Legislature(1995 - 1996)
04/22/1995 11:12 AM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 200
HB 293 - USE OF FORCE DEFENDING PERSON OR PROPERTY
REPRESENTATIVE VEZEY, bill sponsor, introduced HB 293. It is
intended to change a tendency we are seeing in the direction the
law is going. It has been a premise in this country for many
years, that a person's home is their castle, and that a person has
the right to feel safe and secure in their home. There have been
an increasing number of court decisions which have limited a home
owner, or a rightful occupant of a home the right to protect
themselves in their home, to the point where in some court rulings,
you virtually have to avoid confrontation if it is at all possible,
which puts an extreme burden of proof on the rightful occupant of
a home, if they are facing an intruder. It is the intent of this
bill to clarify that a person has a right to defend themselves,
their family and their home. The burden of proof in this would
shift to the intruder having to prove that the use of force or
deadly force was just not justified. We do not have a Supreme
Court decision in the State of Alaska that is contrary to this. We
have had a lower court ruling that was contrary to that. In many
states, we are seeing the law evolve more toward the rightful
occupant having to avoid the use of force if it is at all possible.
This puts a tremendous burden of proof upon the rightful occupant
of a home. He felt the burden of proof ought to be on the person
who is not rightfully there. He felt the rightful occupant of a
home should have the right to exceed the right of the intruder who
is violating the law.
REPRESENTATIVE FINKELSTEIN was not real familiar with the current
rules we operate under, and would like the Department to explain
those. What is an example of a particular circumstance that is not
covered under existing law?
REPRESENTATIVE VEZEY did not feel this legislation to be contrary
to any decisions that have come down from the Supreme Court. It is
contrary to some appeals court decisions, which establishes that
force has to be avoided if at all possible.
REPRESENTATIVE FINKELSTEIN asked for a hypothetical example where
someone would now be possibly subject to prosecution for shooting
an intruder, that this change would make it so that they would not
be subject to prosecution.
REPRESENTATIVE VEZEY said if you look at the sponsor statement,
there are a number of nationwide cases that are cited. There was
a case a court of appeals decision in the State of Alaska called
Van Ha v. the State of Alaska, Alaska Court of Appeals, Op. No.
1400, March 31, 1995. In that case, the opinion stated that a
defendant claiming self defense in justification for the use of
force, must prove that he/she acted to avoid use of force. What
this bill would do is to say that a rightful owner of a home would
no longer have to prove anything. It would be up to the intruder
to prove that the rightful occupant of the home was not justified
in their actions.
REPRESENTATIVE FINKELSTEIN was trying to recall the case where a
Japanese student got shot because it was Halloween.
REPRESENTATIVE VEZEY believed that case occurred in the State of
Louisiana.
CHAIRMAN PORTER did not believe the victim was inside the home.
REPRESENTATIVE FINKELSTEIN remembered that they were on the
doorstep, on the property, and they were shot because the person
believed they were a danger but did not have a weapon, and this
would take the burden and switch it from the home owner to the
student, in this case.
REPRESENTATIVE VEZEY said he could not give a hypothetical answer
in that case, because those decisions were made by a jury. This
bill requires an unlawful entry, so he did not feel that fact
situation would be covered by this bill.
CHAIRMAN PORTER said this bill requires unlawful entry, so he did
not think that fact situation would be covered by this bill. We
have someone from the Department of Law and also Public Safety to
testify.
LAURIE OTTO, Assistant Attorney General, Criminal Division,
Department of Law, spoke in opposition to the bill. It would be
very difficult to overstate their opposition to this bill, and in
listening to the sponsor she felt that the bill goes far beyond
what she hears the sponsor describing as his intent. The sponsor
talked about what sounded to her like civil actions against the
owner by a person who was shot by the owner or the family of the
person who was shot by the owner. This bill applies in criminal
prosecutions as well. The information the sponsor has been given,
both about the Van Ha case, and about the burden of proof, is
incorrect.
