Legislature(2011 - 2012)CAPITOL 120
03/25/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB171 | |
| HB23 | |
| HJR4 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 171 | TELECONFERENCED | |
| + | HJR 4 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 23 | TELECONFERENCED | |
HB 171 - ARRESTS FOR MISDEMEANORS
1:06:18 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 171, "An Act relating to arrests without warrants
by peace officers for certain misdemeanors."
1:06:37 PM
REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, sponsor by
request, explained that HB 171 would allow law enforcement
officers to make an arrest without a warrant for certain
misdemeanor crimes against a person when there is probable
cause. The concept of HB 171 was brought forth by the Juneau
Police Department (JPD), and is endorsed by police departments
across the state. Under AS 11.41 - offenses against a person -
misdemeanor crimes include assault in the fourth degree,
reckless endangerment, stalking in the second degree, custodial
interference in the second degree, sexual assault in the fourth
degree, sexual abuse of a minor in the fourth degree, and
indecent exposure in the second degree. She mentioned that law
enforcement representatives would be providing testimony
regarding why legislation such as HB 171 is needed and how it
would improve law enforcement's ability to effectively ensure
public safety in Alaska's communities.
1:09:13 PM
KRIS SELL, Lieutenant, Juneau Police Department (JPD), City &
Borough of Juneau (CBJ); President, Capital City Chapter -
Juneau, Member, State Board of Directors, Alaska Peace Officers
Association (APOA), after mentioning that she would be
testifying only on behalf of the APOA, said that the APOA is
supporting HB 171 as part of its agenda to promote victims'
rights. She then shared an experience she'd had many years ago
as a patrol officer in Juneau as illustrative of the need for
HB 171. Back then, there was a man in the downtown area who
liked to beat up people who were weaker than himself, especially
drunk people because they were easy targets; he would just start
punching other people simply because they drew his attention.
One night, near the El Sombrero restaurant on Franklin Street,
this man punched a much smaller/lighter man in the face. The
victim, who either couldn't or wouldn't do much to defend
himself, was young and had some mental-health problems but
regardless had done nothing to deserve getting beaten. The
victim was obviously injured by the time she arrived, she
relayed, and witnesses pointed out where the perpetrator had
gone, and knowing whom they were referring to, then-Officer Sell
gave chase and caught up with him by the bank on Front Street.
LIEUTENANT SELL continued:
I got in front of him and told him he was detained as
part of the investigation. He sized me up and down
and said, "No, I'm not." I said, "Yes, you are," and
drew my baton from the ring at my waist. He looked at
me and thought for a second - I felt like I could
almost see the smoke coming out of his ears as he
pondered what might happen next - [and] I will admit
to being relieved when he said, "Okay," and turned
around and put his hands behind his back to be
handcuffed - he had a long history of assaulting
people, both [domestic partners and others], ... and
he knew the drill. I walked him back to the scene to
the approval of the gathered crowd, and put him in the
back of my patrol car, and spoke with the victim, the
victim's friend, and other witnesses. They all agreed
I had the right man and that he had viciously punched
the much smaller man in the face. It also came out in
officer interviews, there and other places, that the
man had punched two other people within about 24
hours, one of whom had [come] ... into the police
department with his eyes swelled shut.
1:12:12 PM
I got out a citizen's arrest report form and offered
it to the people who ... saw the assault. No one
would sign. They were afraid of him. I was
frustrated, but I understood - he was a very scary
man, even for us. None of the civilians in the area
wanted to be the focus of this violent man's attention
and retribution. I told the victim about how I was
going to have to let the man go if no one would place
him under arrest. This is exactly what happened - [I]
took the man out of the car, took off his handcuffs,
and let him go. You can imagine what this did for his
reputation as someone who was going to do whatever he
wanted and nobody, including the police, ... [was]
going to stop him. The bully went on to harm
additional people in his criminal career, until we
finally saw him go to prison for a long period after
he robbed a homeless man: a felony, where we didn't
need anybody who was a witness to place him under
arrest.
But I've always wondered how many of those assaults -
how many of those criminal acts - could have been
prevented if we could have held him accountable more
severely and much quicker. I'm asking you to let the
police protect citizens and to do so immediately after
a citizen is violently attacked. We officers will put
our names down on the piece of paper and take the
responsibility for arresting those who hurt others.
Please don't continue to put that responsibility on
people who are frightened and who have every reason to
be frightened. It is time to tell the bullies and
those who make a lifestyle of intimidating others that
we are done with that behavior, and consequences for
attacking even a stranger will now be immediate.
Thank you - I appreciate your time and attention ....
