Legislature(2009 - 2010)BUTROVICH 205
04/15/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB348 | |
| HB381 | |
| HB324 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 36 | TELECONFERENCED | |
| += | HB 324 | TELECONFERENCED | |
| + | HB 348 | TELECONFERENCED | |
| + | HB 381 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 381-SELF DEFENSE
9:31:52 AM
CHAIR FRENCH announced the consideration of HB 381.
REPRESENTATIVE MARK NEUMAN, sponsor of HB 381, said the bill has
undergone changes since it was introduced. Ms. Carpeneti, who is
with the Department of Law, brought several concerns to his
attention and the proposed committee substitute was drafted to
address those concerns.
The current statute says there is no duty to retreat on premises
that you own or lease, where you reside, or where you're a
guest. The bill expands that to include anyplace you have a
legal right to be. While the bill proposes to amend AS
11.81.335(b), subsection (a) provides the justifications.
9:34:10 AM
REPRESENTATIVE NEUMAN said 16 states have tried to clarify where
a person can be and legally defend him or herself because there
has been confusion about that. The current law says that you
must retreat if you're able to do so safely, but that's asking
for a snap decision in a panic-filled moment. You have a right
to defend yourself in your home and the bill proposes to extend
that right to a street or a park or anywhere you have a legal
right to be. "Did you use deadly force? It better be justified,"
he said.
REPRESENTATIVE NEUMAN reported that current Alaska law permits
the use of deadly force in self defense and a few instances of
murder, rape, kidnapping, physical injury, or robbery. HB 381
tries to allow you to defend yourself before that happens. "If
you're involved in one of those situations, you can defend
yourself right now, but it's before that happens. That's the
critical part," he said.
The title is very clean and clear: "An Act relating to self
defense in any place where a person has a right to be."
9:37:21 AM
CHAIR FRENCH asked if he believes that anyone ever has a duty to
retreat and how he views that as comporting with the right to
use deadly force.
REPRESENTATIVE NEUMAN replied a duty to retreat means that you
should try to escape a situation if you're able to do so. Most
reasonable people would do that. If you find that you have to
defend yourself with deadly force, Alaska law says you have that
right but only if you're in your home or place of work. HB 381
proposes to extend that right to other locations where you have
a legal right to be.
9:39:58 AM
SENATOR COGHILL said he agrees that the duty to retreat is a
serious duty but he wonders about the legal protections a person
might have when they're faced with very aggressive behavior and
they have to make a split-second decision. He asked if there's a
problem now where the burden to retreat is on the victim rather
than on the perpetrator.
REPRESENTATIVE NEUMAN said it is a problem because Alaska law
says you must retreat if you know you can do so with complete
safety. He said his measure is to ask if you were justified in
using deadly force.
SENATOR COGHILL said part of the concern is with aggressive
behavior and the other part is that a split second decision is
easily deliberated in court, but it wasn't made under that
circumstance. He asked if the duty to retreat had been tested in
court enough to understand how it falls out.
REPRESENTATIVE NEUMAN reiterated that 16 states have passed
similar legislation. He relayed that his staff informed him that
the duty to retreat is only a legal issue after it's established
that deadly force was justified.
SENATOR COGHILL reiterated that it would be interesting to know
how the court has interpreted the law.
9:45:27 AM
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), confirmed that in the state of Alaska you absolutely have
the right to self defense. It is not an affirmative defense. It
is part of the state's case to prove that the defendant did not
act in self defense. If the state fails to prove that using
force was not in self defense, the state never gets to a defense
case because a judgment of acquittal could be entered. Because
of that, you never see cases where self defense was obvious; the
person isn't charged.
HB 381 and similar laws have been characterized as stand-your-
ground laws - and this is a trend - but it's not about standing
your ground. It's about shooting first. Prosecutors nationwide
are opposed to this type of law and the Alaska Department of Law
is similarly opposed. It promotes and condones a level of
violence that may not have been necessary. Self defense is
complicated law; in a trial if there is any evidence whatsoever
that there may have been self defense, the jury must be given
instructions about self defense and can consider that. This
proposal pertains just to the use of deadly force. This is a
situation where a human life was taken.
9:48:21 AM
MS. MCLEAN explained that in common law there was a duty to
retreat. In Medieval times that meant that a person had to
retreat to the wall before using deadly force. This law is old
and long-standing because human life is sacred. A life shouldn't
be taken lightly and it shouldn't be taken when it's not
necessary. As the sponsor said, most reasonable people would
retreat, but HB 381 says they don't have to act reasonably and
retreat. "That's why we're so greatly opposed to it," she said.
Current law says there is no duty to retreat in the home or
other enumerated places. But the premise is that if you know can
retreat with complete safety, then you may not use deadly force.
That rule applies in every location but a person's castle -
their home.
MS. MCLEAN clarified that DOL's view of "knowing" is that if a
person says that in the heat of the moment they didn't know they
could retreat with complete safety, then the person has a
defense. The jury may agree that the person didn't see that he
could retreat with safety; therefore his belief was reasonable;
therefore his use of deadly force was justified - even if
displaced.
The sponsor and others have said that this legislation would
spare people the burden of coming to court if the situation is
close. "I would submit to you that's a bad reason," she said.
This is about taking a human live balanced against why it had to
happen.
9:51:37 AM
MS. MCLEAN said it's easy to think about this in personal terms
and that as a law abiding citizen you should be able to defend
yourself if someone is aggressive and you're afraid. The law is
on your side in that instance and DOL supports that. But this
legislation will apply to people who are not law abiding. It
will apply to gang members who would have a defense for shooting
on sight were this legislation to pass. She cited a hypothetical
example.
CHAIR FRENCH asked what happens when a bullet that's aimed and
fired in self defense doesn't hit the intended target but an
innocent bystander.
MS. MCLEAN said if self defense was justified, then the fact
that an innocent bystander was killed is justified. It's a
complete defense; you're not guilty.
Florida was the first state to pass a similar law in 2005 and a
recent University of Miami law review article concluded that
it's difficult to measure what isn't getting charged. The author
talked about the scenario of two gang members and an innocent
nine-year-old child who was shot and killed. Both shooters
raised self defense and both were acquitted.
GRIS SMITH, President, Alaska Pyrotechnic Guild, said the
organization is 100 percent in support of HB 381. Today it seems
that crooks have all the legal rights while victims have minimal
rights. This bill evens the score, he said.
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