05/01/1997 01:07 PM House JUD

 CSSB 70(JUD) - DISCHARGE OF FIREARMS AT BLDGS.                                
                                                                               
 Number 1175                                                                   
                                                                               
 CHAIRMAN GREEN announced the next item of business was CS for                 
 Senate Bill No. 70(JUD), "An Act relating to the discharge of                 
 firearms at or in the direction of buildings and dwellings."  As              
 only a few minutes remained, he asked whether the sponsor's                   
 representative could lead them through the bill that quickly.                 
                                                                               
 JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley,                
 presented the bill on behalf of the sponsor.  Basically, it creates           
 a class B felony, the discharge of a firearm at a dwelling or in              
 the direction of a building when it is occupied.  Under existing              
 law, these offenses are classified as misdemeanors unless proof is            
 available that the person knew the building was occupied at the               
 time of the shooting or there was more than $500 in property                  
 damage.  Mr. Armstrong mentioned shootings at dwellings in Juneau             
 and Anchorage in the past year.  He said the sponsor believes there           
 is no justification for this type of activity, and the bill was               
 introduced to address this problem.                                           
                                                                               
 Number 1227                                                                   
                                                                               
 REPRESENTATIVE BERKOWITZ referred to page 2, subsection (3)(A)(ii),           
 and said the language is essentially the same as that contained in            
 Section 3; that raises equal protection problems in the event that            
 there is a prosecution based on the felony, rather than the                   
 misdemeanor.  Generally, when the level of a charge relies solely             
 on prosecutorial discretion, it is problematic, although he did not           
 recall offhand the cases that stand for that proposition.  He                 
 suggested it would be easy to pull out subsection (A)(ii), saying,            
 "Then we're still covered."                                                   
                                                                               
 ANNE CARPENETI testified again on behalf of the Department of Law,            
 saying that is also the department's concern:  When similar conduct           
 is covered by two different statutes, there are potential problems            
 with prosecutorial discretion.  She explained, "And the problem is,           
 there are no other circumstances that separate the two.  ... If               
 there were circumstances here that separated the two, there are               
 other provisions in law that say, `except for under other                     
 circumstances.'  But here, it's really the same language."                    
                                                                               
 CHAIRMAN GREEN asked:  If Section 3 were gone, would the bill be as           
 effective?                                                                    
                                                                               
 MS. CARPENETI replied, "No, if (3)(A)(ii) were gone."  She stated             
 her belief that that was Representative Berkowitz's suggestion.               
                                                                               
 REPRESENTATIVE BERKOWITZ responded that either one could disappear.           
                                                                               
 MS. CARPENETI stated, "Well, if Section 3 were gone, ... what you             
 would have is this section in law, paragraph (3) under .210, which            
 is, I believe, fifth-degree misconduct involving weapons, without             
 that provision.  So, they would still be the same:  discharge of              
 weapon.  Well, it wouldn't be at a building.  That's the                      
 difference."                                                                  
                                                                               
 Number 1365                                                                   
                                                                               
 REPRESENTATIVE BERKOWITZ said it was still similar enough that it             
 wouldn't withstand scrutiny.  "And you'd automatically see this,              
 what's intended to be a B felony, bumped down to be an A                      
 misdemeanor," he added.                                                       
                                                                               
 MS. CARPENETI said it would be a problem.  It is hard to predict              
 the outcome, and the state would hope to win on it, but she thought           
 it definitely would be litigated.  She stated, "Our suggestion was            
 at least to remove the provision in (ii) that says, `with a risk of           
 damage to property or'.  I think the problem is that when you're              
 dealing with just damage to property, you've got charges under                
 criminal mischief and charges under this section, and this section            
 doesn't have any provision gradating the damage to property                   
 according to the amount of damage that's done ...."                           
                                                                               
 REPRESENTATIVE BERKOWITZ said he didn't think they were giving up             
 anything.  "If you fire a gun at a building and there's a risk of             
 physical injury, then you're almost certainly in the situation of             
 an assault," he added.                                                        
                                                                               
 MS. CARPENETI responded, "Well, particularly because the intent               
 language at the beginning of the bill says that ... if you                    
 discharge a firearm at a building and the building is occupied, the           
 legislative intent is that it's strict liability as to that element           
 that the building was occupied.  So, yes, I would agree with you."            
                                                                               
 REPRESENTATIVE CROFT said the part about risk of damage to property           
 had confused him when he read it.  It seemed that anytime one                 
 discharged a firearm at a building, there was risk of damage to               
 property, namely, to the building.  One could be just shooting at             
 a shed, knowing it was unoccupied.  While it might not be the best            
 conduct, did it rise to this level?  As he read the bill, it would            
 do so under this provision.  He could understand doing it for a               
 dwelling, which is likely to be occupied, or a building that may be           
 unlikely to be occupied but that is, in fact.  "A school is what we           
 were using as an example," he said.  "So, those two, because they             
 have serious risks to people, make some sense to me.  Raising to              
 this level shooting at a shed doesn't seem to make sense."                    
                                                                               
