
2:13:13 PM
MR. SVOBODNY, in response to a question, said he doesn't believe
that [passage of HB 80] would result in an increase in violence.
He reiterated that the number of cases will remain the same, but
the State of Alaska will have to spend more time on them. He
added that he does not know of any cases where a purported self-
defense case was not screened out before going to trial.
REPRESENTATIVE HOLMES asked Lieutenant Dial if an increase in
the number of cases going to trial would mean an increase in
workload for the Department of Public Safety.
LIEUTENANT DIAL reiterated that the department does not believe
that HB 80 would have a significant impact on its activities.
2:15:45 PM
CHAIR GATTO noted that members' packets include 22 letters of
support for HB 80 and none in opposition. He then relayed that
HB 80 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB80 Hearing Request 02-02-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
| HB80 Witness List 02-02-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
| HB80 Version A 01-18-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
| HB80 Fiscal Note-DPS-AST-02-07-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |
| HB80 Sponsor Statement 02-08-11.pdf |
HJUD 2/9/2011 1:00:00 PM |
HB 80 |