Legislature(2005 - 2006)BUTROVICH 205
03/15/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB222 | |
| SB206 | |
| SB306 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 206 | TELECONFERENCED | |
| + | SB 306 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 222 | ||
SB 206-DETENTION OF MATERIAL WITNESSES
8:57:24 AM
CHAIR RALPH SEEKINS announced SB 206 to be up for consideration.
SENATOR GENE THERRIAULT moved version I as the working document
before the committee.
CHAIR SEEKINS objected for explanation.
SENATOR CON BUNDE, Bill Sponsor, informed the committee that the
chief of police in his district is frustrated by the fact that
officers are not able to temporarily detain crime scene
witnesses, particularly in "gang violence" situations. He noted
the importance of upholding the rights of ordinary citizens and
so the bill is crafted with that in mind.
SENATOR THERRIAULT referred to page 2, lines 26-30, and asked
Senator Bunde the reason for obtaining fingerprints from
detainees.
SENATOR BUNDE replied that would only occur in the event of a
murder or attempted murder. It would be for the purpose of
diffusing future combat in the situation of gang retaliation.
DEAN GUANELI, Chief Assistant Attorney General, Department of
Law (DOL), added that false identification cards are prevalent
among gang members and so fingerprinting proves useful in
serious cases.
9:03:48 AM
SENATOR THERRIAULT countered many other people could be swept up
in a police detainment scenario and innocent people could be
subject to having their fingerprints entered into a police
database by force.
MR. GUANELI responded the police would have the right to obtain
the fingerprints but it would not be mandatory and would be a
judgment call.
9:06:06 AM
SENATOR BUNDE noted police make judgment calls every day. He
spoke in support of the provision and said it was not special
interest legislation for Anchorage only. Gang violence is a
growing trend, he said.
MR. GUANELI noted the statute cited on Page 2, line 28 should
have referenced AS 11.61.190 instead of AS 11.61.195.
SENATOR THERRIAULT referred to Page 2, line 26 "the person is
detained in connection with the investigation" and asked Mr.
Guaneli to explain what that means.
MR. GUANELI explained that the same section (Article 3 Sec.
12.50.201) draws out the standards that a police officer must
meet in order to detain a person. The detainee might not be
involved in the crime or even be a suspect but the police might
believe that person has information about the crime and so they
would be able to lawfully detain a person that they reasonably
believe to have information.
SENATOR HOLLIS FRENCH asked Mr. Guaneli to read for the record
the definition of misconduct involving a weapon in the first
degree.
9:11:20 AM
MR. GUANELI did so.
Sec. 11.61.190. Misconduct involving weapons in the first
degree.
(a) A person commits the crime of misconduct involving
weapons in the first degree if the person
(1) uses or attempts to use a firearm during the commission
of an offense under AS 11.71.010 - 11.71.040; or
(2) discharges a firearm from a propelled vehicle while the
vehicle is being operated and under circumstances manifesting
substantial and unjustifiable risk of physical injury to a
person or damage to property.
(b) Misconduct involving weapons in the first degree is a
class A felony.
SENATOR FRENCH referred to Page 2, line 9, and asked whether the
police would be allowed to detain people who may be in a mall
parking lot and not have witnessed anything. He expressed
concern with the broad language of "in the vicinity."
MR. GUANELI explained subsection (a)(1)(B) would allow police to
talk to people who they reasonably believe have material
information. The critical part of the bill is subsection (a)(2)
where it would require that the police must believe the person
would have information on the crime.
9:16:23 AM
SENATOR FRENCH asked Mr. Guaneli the level of force police would
be authorized to employ in order to gain cooperation of citizens
who may not want to be photographed or fingerprinted.
MR. GUANELI said police currently have the ability to use
reasonable force to enable the effect of whatever action they
seek. It would depend on the circumstances and in this case
police would be dealing with a citizen who may have information
and so that level would involve the "laying on of hands" and
"restricting movements."
9:18:24 AM
CHAIR SEEKINS said he also had concern over the words, "in the
vicinity," but noted that the committee has discussed it
extensively. He said the intent is there must be a level of
reasonable immediacy.
MR. GUANELI agreed. In response to Senator French's concern over
force, the provision on line 16 comes directly from a Court of
Appeals case in Alaska where police pulled over a vehicle they
believe contained a crime victim. The Court of Appeals
authorized police to detain even a crime victim, he said.
9:21:22 AM
CHAIR SEEKINS posed a hypothetical scenario where the police
believed an eyewitness to a crime posed a threat to the officer
and asked whether they would be allowed to detain the witness
more securely.
MR. GUANELI reported there was a large body of case law that
allows police to take reasonable actions to protect themselves.
CHAIR SEEKINS asked whether police would have legal authority to
detain suspected gang members with more force than SB 206 would
allow.
MR. GUANELI replied SB 206 does not directly address level of
force. The intent is that reasonable force be applied dependent
on circumstances on a case-by-case basis.
CHAIR SEEKINS asked Mr. Guaneli to describe an "exigent
circumstance."