LIEUTENANT SELL, in response to questions, reiterated that the
APOA supports HB 171, and said she doesn't anticipate that the
arrest authority granted by the bill would be used all the time,
particularly given that even with probable cause, law
enforcement officers often want to conduct additional
investigation before actually arresting someone; instead, HB 171
would give law enforcement officers another tool with which to
address violent behavior immediately. She pointed out, too,
that an arrest would not be mandatory under the bill like it is
under Alaska's domestic violence (DV) statutes. In response to
further questions, she explained that law enforcement officers
already have to determine whether an assault has actually taken
place, whether there really is probable cause to arrest someone,
who to arrest, and whether an arrest is going to be the best way
of addressing the violent behavior or whether alternative steps
could be taken, and the bill wouldn't change that; and that
current law already requires mandatory arrest in situations
involving DV regardless of whether the violence is witnessed by
the officer, and thus the bill wouldn't be used in DV
situations. Again, HB 171 would simply give law enforcement
officers a tool with which to immediately address [non-DV-
related] violent behavior in situations where no one wants to
make a citizen's arrest and the officer hasn't witnessed the
behavior.
1:21:07 PM
EDWARD TALIK, Chief, Ketchikan Police Department (KPD), City of
Ketchikan, expressed support for HB 171, characterizing it as
important legislation that would provide another tool for
Alaska's law enforcement officers. He went on to explain that
the KPD is a small police force, serving a population that
doubles with the influx of seasonal workers and tourists, and
thus there is a definite need for the KPD to keep public safety
at the forefront of its efforts. If passed, he predicted,
HB 171 would give KPD officers greater latitude to address some
of the issues they face daily. Often, calls for service
pertaining to [non-DV-related] assaults come after the fact, and
currently law enforcement officers can't do much unless someone
is willing to place the perpetrator under citizen's arrest. By
allowing an officer that has probable cause to make an on-scene,
warrantless arrest for one of the aforementioned misdemeanor
offenses against a person, HB 171 would go a long way towards
helping the KPD protect its citizens, particularly given that
many times officers end up responding to the same call several
times during their shift; by providing the option of taking an
individual into custody on the first call and thereby preventing
folks from being further injured by that same individual, HB 171
would result in a more efficient use of law enforcement
resources. Furthermore, it makes more sense to arrest a
perpetrator of a violent crime immediately.
1:24:17 PM
MR. TALIK offered his belief that HB 171 would help protect
victims from further violence and serve as a deterrent because
perpetrators of violence would know that they're going to be
arrested immediately when there is probable cause. There must
be a balance between protecting the individual's rights and
protecting the public at large, and HB 171 would be a small step
toward achieving that balance, he opined, additionally offering
his belief that HB 171 would survive a constitutional challenge
because similar laws in other states have done so. In
conclusion, he reiterated his belief that once adopted, HB 171
would help protect people in the community. In response to
questions and comments, he stated that arrests should only be
made when there is probable cause to make an arrest; pointed out
that the bill, already, would only apply to misdemeanor offenses
against a person, and that although there might be a cost
associated with making more arrests under the bill, there is a
huge cost to society and to victims when they are continually
being abused, assaulted, or raped by the same perpetrators of
violence; offered his belief that the authority granted by the
bill would not be used that often, and that it would not be
abused because officers are trained to follow the rules of
arrest which require them to have probable cause before making
an arrest; and surmised that changing the bill such that it
would specifically list the crimes to which it could apply would
still be in keeping with the spirit of the bill.
REPRESENTATIVE HOLMES questioned whether perhaps the bill ought
to be changed to specify that it could only be used when the
officer also has reasonable cause to believe a danger to the
public exists if someone isn't arrested, but acknowledged that
whether a person should be arrested under the bill could instead
just be left up to the discretion of the officer.
MR. TALIK indicated a preference for having the bill be as
simple as possible.
1:36:11 PM
TERRY VRABEC, Executive Director, Alaska Police Standards
Council (APSC), Department of Public Safety (DPS), relayed that
both the APSC and the Alaska Association of Chiefs of Police,
Inc. (AACOP), support HB 171. In response to a question, he
explained that from the very beginning, the training of law
enforcement officers stresses the importance of learning what
constitutes probable cause and of being able justify all
arrests; and that it is the responsibility of the heads of
Alaska's various law enforcement agencies to ensure that their
officers are following proper procedure. He then offered his
belief that HB 171 would be effecting a good law, and cautioned
against tightening it up to the point where it would no longer
be helpful.
1:39:05 PM
JERRY NANKERVIS, Captain, Juneau Police Department (JPD), City &
Borough of Juneau (CBJ), shared an experience he'd had many
years ago regarding a bar fight he'd responded to as
illustrative of the necessity for and appropriateness of HB 171.
Back then, when he arrived at the scene, the man who'd lost the
fight was unconscious and so couldn't be interviewed, and
although witnesses at the scene pointed out the perpetrator,
none were willing to sign the arrest form, and therefore [then-
Officer Nankervis] was unable to arrest the perpetrator because
he had not witnessed the fight. Noting that as a police officer
he is charged with public safety, he said he wasn't able to do
his job that night, and characterized that inability as just
being wrong. Passage of the bill would neither lower the
standard requiring that there be probable cause before an arrest
is made, nor increase the potential for false arrests; instead,
what would change is that law enforcement officers would be
better able to address public safety issues immediately under
certain circumstances.