 MR. ARMSTRONG informed members that the sponsor had talked with the           
 Department of Law before the hearing and was amenable to the                  
 department's suggested amendment to remove that portion.                      
                                                                               
 CHAIRMAN GREEN asked whether that was removal of "a risk of damage            
 to property or."                                                              
                                                                               
 Number 1566                                                                   
                                                                               
 REPRESENTATIVE CROFT offered Amendment 1 to CSSB 70(JUD):  "To                
 eliminate from line 13 on page 2, `a risk of damage to' and on                
 [line] 14, `property or'.  So, it would take out that, and it would           
 read, `with reckless disregard for a risk of physical injury to a             
 person'."                                                                     
                                                                               
 REPRESENTATIVE BERKOWITZ objected for discussion purposes, saying             
 they were still left with the same problem.  He stated, "Since                
 you've written in the disjunctive `risk of damage to property or              
 [a] risk of physical injury,' that's the same language that's                 
 contained in Section 3."  He stated his understanding that the                
 Department of Law wanted to remove the entire subsection (ii).                
                                                                               
 MS. CARPENETI responded, "That's what we would like to see removed.           
 There is a difference, in that under (3), we're talking about a               
 building.  And ... that's paragraph (3) on line 10.  And then                 
 paragraph (3) on line 17, which is a different statute, which is              
 misconduct involving weapons, I believe, in the fifth degree, ...             
 there is a difference in that the one on line 17 is not necessarily           
 at a building.  So, I think we could live with the amendment that             
 was suggested by Representative Croft, although our original                  
 position was we would like to see all of (ii) out."                           
                                                                               
 REPRESENTATIVE BERKOWITZ responded, "I think what that does is                
 confuse it, because it's different.  If the building is occupied              
 and there's no risk of physical injury, you're shooting at one end            
 of the building and someone's at the other end, that's still swept            
 up under the B felony."  He said there is an internal contradiction           
 because that case is somehow viewed as the same as someone in a               
 room being shot at.  He stated, "And if I were to be in the                   
 situation where I was having to defend somebody, that sort of                 
 discrepancy is something you might seize on and invite litigation,            
 whereas if the building's occupied, ... it doesn't matter.  If we             
 just do away with (ii), we have no problems whatsoever."                      
                                                                               
 Number 1704                                                                   
                                                                               
 REPRESENTATIVE NORMAN ROKEBERG said this really hits home to him,             
 given 30 years in commercial real estate.                                     
                                                                               
 CHAIRMAN GREEN said, "You don't like your buildings shot at."                 
                                                                               
 REPRESENTATIVE ROKEBERG agreed; it is a real risk and happens                 
 frequently.  He believes there should be a presumption that a                 
 building is occupied, even at night; therefore, the "second                   
 portion" has some merit.  Clearly, there is a problem in terms of             
 equal protection and conflict that should be corrected.  But the              
 language is clear that in (i), the building is occupied, and he               
 believes (ii) puts the burden on somebody to make sure it isn't               
 occupied.  "So, I think that is absolutely necessary," he stated.             
 "But I'm not sure if it corrects this other problem that we need to           
 correct.  Maybe we need to remove the misdemeanor from the books;             
 I'm not sure how that works under the Title 11-type of structure              
 you want to do."  He said this bill is meaningful and applies to              
 our everyday lives.                                                           
                                                                               
 REPRESENTATIVE CROFT suggested perhaps the problem was (i), not               
 (ii).  It seemed to make sense to have a presumption in shooting at           
 a dwelling that people are there; therefore, it is in the same                
 category as a crime against a person, as is shooting at a building            
 with reckless disregard of physical injury to a person.  He                   
 suggested (i) creates a sort of weird strict liability.  A person             
 could have no reason to know; it would therefore not be reckless              
 conduct.  For example, a person could have checked but someone                
 could be hiding in the cellar.  This language doesn't say "you knew           
 it was occupied" or "you should have known it was occupied."  While           
 it is not good conduct to shoot at buildings, the question is when            
 it occurs.  Although big thefts, for example, become felonies, the            
 more typical distinction is whether there is a risk to a person.              
 Removing the property language and strict liability would set up a            
 two-tier system:  "a dwelling, we're going to presume it's                    
 occupied; a building, if you should have known it was occupied."              
                                                                               
 Number 1864                                                                   
                                                                               
 REPRESENTATIVE PORTER said he'd prefer to eliminate (i) rather than           
 (ii).  There are situations where law enforcement officers and                
 others have a legitimate right to use a firearm.  For example, an             
 officer might shoot at and hit a person, yet have committed a                 
 felony by shooting in the direction of a building.  He didn't                 
 believe that was the intent.  He suggested they qualify who the               
 person is.                                                                    
                                                                               
 CHAIRMAN GREEN asked:  If they eliminate (i) and retain (ii), do              
 they still have the conflict with lines 17 through 19?                        
                                                                               
 REPRESENTATIVE BERKOWITZ responded, "I think you do if we keep the            
 property section in, but I don't believe we do if you take the                
 property section out."                                                        
                                                                               
 REPRESENTATIVE CROFT pointed out that it is a property phrase.                
                                                                               
