03/28/2011 01:00 PM House JUDICIARY

               HB 171 - ARRESTS FOR MISDEMEANORS                                                                            
                                                                                                                                
2:03:41 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO announced  that the final order of  business would be                                                               
HOUSE BILL NO. 171, "An  Act relating to arrests without warrants                                                               
by peace officers for certain misdemeanors."                                                                                    
                                                                                                                                
2:04:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES   made  a   motion  to   adopt  Conceptual                                                               
Amendment 1, which read [original punctuation provided]:                                                                        
                                                                                                                                
     Page 2, line 5                                                                                                             
          following "AS 11.41":                                                                                                 
               Insert "and there is reasonable cause to                                                                         
     believe   arrest  without   warrant   is  a   practical                                                                    
     necessity  to prevent  imminent  physical  harm to  the                                                                    
     public"                                                                                                                    
                                                                                                                                
CHAIR GATTO objected.                                                                                                           
                                                                                                                                
REPRESENTATIVE HOLMES ventured that  Conceptual Amendment 1 would                                                               
address the  concerns raised  during HB  171's last  hearing that                                                               
the  bill would  allow  warrantless arrests  for all  misdemeanor                                                               
offenses against a  person, even very low-level  offenses such as                                                               
reckless endangerment, and those  wherein no additional danger to                                                               
the public exists if someone isn't arrested.                                                                                    
                                                                                                                                
2:07:30 PM                                                                                                                    
                                                                                                                                
KENDRA KLOSTER,  Staff, Representative Cathy Munoz,  Alaska State                                                               
Legislature,  on  behalf  of  Representative  Munoz,  sponsor  of                                                               
HB 171  by request,  in response  to a  question, indicated  that                                                               
many  other  states   do  allow,  to  some   degree  or  another,                                                               
warrantless  arrests for  certain misdemeanor  offenses committed                                                               
outside the  presence of an  officer.  The sponsor,  she relayed,                                                               
feels  that when  a person  [poses  a danger  to others,]  he/she                                                               
should be  removed from the [vicinity].   Similar to the  laws in                                                               
some  other  states,  HB  171  would  only  apply  in  situations                                                               
involving  a misdemeanor  offense against  a person.   She  noted                                                               
that members'  packets contain a memorandum  by Legislative Legal                                                               
and   Research   Services   detailing  the   specifics   of   the                                                               
warrantless-arrest authority granted in other states.                                                                           
                                                                                                                                
REPRESENTATIVE   KELLER   expressed   concern   that   Conceptual                                                               
Amendment  1 wouldn't  actually narrow  the bill  much, and  that                                                               
insufficiently-trained law  enforcement officers could  still end                                                               
up abusing the arrest authority granted by the bill.                                                                            
                                                                                                                                
MS. KLOSTER relayed that the concept  of HB 171 was brought forth                                                               
by  the  Juneau  Police  Department (JPD),  and  that  other  law                                                               
enforcement organizations  throughout Alaska have  also requested                                                               
the type  of warrantless-arrest authority the  bill would provide                                                               
for.   The  goal, however,  is  to sufficiently  narrow the  bill                                                               
while  still giving  law enforcement  officers  an adequate  tool                                                               
with which to address situations  that involve imminent danger to                                                               
the public.   She offered  her understanding, and hope,  that law                                                               
enforcement officers  already receive  the training  necessary to                                                               
make  determinations about  whether  there is  probable cause  to                                                               
make an arrest  and whether the behavior  in question constitutes                                                               
an offense against a person.                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRUITT expressed  concern  that the  warrantless-                                                               
arrest authority being granted by  the bill would still be abused                                                               
regardless of the training law enforcement officers receive.                                                                    
                                                                                                                                
2:15:51 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency (PDA), Department of Administration  (DOA), in response to                                                               
a question,  paraphrased portions of AS  11.41.250, AS 11.41.230,                                                               
and AS  11.41.220 to  illustrate what  kinds of  activities could                                                               
constitutes the misdemeanor crime  of reckless endangerment, what                                                               
kinds  of activities  could constitute  the misdemeanor  crime of                                                               
assault in the fourth degree,  and what kinds of activities could                                                               
constitute the felony crime of assault in the third degree.                                                                     
                                                                                                                                
REPRESENTATIVE  LYNN  [speaking  as   a  former  law  enforcement                                                               
officer]  opined that  police officers  are already  cognizant of                                                               
the   substantial  consequences   of  making   a  false   arrest,                                                               
particularly given  that anytime  they are called  to a  scene or                                                               
come  across a  situation, they  are faced  with the  decision of                                                               
whether  or not  to  arrest somebody  -  such decision-making  is                                                               
already part of their job.                                                                                                      
                                                                                                                                
