Legislature(2009 - 2010)CAPITOL 120
03/15/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB71 | |
| HB381 | |
| HB355 | |
| HB115 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 381 | TELECONFERENCED | |
| += | HB 71 | TELECONFERENCED | |
| += | HB 115 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 355 | TELECONFERENCED | |
HB 381 - SELF DEFENSE
1:17:12 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 381, "An Act relating to self defense."
1:17:55 PM
REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, sponsor,
explained that HB 381 came about because of a concern from the
National Rifle Association (NRA) that some of Alaska's laws may
not protect Alaskans' rights. He offered his understanding that
the Department of Law (DOL) has suggestions as to areas of the
law needing to be reviewed. He requested that the legislation
not be moved today in order that all involved can craft
appropriate legislation.
1:20:21 PM
JIM ELLIS, Staff, Representative Mark Neuman, Alaska State
Legislature, on behalf of the sponsor, Representative Neuman,
explained that the sponsor had received some concern from
constituents and the NRA with regard to existing state law that
specifies an individual has a duty to retreat when he/she knows
it can be achieved with complete personal safety to the
individual and others. The concern, he specified, is that an
individual who is under the severe stress of a self-defense
situation has to make a decision as to how a court or jury
[would view their actions of self defense]. The sponsor views
the aforementioned as an undue burden on a law-abiding citizen
and believes the best way to address the situation is the
proposed provision specifying that the individual doesn't have a
duty to retreat, which would also serve as a deterrent to
criminals. There are guidelines, he noted, in terms of the
crimes [to which the provision applies]. The sponsor feels that
Alaskans have used the current law responsibly and expansion of
it should be considered. Mr. Ellis explained that the
legislation also intends to extend that an individual doesn't
have a duty to retreat when an individual uses deadly force in
the burglary of his/her home, but there would need to be proof
that the use of force was reasonable. This would also be the
case with carjacking of an occupied vehicle. He acknowledged
that the legislation may need to be amended to better reflect
the aforementioned intent.
1:24:55 PM
REPRESENTATIVE NEUMAN added that he wants to clarify that if an
individual arrives at his/her home or awakes at his/her home to
another individual in the home, the individual [homeowner]
should be able to assume that individual could cause harm to the
individual or his or her family. The individual should have the
full rights to protect oneself as deemed necessary. He reminded
the committee of the situation in which a church in Big Lake had
been robbed multiple times. The church had alarms and motion
sensors that [alerted] the minister [of a potential robbery].
The minister, pistol in hand, went to the church and encountered
the armed perpetrators who he shot. The minister went to court
to defend his actions. Representative Neuman opined that
Alaskans should have the right to protect themselves and their
family without having to rely on a jury to determine whether the
individual could've escaped or fled the area.
1:27:15 PM
REPRESENTATIVE LYNN surmised that under HB 381 he wouldn't have
to be in fear of his life or that of anyone else in the home in
order to use deadly force against an individual who has invaded
his home.
REPRESENTATIVE NEUMAN said if he found someone in his home, he
would assume that the intruder was going to cause harm to
himself or his family. [Alaskans] should be able to protect
their homes and properties.
REPRESENTATIVE LYNN asked whether he would have to meet the
"fear" requirement prior to using deadly force. Representative
Lynn recounted a situation in which he was attending a potluck,
during which he went to his car to retrieve something. Upon
returning to the potluck, he inadvertently entered the wrong
house. In that situation, he asked whether the individual in
the wrong house could have used deadly force, under HB 381.
MR. ELLIS clarified that his understanding is that HB 381 would
apply in the case of burglary, which entails "breaking and
entry." He related his further understanding that if the door
is open, it would be a different case.
REPRESENTATIVE LYNN expressed the need to address the
aforementioned [situation].
1:29:58 PM
REPRESENTATIVE GATTO posed a situation in which a homeowner
sleeping upstairs hears a noise downstairs. The homeowner
retrieves his/her gun and proceeds downstairs to investigate.
At the instant the burglar sees the homeowner, the burglar exits
the home at which time the homeowner shoots the burglar in the
back. He asked if the aforementioned action would be
justifiable.