MR. GUANELI explained an exigent circumstance is a level that
may not rise to an emergency but there is some reason to believe
action must be taken immediately. One example might be in the
collection of evidence. A witness may have evidence on their
person and not even know it and police recognize that action
must be taken in order to secure that evidence.
9:25:53 AM
CHAIR SEEKINS removed his objection. Hearing no further
objections, Version I was adopted.
SENATOR CHARLIE HUGGINS moved Amendment 1. Page 2, line 28;
delete AS 11.61.195 and insert AS 11.61.190. Hearing no
objections, Amendment 1 was adopted.
MR. WALT MONEGAN, Anchorage Chief of Police, testified in
support of SB 206. He spoke of a homicide case in Anchorage
outside a VFW hall four years ago. Police later found out there
were potentially 50 witnesses to the shooting and yet the
homicide remains unsolved. He expressed frustration that police
often are not privy to what the community knows about a crime.
9:31:38 AM
SENATOR FRENCH asked Chief Monegan the level of force that he
would authorize for his officers to detain witnesses.
CHIEF MONEGAN explained that the beginning of a crime
investigation is often chaotic and officers do not necessarily
know the bad guys from the good. They separate individuals into
individual cars, sometimes handcuffed, until things get sorted
out. Officers are good at explaining to the public afterwards
the reason for using force to gain control of a crowd. Normally
everything happens fairly quietly but sometimes there are a few
people who try to resist being detained and when that happens it
activates the "prey drive," he stated. Police generally try to
find out why someone is resisting and that would include using
reasonable force.
9:35:53 AM
SENATOR HUGGINS stated concern for consistency of policy
throughout the Alaska Chiefs of Police.
CHIEF MONEGAN responded matters are generally handled in the
same manner. Officers must be respectful and professional while
trying to revoke rapport in the community. Officers who take the
bullying tact generally fail at the investigation scene.
CHAIR SEEKINS closed public testimony and asked for discussion
among committee members. He said SB 206 appears to give
additional powers of detainment in serious circumstances. He
said he is satisfied that the bill was ready to move on to the
next committee of referral.
SENATOR HUGGINS said he would be more supportive of the bill if
he lived in Anchorage. He suggested putting a sunset on the bill
for future review.
9:39:53 AM
SENATOR BUNDE noted that legislation could be changed during any
legislative session and so he did not see a need for a sunset.
SENATOR FRENCH expressed concern that the bill would make it a
crime for a person, who may be unaware that a crime has
occurred, to hurry away from the scene without consenting to be
photographed. He expressed support for the fingerprint portion
of the bill.
SENATOR BUNDE opined people are photographed a great deal more
than they realize.
CHAIR SEEKINS expressed support for the bill.
9:44:56 AM
SENATOR FRENCH countered his constituents support the part about
taking fingerprints of people connected with the investigation
of a murder or attempted murder and they support the officer
using a certain amount of force to do so. People would support
making it a crime for a person who does not comply with the
officer in this type of situation but to slow down a law-abiding
citizen and force them to have their photograph taken seemed
overly done.
SENATOR FRENCH moved Amendment 2. Page 3, line 8, delete the
words "photographs or".
9:47:42 AM
CHAIR SEEKINS said there would have to be a reasonable necessity
for the police officer to detain a person before the photograph
would be taken.
MR. GUANELI agreed. The reason the criminal provision is in the
bill is because of reasonable force. The intent is that the
officer would facilitate cooperation of the individual by
explaining that it would be a quick and easy process and by
advising them of the consequences if they resist.
CHAIR SEEKINS asked Mr. Guaneli to explain the reason the
officer would be taking the photograph.
MR. GUANELI said the most common scenario would be that the
person was not able to show proper identification.
CHAIR SEEKINS noted that person would already be under temporary
detention.
MR. GUANELI said correct.
9:52:59 AM
SENATOR GUESS recognized that the bill does not specify that the
photograph would be taken in the event that a person was unable
to show identification. She expressed support for the amendment.
Law-abiding citizens could be charged with a misdemeanor simply
for rushing off to get their kids from daycare, she stated.
CHAIR SEEKINS said he had a harder time with the words "or
resists" on line 8 than with the photograph taking.
SENATOR BUNDE referred to line 5 and said the officer has to
have "reasonable suspicion" that a person has witnessed a crime.
MR. GUANELI said the notion of reasonable suspicion is found in
all the case law. The length of detention would depend on the
reason for detention.
9:56:00 AM
SENATOR FRENCH said there are no Miranda warnings for someone
under temporary detention and so that person would not know
their rights in the situation. He said if the committee believes
that a person should be set free once they show the proper
identification that should be written into the bill. He said it
is sure as daylight that a lawful person will be charged with a
crime because of the way the bill is currently written.
CHAIR SEEKINS referred to the proposed Amendment 2 and objected.
Roll call proved Amendment 2 failed with Senators Guess and
French voting yea and Senators Huggins, Therriault, and Chair
Seekins voting nay.
9:58:01 AM
SENATOR HUGGINS moved CSSB 206(JUD) from committee with
individual recommendations and attached fiscal notes. Hearing no
objections, the motion carried.
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