MR. STEINER,  in response to  a question, said that  the language                                                               
of Conceptual Amendment  1 does appear to  "reduce the discretion                                                               
in a definable way, to kind of  mimic what the other parts of ...                                                               
[AS 12.25.030(b)] are  getting at, which is  inferred exigency or                                                               
some necessary  reason for concluding  that if  something doesn't                                                               
happen  now,  the public's  at  risk";  in so  doing,  Conceptual                                                               
Amendment  1 somewhat  targets one  of the  concerns he  has with                                                               
HB 171.   He pointed  out, however, that  a police  officer would                                                               
still have  to make  a judgment call  regarding whether,  at that                                                               
moment,  there's a  practical reason  for trying  to control  the                                                               
situation by making an arrest.   Furthermore, because there is no                                                               
statutory  time limit  by  which  the state  must  act to  indict                                                               
someone arrested  for a misdemeanor  offense, such cases  tend to                                                               
go on  quite a bit longer  without judicial or state  review than                                                               
what occurs with a felony case,  which, by statute, must be acted                                                               
upon  within   10  days  of   the  person  being  put   in  jail.                                                               
Theoretically,  therefore,  adoption  of Conceptual  Amendment  1                                                               
would  limit the  proposed warrantless-arrest  authority to  only                                                               
those  situations in  which there  is  a physical  danger to  the                                                               
public if  someone isn't arrested, thereby  mitigating the bill's                                                               
potential   to  further   increase  law   enforcement's  already-                                                               
substantial misdemeanor workload.                                                                                               
                                                                                                                                
REPRESENTATIVE  HOLMES   -  in  response   to  questions/comments                                                               
regarding Conceptual  Amendment 1's use of  the phrase, "imminent                                                               
physical  harm to  the  public"  - indicated  that  she would  be                                                               
amenable to  replacing that language  with the  phrase, "imminent                                                               
physical harm to a person".                                                                                                     
                                                                                                                                
2:23:36 PM                                                                                                                    
                                                                                                                                
GERALD  LUCKHAUPT,  Assistant  Revisor of  Statutes,  Legislative                                                               
Legal   Counsel,  Legislative   Legal   and  Research   Services,                                                               
Legislative  Affairs Agency  (LAA),  as the  drafter  of HB  171,                                                               
concurred that  Conceptual Amendment 1 would  narrow the [arrest]                                                               
discretion  that   would  be  available   under  the   bill,  and                                                               
acknowledged  that  in   some  situations  involving  misdemeanor                                                               
offenses  against  a  person,  law  enforcement  officers  simply                                                               
aren't going  to be able to  show that physical harm  would occur                                                               
absent an  immediate arrest.  He  added that he would  be able to                                                               
draft   appropriate    replacement   language    for   Conceptual                                                               
Amendment 1.  In  response to questions and  comments, he offered                                                               
his  understanding that  the fact  of an  arrest does  stay on  a                                                               
person's  record  even  if  he/she   isn't  convicted;  that  for                                                               
purposes of  the criminal justice  system, juveniles  are treated                                                               
differently than  adults and by  statute cannot be held  in adult                                                               
jails;  that law  enforcement officers  must still  have probable                                                               
cause to  make an arrest  regardless of  what the offense  is and                                                               
HB 171 wouldn't  change that;  and that  with the  other offenses                                                               
for which law enforcement officers  are already permitted to make                                                               
a  warrantless  arrest without  having  witnessed  the offense  -                                                               
whether felony or misdemeanor -  officers are already making such                                                               
probable-cause determinations.   In conclusion, he  surmised that                                                               
law  enforcement officers'  responsibility to  make good  choices                                                               
and apply their training would  somewhat increase under the bill,                                                               
which currently  addresses seven  misdemeanor offenses  against a                                                               
person.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  KELLER indicated  that  he'd  been considering  a                                                               
conceptual amendment  that would  allow for a  warrantless arrest                                                               
for  the  crimes addressed  by  the  bill  [only] if  the  victim                                                               
expressed or claimed  fear of being in imminent  danger absent an                                                               
arrest of the alleged perpetrator.                                                                                              
                                                                                                                                
REPRESENTATIVE  PRUITT,  referring   to  testimony  heard  during                                                               
HB 171's  last  hearing,  offered   his  understanding  that  law                                                               
enforcement  officers  are in  favor  of  the bill  because  they                                                               
believe  that  their  current inability  to  make  a  warrantless                                                               
arrest  for   certain  misdemeanor  offenses  against   a  person                                                               
committed outside their presence does  put the public in imminent                                                               
danger.                                                                                                                         
                                                                                                                                
CHAIR GATTO,  in response  to a  question, surmised  that [having                                                               
the  warrantless-arrest authority  proposed by  the bill  for the                                                               
misdemeanor  offenses outlined  therein] would  better allow  law                                                               
enforcement  officers to  put  end to  whatever  crisis they  are                                                               
responding to.                                                                                                                  
                                                                                                                                
REPRESENTATIVE PRUITT indicated disfavor  with the bill's current                                                               
language.                                                                                                                       
                                                                                                                                
CHAIR GATTO  relayed that  HB 171  would be  held over  [with the                                                               
motion to adopt Conceptual Amendment 1 left pending].