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]
1:30:43 PM
MR. ELLIS answered, "Our intent is not necessarily that if
they're fleeing, escaping you, ... but we do not want to
necessarily second judge the actions of a person within their
own home." He noted that in the dark of night it may not always
be clear whether an intruder is fleeing or reaching for a
weapon.
REPRESENTATIVE GATTO remarked that he foresaw many special
cases. He questioned whether a vehicle, a public park, a
sidewalk, or any other place an individual has a right to be
would be considered an extension of an individual's home. He
related that he is uncomfortable with allowing it to be
sufficient for an individual who feels threatened in a place
he/she has a right to be to shoot. He opined that there are
unintended consequences to this extension [or rights]. He asked
if it's not intending to harm others in the process of an
individual protecting himself/herself could be used as a
defense.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
1:33:26 PM
REPRESENTATIVE NEUMAN replied that the aforementioned isn't a
defense and the legislation doesn't try to make it a defense.
The legislation merely attempts to provide more clarity on this
issue. He again relayed that DOL has indicated there is room
for improvement with this legislation.
CHAIR RAMRAS reminded the committee that the sponsor wants to
bring forward the legislation for discussion regarding how to
improve it.
1:34:57 PM
REPRESENTATIVE GRUENBERG referred to page 2, line 27, and
suggested that the language be reviewed because he said he has
never viewed language specifying that a type of evidence doesn't
apply. He further suggested that it's possibly a typographical
error.
MR. ELLIS agreed to research that point further.
1:36:07 PM
BRIAN JUDY, Alaska Liaison, National Rifle Association (NRA),
characterized HB 381 as simple legislation that provides
protection and assurance that an individual doesn't have to
retreat when he/she is lawfully in a place and feels threatened.
Existing Alaska law already specifies that an individual has no
duty to retreat if an individual is "on premises which the
person owns or where the person resides or in a building where
the person works." From NRA's perspective, the primary
component of HB 381 would extend that no duty to retreat to the
individual's vehicle as well as any place where an individual
has a legal right to be. Mr. Judy pointed out that under the
proposed language of HB 381, in a situation in which an
individual is walking down the street and a rapist tries to drag
the individual in the alley or a kidnapper tries to drag an
individual into his/her car, the individual has no duty to
retreat. Furthermore, if the individual so chooses, he/she can
fight back with force. He characterized the aforementioned as
common sense. Mr. Judy emphasized that law-abiding citizens
shouldn't fear criminal prosecution when he/she stands his/her
ground and defends himself/herself when at a place he/she has a
legal right to be. In conclusion, Mr. Judy urged support for HB
381.
CHAIR RAMRAS noted that the committee packet includes a
compelling letter from DOL regarding concerns with HB 381.
1:40:01 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, apologized for
the late delivery of the letter and fiscal note. Ms. Carpeneti
related that DOL is confused and concerned about HB 381, which
DOL reads as contributing to violence in Alaska. Under current
law, an individual only has the duty to retreat if the
individual knows that he/she can retreat with complete safety to
the individual and others. In response to Chair Ramras, Ms.
Carpeneti said that she doesn't understand the problem being
addressed by HB 381. She characterized the state's existing
self-defense law as fairly strong. She pointed out that
individuals don't have to retreat in a number of places,
including one's home, vehicle, and place of business. However,
if the law is changed to every place an individual has a right
to be, then it's every place unless an individual is trespassing
or burglarizing a place. She expressed concern about removing
the duty to retreat under those circumstances.
MS. CARPENENTI opined that Section 2, the prima facie evidence
provisions, would encourage vigilantism because there is no time
limit. For instance, an individual could use deadly force two
hours after an individual burglarized his/her house rather than
call the police. After discussions with the sponsor's staff,
Ms. Carpeneti surmised that wasn't the intention. The
department is also concerned by the arrest provisions because
those provisions mean that a police officer can't make an arrest
without making a complicated legal decision regarding whether
the law of self defense would apply. For example, in a gang
situation wouldn't it be best to get everyone off the street and
then determine the details [with regard to whether self defense]
applies.
