Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/07/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB80 | |
| SB134 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 80 | TELECONFERENCED | |
| + | SB 134 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 80-SELF DEFENSE
1:33:30 PM
CHAIR FRENCH announced the consideration of HB 80, "An Act
relating to self defense in any place where a person has a right
to be."
1:33:42 PM
REX SHATTUCK, staff to Representative Mark Neuman, a prime
sponsor of HB 80, characterized the bill as the "no duty to
retreat" legislation. He explained that HB 80 amends AS
11.81.335(b) by adding a new paragraph (5) to clarify a person
does not have a duty to retreat and can instead apply deadly
force in defense of self if he/she is anywhere he/she has a
right to be. He noted that approximately 18 other states had
already passed or were working on similar legislation.
CHAIR FRENCH noted that Lieutenant Dial with the Department of
Public Safety (DPS), Brian Judy with the National Rifle
Association, Quinlan Steiner with the Public Defender Agency and
Anne Carpeneti with the Department of Law (DOL) were available
to answer questions. He asked Mr. Shattuck if a particular
incident in Alaska served as a catalyst for the bill.
MR. SHATTUCK relayed that a number of constituents and groups
expressed interest in the issue after the question was raised in
several cases in the Lower 48.
1:39:54 PM
CHAIR FRENCH reviewed the bill packet and observed that it
contained an impressive amount of supporting material and
messages from across the state. Promising that the committee
would conduct a detailed examination of the self defense law, he
emphasized that the current law was reasonable and that it was a
misconception that the duty to retreat means that a person has
to give up in the face of a criminal attack. He asked Ms.
Carpeneti to provide an overview of the self defense law as it
currently stands.
1:41:18 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), said the first thing
to understand is that self-defense is a defense which the state
has to disprove beyond a reasonable doubt.
CHAIR FRENCH posed a hypothetical situation to clarify the
meaning of that statement. A mother with two children is
carrying groceries to her car and is beset by a robber in the
parking lot. Believing the man is armed, she uses her own gun to
shoot him. The district attorney's office has to screen that
case and decide whether or not to accept a charge of homicide
against the mother.
MS. CARPENETI added that the screening decision in that example
would be not to prosecute the woman, because in Alaska the duty
to retreat only applies when a person knows that he or she can
retreat in complete safety to him or herself and others they are
protecting.
CHAIR FRENCH summarized that the DA would make the decision not
to prosecute because no crime had occurred. It was a lawful use
of self-defense under current Alaska law.
MS. CARPENETI replied that is correct.
CHAIR FRENCH asked if Senator Coghill, for example, would be
authorized to shoot and kill the attacker, assuming the woman
was unarmed and he saw a gun in the attacker's hand.
MS. CARPENETI confirmed that he would not have the duty to
retreat under that circumstance. If he had reasonable belief
that the woman was in danger he could use deadly force to
protect the woman and her children.
CHAIR FRENCH asked if in the second scenario the duty to retreat
pertains to the victim and not so much to Senator Coghill. The
issue is whether the victim can get away.
MS. CARPENETI confirmed that was correct.
CHAIR FRENCH read the current law under AS 11.81.335(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..."
He adjusted the hypothetical to illustrate that every situation
has to be analyzed. In this instance the woman is walking to her
car and a man gets out of another car that is parked 20 yards
away. The man has a gun. He asked what the obligation would be
under that scenario.
MS. CARPENETI agreed that ever situation is different and each
has to be analyzed on its facts. If Senator Coghill had
reasonable belief that there was deadly danger to that woman, he
would have the right to use the defense of third parties in
defense of others. Under that circumstance he would not have the
duty to retreat.
1:45:26 PM
MR. SHATTUCK agreed with Ms. Carpeneti and highlighted that
there are both objective and subjective considerations. He noted
that Justice Oliver Wendell Holmes questioned how subjective a
person needed to be when the objective justification was that
there was a gun in your face.
CHAIR FRENCH agreed that Justice Oliver Wendell Holmes said
there is no duty to retreat under certain circumstances. He
said, "detached reflection cannot be demanded in the presence of
an uplifted knife." That is common sense and the current law in
the state of Alaska. Senator Coghill would not be expected to go
through a calculated analysis of the situation. If he sees
someone being beset by an armed robber, he can kill that robber
and the Department of Law would not prosecute. If he were
prosecuted, Senator Coghill would go to court with the legal
advantage of the state not only having the burden of convicting
him beyond a reasonable doubt, but also of disproving his self-
defense claim beyond a reasonable doubt.