CAPTAIN NANKERVIS also noted that when an arrest is made, it
doesn't necessarily mean that the person is actually put in
jail; instead, law enforcement officers might simply take the
perpetrator to the police station and issue him/her a ticket
before releasing him/her. Expressing a preference for having
the bill apply to all misdemeanor crimes so that it would also
address [certain] property crimes, he, too, noted that an arrest
would not be mandatory under the bill. Furthermore, there are
already procedures in place to address abuses of law
enforcement's arrest authority, he remarked, and offered his
belief that law enforcement officers already have a pretty good
idea about what needs to be done in order to maintain public
safety, and that HB 171 would assist in those efforts. In
response to a question, he relayed that whether an assault
warrants a misdemeanor charge or a felony charge depends on the
severity of the injury sustained by the victim, and on the
severity of assaultive behavior.
1:51:50 PM
LAREN J. ZAGER, Chief, Fairbanks Police Department (FPD), City
of Fairbanks, ventured that proof of the value of HB 171 lies
with existing law, specifically the laws pertaining to the
crimes of domestic violence (DV) and driving under the influence
(DUI); years ago, the legislature determined that the state
needed to more effectively and more efficiently address
situations involving DV and DUI, and so provided law enforcement
officers with the authority to arrest in those situations based
on probable cause. House Bill 171 would merely be an extension
of that authority, and wouldn't require law enforcement officers
to change their probable-cause standards, or interfere with
their existing discretion to determine whether an arrest should
be made in any given case. An arrest would not be mandatory
under HB 171, and it has the potential for making law
enforcement more efficient while also being of benefit to the
public.
MR. ZAGER then pointed out that there is a distinction between
arresting a person and charging a person; one could be arrested
but not charged, and one could be charged but not arrested.
Under HB 171, a law enforcement officer would be allowed to
establish whether a particular person is going to be a danger to
himself/herself or others, and then, if the existing probable-
cause standards are met, put the person in handcuffs and take
him/her to jail; the bill wouldn't affect law enforcement's
ability to charge the person with a misdemeanor, but it would
sure affect law enforcement's ability to take the perpetrator
out of play for whatever period of time is necessary to ensure
the safety of the public. In conclusion, he said he supports
HB 171, though he wishes it applied to "virtually all
misdemeanors."
1:55:32 PM
PAGE DECKER, Assistant Chief, Juneau Police Department (JPD),
City & Borough of Juneau (CBJ), relayed that he has worked as a
police officer in other states that have had laws similar to
that being proposed by HB 171, and considers such laws to be
great tools, adding that he has not seen them abused, surmising
that that's due to the training law enforcement officers receive
and the internal systems that are in place to deal with abuses.
He then provided members with a handout listing those similar
laws. Characterizing the law proposed by HB 171 as a critical
tool, he opined that Alaska's law enforcement officers need it
in order to succeed in their mission of keeping the peace.
Without the ability to bring control to disorderly-conduct
incidents without the assistance of a willing citizen,
communities can't be assured that their law enforcement officers
will be effective when called upon for help, particularly given
that in such [misdemeanor] cases, law enforcement officers have
no more authority than any other citizen to arrest a perpetrator
of violence. Without adoption of HB 171, there will continue to
be no immediate consequence for those who choose to [violently
misbehave].
1:58:51 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said that officially, the DPS is neutral on HB 171,
though it agrees with the comments made by the previous
testifiers. Regardless that HB 171 might slightly increase the
number of arrests made by law enforcement officers, the DPS
anticipates that the additional time required to make those
arrests would be offset by a reduction in the officers'
workloads because they would no longer need to be continually
responding to the same scene, and by a reduction in the number
of subpoenas and warrants issued. Law enforcement officers in
rural areas of the state would also benefit by the adoption of
HB 171 because it's not always possible for them to contact a
judicial officer immediately [in order to obtain a warrant].
2:00:15 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), said that
HB 171 raises concerns for the PDA because the bill in essence
bypasses any review of the arrest decisions made in [certain
misdemeanor] cases, even those with no exigency requiring
immediate arrest. He predicted that under the bill, arrests
without sufficient probable cause would occur. Furthermore, as
currently written, HB 171 would apply to some very low-level
misdemeanor offenses against a person, and this, too, is of
concern to the PDA, he indicated; for example, the crime of
reckless endangerment could [perhaps] involve something as
simple as driving too fast on an icy road and not being able to
stop at a stop sign.
2:02:57 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), in response
to a question, said that the DOL's concerns regarding HB 171 -
as expressed in a letter dated February 7, 2011 - have been
significantly alleviated by the bill's limited application to
only the aforementioned misdemeanor offenses against a person
instead of to all misdemeanors. She said she shares the PDA's
concern that the bill would allow an arrest for an offense
committed outside the officer's presence even in cases that
don't involve exigent circumstances. In conclusion, she
acknowledged, though, that the examples such as the one shared
by Lieutenant Sell illustrate how legislation such as HB 171
could provide a useful tool for law enforcement.
CHAIR GATTO indicated a belief that with very few exceptions,
most law enforcement officers, given all their training,
probably wouldn't abuse the bill.
CHAIR GATTO, after ascertaining that no one else wished to
testify on the bill, closed public testimony, and relayed that
HB 171 would be held over.