Ms. OTTO described what occurred in the Van Ha case. It was a
Dillingham case involving two Vietnamese fishermen. The guy who
ended up getting killed went over to the house of the person who
was eventually prosecuted. They were drinking together and got
into a fight and the person who was killed beat up the person who
ended up being the defendant, and then left. The defendant started
thinking about this and thinking it was not right, and thinking
that this guy should not have been able to beat him up, and
thinking about threats that he had made to him. So the next day,
the defendant got a shotgun and started stalking the person who had
beat him up, tracked him down, shot him nine times in the back.
This was many many hours after the altercation that started him
thinking about killing the person. What the court said had nothing
to do with being in the house or killing somebody in the home, or
the burden of proof. The ruling in that case, said you cannot
claim self defense when there is no eminent threat of harm. That
is not something that would be changed in this bill, it is
something that is inherent in the definition of force in our
statutes, which requires that there be an eminent threat of harm.
That case does not have anything to do with somebody being able to
use self defense in their home. She felt if somebody told
Representative Vezey that, he was given misinformation.
MS. OTTO said this does not just address when you can use deadly
force in the house. It talks about all of the circumstances under
which you can use deadly force. She gave an example to make her
point. Her great great grandfather was a sheriff at the height of
the silver mining boom on the California Nevada border and ended up
dying in the line of duty, and so in her family, they have a lot of
stories about the code of the west, and how people were supposed to
behave. She admitted her personal favorite author is Louis Lamour,
but one of the things that was true of the code of the West was
that if somebody threatens to hit you or punches you in the nose,
and they are not armed, you cannot kill them. In the code of the
West you do not kill an unarmed man. This bill, if you look at
lines 8 through 13, right now under current law, you can use deadly
force if you reasonably believe that the use of force is necessary
to prevent any one of a number of serious crimes. What you see on
line 9 is that this expands it to say that you can use deadly force
against the threat of assault in any degree or any crime in AS
11.41. Section 3 is the section of the current statute that spells
out when you have a duty to retreat. Under current law, if you are
in your home, there is no duty to retreat, but under current law,
if you are in a public place, and you can retreat with complete
safety to yourself and to everybody else, you cannot use deadly
force. Under this bill, as a result of these proposed changes, if
you were standing outside of a police station with the doors
unlocked where you could go in at any time and somebody walked up
and said, "I am going to punch you in the nose," this would be
fourth degree assault which provides that by words or other
conduct, one places somebody in fear of physical injury, you can
kill them. If somebody commits the crime of custodial
interference, which is a crime against a person under 11.41, in
other words, you have a divorced couple and the wife keeps the kids
two hours past when she is supposed to turn them over to her
husband, under a joint custody agreement, and he goes over to her
house and says he wants the kids back and she says, "Let them
finish watching Sesame Street," he can kill her. If you have a
batterer situation, whoever is being battered can kill the other
person. This is an invitation to legitimate, legal, justifiable
homicide, in a vast array of circumstances that she just does not
believe from reading the sponsor statement or from listening to the
sponsor is what he intended.
MS. OTTO went through the sections of the bill that directly deal
with when you can use force in a dwelling. She gave another
example of a circumstance where it would be perfectly legitimate to
kill somebody under this bill. If a husband and a wife were
married for ten years and they own the house together, they lived
in it together and she got a domestic violence injunction against
him, and he decided he wanted to get back in and get his clothing
and waited until he saw her going to the store, and went in the
house, and she came back, she could kill him. The reason she
started by talking about Louis Lamour and the code of the West, and
all that, is because in our society, once we organized into cities,
and once we organized into states and into communities, what we did
is design a set of laws to resolve disputes, and hire police
officers to intervene to help solve disputes, and hire district
attorneys so what we would not have is people just killing each
other all the time because one of the things they found in the old
west is that people got caught in the crossfire very frequently.
If you make it legal to use guns, under a wide array of
circumstances, she guaranteed there would be innocent bystanders
being killed on a regular basis.
MS. OTTO closed by talking about the burden of proof which very
much concerned the sponsor. In criminal cases, once somebody
raises the defense of self defense by even the most minimal amount
of evidence, the state has the burden of proving beyond reasonable
doubt that it was not self defense. In the sponsor statement the
Paul case was cited. That was a case in which the court ruled that
even if the judge does not believe that there was self defense, if
the defendant raises it, he has to inspect the jury on self defense
and the prosecutor has to bear the burden of proving that it was
not self defense, and the prosecutor has to bear the burden of
proving beyond a reasonable doubt that it was not self defense.