 REPRESENTATIVE PORTER said that would be his recommendation.  "And            
 I still would like to have some qualifier on the person," he added.           
                                                                               
 REPRESENTATIVE BERKOWITZ suggested in a shoot-out situation, the              
 "law attaching to justification would attach."                                
                                                                               
 REPRESENTATIVE PORTER said he would not be comfortable with that.             
                                                                               
 MS. CARPENETI responded to the proposal to eliminate (i).  She                
 understood from the sponsor that the purpose is to criminalize at             
 a higher level drive-by shootings of buildings.  However, if a                
 person shot at a store in the middle of the night, it would be hard           
 for the state to prove there was a substantial risk that someone              
 was inside and that the person disregarded the risk, because there            
 isn't a big risk of people being inside a building.                           
                                                                               
 REPRESENTATIVE PORTER suggested in that case it was property                  
 damage, and why were they talking about a felony?                             
                                                                               
 Number 1982                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG indicated a common phenomenon in urban                
 areas is a bullet striking a glass wall of an office building in              
 which the glass sections are worth $700 to $1,500 each.  However,             
 that was not the point here, and he agreed with Representative                
 Porter, he added.                                                             
                                                                               
 REPRESENTATIVE PORTER said the vast majority of those cases involve           
 a slingshot or pellet gun, which are not firearms.                            
                                                                               
 REPRESENTATIVE BERKOWITZ pointed out that those are also felonies.            
                                                                               
 REPRESENTATIVE ROKEBERG suggested firing a firearm within a                   
 building should perhaps be addressed.  In addition, in canvassing             
 middle-class neighborhoods in Anchorage, he had seen residences               
 with bullet holes in the front doors, which he believed were from             
 drive-by shootings.                                                           
                                                                               
 REPRESENTATIVE CROFT recapped Amendment 1, saying it "was to take             
 property damage out of (ii)."                                                 
                                                                               
 CHAIRMAN GREEN noted that it deletes, "a risk of damage [to]                  
 property or".                                                                 
                                                                               
 REPRESENTATIVE BERKOWITZ withdrew his objection.                              
                                                                               
 CHAIRMAN GREEN announced that there being no further objection,               
 Amendment 1 was adopted.                                                      
                                                                               
 REPRESENTATIVE BERKOWITZ offered Amendment 2, to withdraw                     
 subsection (A)(i)."                                                           
                                                                               
 Number 2081                                                                   
                                                                               
 REPRESENTATIVE PORTER asked the Department of Law to assist him               
 with a friendly amendment that would put some qualifying term in              
 front of "person" on line 14, to eliminate someone who was                    
 "lawfully bought and paid for."  He explained, "In other words, I             
 am shooting at this person with absolute reckless disregard for his           
 safety, because I want to shoot him and I have a legal right to               
 shoot him.  I don't want to be guilty of a felony."                           
                                                                               
 MS. CARPENETI said she would be happy to provide that.  It would              
 take a little thought to say it clearly.  She offered to bring it             
 in that afternoon or the following day.                                       
                                                                               
 REPRESENTATIVE CROFT suggested, "discharge a firearm without legal            
 justification at or in the direction of a ...."                               
                                                                               
 MS. CARPENETI acknowledged that and said, "But I don't know that              
 that would also qualify dwelling; ... and I would have to think               
 about whether you want to qualify dwelling with that."                        
                                                                               
 CHAIRMAN GREEN asked whether there was an objection to Amendment 2,           
 to withdraw (i).  There being none, Amendment 2 was adopted.                  
                                                                               
 REPRESENTATIVE PORTER said he still had the same question.  He                
 referred to page 2, line 15, which says, "(B) a dwelling," and                
 asked:  If they left (B) in place, what about a legitimate shooting           
 that happens to be in that general direction?                                 
                                                                               
 REPRESENTATIVE BERKOWITZ suggested if they put in some legal                  
 justification on line 10 to that effect, it would also cover a                
 dwelling.                                                                     
                                                                               
 REPRESENTATIVE CROFT restated his prior suggestion, specifying:               
 "Line 10, between `firearm' and `at', putting in the words,                   
 `without legal justification', to read:  `discharges a firearm                
 without legal justification at or in the direction of ....'"                  
                                                                               
 CHAIRMAN GREEN said that takes care of both.                                  
                                                                               
 REPRESENTATIVE BERKOWITZ stated, "a building with reckless                    
 disregard for a risk of physical injury to a person.  You don't               
 need `dwelling' then.  Well, it could be a tent or something."                
                                                                               
 REPRESENTATIVE CROFT said it establishes that for a dwelling,                 
 reckless disregard is presumed.  "If it's a building, you have to             
 show something else," he added.                                               
                                                                               
 CHAIRMAN GREEN indicated it was a great idea.  He asked whether               
 there was any objection.  There being none, Amendment 3 was                   
 adopted.                                                                      
                                                                               
 REPRESENTATIVE CROFT made a motion to move CSSB 70(JUD), as                   
 amended, from committee with individual recommendations and                   
 attached fiscal notes.  There being no objection, HCS CSSB 70(JUD)            
 moved out of the House Judiciary Standing Committee.