MS. CARPENETI, in response to Chair Ramras, specified that DOL
had the following three primary concerns. Firstly, HB 381
deletes the requirement to retreat in Alaska, even when
retreating can be done in complete safety and the individual
knows that. Secondly, the provisions related to prima facie
evidence are of concern. She explained that one must remember
that the state, the prosecution, is required to disprove self
defense beyond a reasonable doubt and the prima facie evidence
considerations will make it that much harder to do so. The
sponsor's concern, she related, was that a law-abiding person
who didn't retreat would have to prove that he/she shouldn't
have had to retreat. However, that's not the way it works;
instead the state must disprove, beyond a reasonable doubt, that
the law-abiding person didn't have a duty to retreat. Thirdly,
the legislation specifies that a law enforcement official may
not make an arrest until it's determined that self defense
applies. The aforementioned is difficult to determine, even in
the quiet of an office with the law and the facts. She opined
that requiring this of law enforcement is asking too much,
particularly since the situation is often one in which the
police officer needs to stop the behavior, make an arrest, and
then later decide who the charge should be appropriately levied
against.
1:46:00 PM
MS. CARPENENTI, in regard to the sponsor's suggestion, said that
she would be happy to work with the sponsor and Mr. Judy on this
legislation.
1:46:24 PM
REPRESENTATIVE NEUMAN offered that people are being arrested
after defending themselves. After being arrested, these
individuals have to prove they didn't have a way to escape,
which is often left to the jury to decide. Representative
Neuman related that the goal with HB 381 is to not arrest
individuals who have defended themselves.
CHAIR RAMRAS surmised then that the legislation attempts to
address those situations in which an individual who felt he/she
was being attacked and defended himself/herself ultimately ended
up in trouble in court.
REPRESENTATIVE NEUMAN indicated that to be the case and reminded
the committee of the earlier mentioned real situation of the
minister in Big Lake.
REPRESENTATIVE GATTO agreed with Representative Neuman's earlier
point that a fleeing individual may be doing so simply to
reload.
1:50:07 PM
REPRESENTATIVE HOLMES offered her understanding that under
current law, there would be no duty to retreat in a situation in
which the individual believes the fleeing individual is merely
moving to a location to reload. In such a situation, it would
still be considered self defense.
MS. CARPENETI concurred. In response to an earlier question,
Ms. Carpeneti stated that one doesn't have to be afraid under
current law. Deadly force, so long as it's reasonable under the
circumstances, can be used in one's own home to terminate a
burglary. In response to Representative Gatto, Ms. Carpeneti
reiterated that the state must disprove self defense beyond a
reasonable doubt.
MR. JUDY acknowledged that it's a fine line in these situations.
The notion that self defense must be disproved beyond a
reasonable doubt is contrary to the fact that when the state is
doing so, the individual who utilized self defense is in court.
Furthermore, the individual has likely hired an attorney, been
in prison for some time, and is a defendant in a court of law.
The desire is to prevent the aforementioned. "We don't want a
victim to be victimized a second time by the criminal justice
system," he opined. He mentioned that he would be happy to
continue to be involved in a dialogue to define this fine line.
1:53:49 PM
REPRESENTATIVE GRUENBERG suggested the need to research the laws
of other states on this matter.
REPRESENTATIVE DAHLSTROM noted her support of the sponsor's
intent. She then inquired as to the outcome of the situation in
which the minister encountered a burglary at his church.
REPRESENTATIVE NEUMAN answered that the minister was found
innocent, but only after he expended a tremendous amount of
money [in the case], was imprisoned for a time. Furthermore, it
upset his family and his life.
1:55:15 PM
CHAIR RAMRAS encouraged DOL, Mr. Judy, and the sponsor to work
on HB 381.
[HB 381 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 1 HB 381 Sponsor Statement HJUD.pdf |
HJUD 3/15/2010 1:00:00 PM |
HB 381 |
| 3 HB381 Sectional Analysis.pdf |
HJUD 3/15/2010 1:00:00 PM |
HB 381 |
| 4 HB381 AS 11 81 335.pdf |
HJUD 3/15/2010 1:00:00 PM |
HB 381 |