She thought the burden of proof is in fact, not on the home owner
in criminal cases. That is not the case in civil cases, and
perhaps the sponsor's concern then is that the case related by
Representative Finkelstein and some of the other cases around the
country, from what she can see, are civil cases, where someone got
shot, or their families and there was a lawsuit. Perhaps the way
to address the issues is to try to do something in the civil arena,
but in the criminal context, the Department is very, very opposed
to this bill.
REPRESENTATIVE BUNDE said he is very sympathetic to what
Representative Vezey is trying to achieve. He has to agree that
the Van Ha case, which he followed very closely because he knew
some people on the jury and we discussed it only after it was over,
he was not sure that was a good example, but on the other hand he
has been in situations where he has been told by law enforcement
officials, and he has been in situations where he has anticipated
having to defend the lives of family and property, mostly family,
and he said if you have to shoot someone, and they fall outside of
the house, run outside and pull them in, and you better make sure
that they are dead. Now that puts the burden of proof on the
aggrieved person. Maybe it is the civil thing that needs to be
addressed, but how do we protect people who are protecting
themselves?
MS. OTTO thinks the law does protect people that are protecting
themselves. Because there is such intense interest in homicide
cases on the part of both the community and family members, people
tend to run them by her before they decline prosecution, and we do
regularly decline prosecution on what would otherwise be homicide
cases, because somebody is claiming self defense. As a result, it
is the state's burden of proving that something was not self
defense. Her feeling is that we do not have a problem in Alaska.
Nobody has ever identified a case to her in which we did have a
problem, or prosecuted somebody inappropriately. Our criminal law
strikes a fair balance between the rights of the homeowner and the
rights of society.
REPRESENTATIVE BUNDE said he did not think the law enforcement
officials that he has talked to would agree with her.
MS. OTTO said she has actually heard those comments. The comments
she has heard are tied to people being afraid of being sued, and
not afraid of being prosecuted.
Number 600
DEL SMITH, Deputy Commissioner, Department of Public Safety, spoke
in opposition to HB 293. It seems to go far beyond what he hears
the sponsor intending in a home to the extent that there are any
number of misdemeanors, including assault that Ms. Otto referred to
that would allow the use of deadly force, we are opposed to opening
that up. A person claiming self defense and defending themselves
against an arrest that they perceived, does concern hi, because
there are circumstances where you could use non-deadly force to try
to prevent an arrest, but this might open Pandora's box and allow
deadly force. He would be concerned about that, though he has not
done enough research to determine that exactly. He is not as
eloquent as Ms. Otto was in this, but does oppose the bill as
written, for the reasons stated.
MR. SMITH added that he tried to arrange for the Anchorage Police
Department to testify but the witness slipped out of his grasp. He
had also indicated that they were opposed to this bill as currently
written. He agreed with the sponsor relative to the home, but he
feels that is adequately covered. In response to the comment about
dragging the body inside, he really does believe that probably
refers to a civil case, and making sure someone is dead so that
they cannot sue. He is not exactly sure that is absolute
professional advice, it may be frustration sometimes on the part of
an officer who might state that, but he certainly understands it.
REPRESENTATIVE BUNDE clarified that was not given to him on the
record and as official advice.
CHAIRMAN PORTER closed the public hearing on HB 293.
REPRESENTATIVE VEZEY said this is the only committee hearing in the
House, and is of course, the most appropriate committee. It is not
his intention to rush this through. He did spend a respectable
amount of time researching it and it is not intended to be a shell
of a potential statute, but he does recognize there could be other
facts that could be entering into this, and he asked if there could
be a subcommittee assigned to the bill.
CHAIRMAN PORTER said he would not be opposed to that idea, and
asked Representative Bunde and Representative Finkelstein if they
would be willing to look at it, with the sponsor most likely being
the chairman of the subcommittee. They agreed to do so.
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