CHAIR FRENCH said he was going through this in detail because of
the seeming misperception that people cannot already exercise
the right of self-defense. That is not the case; people in the
state of Alaska have an absolute right to defend themselves.
1:48:40 PM
BRIAN JUDY, Senior State Liaison, National Rifle Association -
Institute for Legislative Action (NRA-ILA), Sacramento,
California, stated strong support for HB 80. He relayed that the
sponsor suggested that he hold his testimony until the next
hearing when the full committee and the sponsor could be
present. He offered to answer questions as they came up during
this hearing.
CHAIR FRENCH asked if he had any comment about what he'd heard
today, and if the NRA had any good examples of an innocent
person being prosecuted for homicide when a bill like this would
have prevented such a prosecution.
MR. JUDY confirmed that the bill was not introduced based on any
specific circumstance; it was brought on the philosophical
discussion nationwide on the issue of self defense. He
acknowledged that existing Alaska law provides that there is no
duty to retreat if a person is justified and on premises they
own, lease, reside, or work. However, the NRA's position is that
if a person is out in public where they have a right to be and
they are justified, they should not have to go through that
mental exercise as to whether or not they can retreat with
complete safety.
He urged caution in saying there is an absolute right to defend
oneself. The prosecutor is going to consider whether the person
was justified and whether the person could retreat with complete
safety so the person in the circumstance has to consider that as
well in deciding whether to employ deadly force.
1:53:59 PM
CHAIR FRENCH asked if the NRA had analyzed what it means to have
a right to be in a particular place. For example, does a person
that goes to Disneyland or the movies have a right to be there
or are they there as a guest or at the permission of the
corporate or business owner.
MR. JUDY replied the NRA's analysis would be that a person who
is not trespassing and has the legal right to be in a place
would be covered under the provisions of HB 80. He acknowledged
that private property owners have a right to impose limitations
on the use of their property, and that the limitations are
different when the private property is closed to the public as
opposed to private property that is open to the public.
CHAIR FRENCH asked the public defender if passage of HB 80 would
essentially remove the duty to retreat from Alaska law.
1:57:05 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), advised that there would be a remaining
duty to retreat in situations like trespass where a person did
not have a legal right to be there.
CHAIR FRENCH asked if he would agree that a person who was in a
parking lot that was closed to the public for the night would
not have a legal right to be in that parking lot.
MR. STEINER responded that if someone were charged under that
circumstance there would probably be litigation about whether or
not the person had the duty to retreat.
CHAIR FRENCH observed that the first question is whether or not
the person had a legal right to be in the parking lot, and once
that is resolved it would be clear whether or not the person had
a duty to retreat.
MR. STEINER responded that in the instance where somebody has
used deadly force, the preliminary question is whether or not he
or she had that authority. He opined that it's in that regard
that HB 80 may have no impact. Under the statute the two events
are theoretically mutually exclusive. If a person can retreat in
total safety, he or she does not have the authority to use
deadly force. If a person has the authority to use deadly force,
arguably there are no circumstances under which he or she could
retreat in total safety.
CHAIR FRENCH asked if the Public Defender Agency had a position
on the bill.
MR. STEINER said no.
SENATOR COGHILL said he will be looking at the issue from two
perspectives. One is how the courts will interpret the statute
and the other is how the public will interpret their rights
under the statute.
CHAIR FRENCH agreed that people will look to the law for
direction and it should be as clear as possible.
2:02:25 PM
CHAIR FRENCH announced he would hold HB 80 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Sponsor Statement SB 134.doc |
SJUD 3/7/2012 1:30:00 PM |
SB 134 |
| HB 80 Sponosr Statement.pdf |
SJUD 3/7/2012 1:30:00 PM |
HB 80 |
| SB134 Memo from Leg Legal.pdf |
SHSS 2/6/2012 1:30:00 PM SJUD 3/7/2012 1:30:00 PM |
SB 134 |
| SB134 11-076 Leg SB134 Research Report Child Support in other states.pdf |
SHSS 2/6/2012 1:30:00 PM SJUD 3/7/2012 1:30:00 PM |
SB 134 |