Legislature(2005 - 2006)CAPITOL 120
01/27/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB326 | |
| HB321 | |
| HB314 | |
| HB379 | |
| HB343 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 150 | TELECONFERENCED | |
| *+ | HB 379 | TELECONFERENCED | |
| *+ | HB 343 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | HB 326 | ||
| = | HB 321 | ||
| = | HB 314 | ||
HB 314 - USE OF FORCE TO PROTECT SELF/HOME 2:28:07 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 314, "An Act relating to defense of self, other persons, and property." 2:28:38 PM KAREN LIDSTER, Staff to Representative John Coghill, Alaska State Legislature, one of the prime sponsors of HB 314, relayed on behalf of Representative Coghill that HB 314 will expand the area in which a person is allowed to stand his/her ground and [use deadly force to] protect himself/herself when faced with the threat of death, serious physical injury, kidnapping, sexual assault, or robbery. Currently one may only use deadly force while on premises that one owns or leases and is not the initial aggressor. She noted that members' packets contain an Amendment 1, which, with some formatting changes and explanations, read [original punctuation provided]: Page 2, Line 6: after the word "assault" delete: ", SEXUAL ABUSE OF A MINOR" insert: in the first degree, sexual assault in the second degree We are recommending deleting the proposed change and staying with the original wording in order to address the concerns that "sexual abuse of a minor" could be a loophole for a father to walk in on his 15- year-old daughter with her 19-year-old boyfriend, and the father claim "self defense of a child" as justification for killing the boyfriend. Line 10: after "to a" insert: reasonable In discussions with the AG's office, they felt that our original language "to a certainty" was much too broad and could let bad actors get away with using deadly force. It was agreed that adding in reasonable was a compromise that we both could live with. Line 21: after the word "assault" delete: ", SEXUAL ABUSE OF A MINOR" insert: in the first degree, sexual assault in the second degree In this new section (b) we recommend staying with the same language as Line 6 above. MS. LIDSTER relayed that the Department of Law (DOL) had expressed concern that one of the proposed changes in Section 2 - that which would replace the words, "in the first degree, sexual assault in the second degree" with the words, ", sexual abuse of a minor" - could create a loophole in situations where a parent is angry that his/her teenager is having a relationship with someone over the age of majority. Amendment 1 proposes to leave the language as it currently is in AS 11.81.335(a)(2). Amendment 1 would also change, in proposed AS 11.81.335(b), the proposed new wording, "to a certainty" to, "to a reasonable certainty"; this provision specifies one's duty to retreat. This change was also requested by the DOL because it felt that without the word, "reasonable" there could be difficulty proving that a person really could have retreated instead of using deadly force. The last alteration Amendment 1 proposes is that of changing Section 3 of the bill such that the language will mirror what is currently in AS 11.81.335(a)(2) regarding the crimes listed. 2:32:51 PM REPRESENTATIVE GARA suggested that Amendment 1 be incorporated into a proposed committee substitute (CS). CHAIR McGUIRE agreed to arrange that. REPRESENTATIVE GARA indicated that the bill might still have some unintended consequences. For example, he offered his belief that the crime of kidnapping includes custodial interference, and relayed that it's his belief that the sponsor doesn't intend for the bill to apply in those situations. Referring to Section 3, he offered his understanding that as currently written, one could use deadly force simply when one reasonably believes that a child is in imminent threat of having one of the things listed occur to him/her, and would not have to reasonably believe that the use of deadly force is the only way in which to stop those things from occurring. He suggested that this also is not the sponsor's intent, particularly with regard to robbery, and therefore the current language in Section 3 could prove problematic. MS. LIDSTER agreed to research those issues. 2:37:06 PM REPRESENTATIVE GRUENBERG suggested that the bill should include a definition of "carjacking". He asked what the difference is between "carjacking" - as used in proposed AS 11.81.350(e)(1) - and "theft of a motor vehicle when another person ... is inside the vehicle" - as used in proposed AS 11.81.350(e)(2) - adding that he thought the latter was a carjacking. MS. LIDSTER indicated that in proposed AS 11.81.350(e)(1), the person is still in the vehicle, and in proposed AS 11.81.350(e)(2), the person is outside of the vehicle and there is another person, perhaps even a child, in the car. REPRESENTATIVE GRUENBERG offered his belief that the activity in both proposed AS 11.81.350(e)(1) and proposed AS 11.81.350(e)(2) are simply different forms of carjacking. MS. LIDSTER said she would research that issue. CHAIR McGUIRE noted that one of her former staff was the victim of a carjacking, and briefly described that situation, which she characterized as very serious. REPRESENTATIVE GARA indicated that he is amenable to [the changes proposed via Amendment 1], and reiterated his concern regarding Section 3; on the latter point, he suggested adding the phrase, "the person reasonably believes the use of deadly force is necessary. MS. LIDSTER acknowledged that point, again offering to research that issue further. REPRESENTATIVE GRUENBERG asked whether carjacking is currently punished as a separate crime. MS. LIDSTER said she would also research that issue. 2:42:36 PM DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), relayed that the administration supports having a good, strong, self-defense law, but at the same time wants it to be a workable law so that gang members, drug dealers, and other criminals don't use the justification of self defense as an excuse for shooting up a neighborhood. He mentioned that he has been working with the sponsor in an effort to improve the bill so that it will accomplish both goals. In response to Representative Gruenberg's question, he noted that carjacking can include any number of crimes and can also be prosecuted as a separate crime of vehicle theft - a felony in and of itself - or as felony theft of property depending on what items were in the car. Furthermore, depending on what is done to the driver/passengers, assault charges might also be warranted. MR. GUANELI, in response to a further question, said he is not sure how other states treat this behavior. REPRESENTATIVE GRUENBERG asked whether the administration would like to see a separate crime for carjacking. MR. GUANELI indicated that current law is sufficient, particularly given that a lot of case law involves the merging of convictions when they relate to one continuous course of conduct. CHAIR McGUIRE suggested that what makes the act of carjacking distinguishable from the act of simply stealing a car is the mental intent of being willing to endanger someone in order get the vehicle, and indicated that she would research this issue further. REPRESENTATIVE GRUENBERG asked whether there are many incidences of carjacking in Alaska. MR. GUANELI said he would have to research that issue. REPRESENTATIVE GRUENBERG expressed a preference for developing a statute that would specifically address the issue of carjacking. He then referred to the interplay between self-defense and gang- related activity. [Following was a brief discussion regarding provisions in other legislation as they pertained to gang-related activities.] 2:51:07 PM MIKE MILLIGAN relayed that he has submitted written testimony, shared with the committee some personal experiences regarding the issue of self defense, said he is very concerned about the intent of the bill, and opined that that intent should be to allow people to defend themselves without allowing them to just simply shoot each other. He noted that Section 1 of the bill pertains to the civil code, whereas the remaining sections pertain to the criminal code. He opined that the bill should emphasize that there are standards [with regard to firearms]. For example, one of the aspects of the original "concealed carry" legislation was that in order to get a permit, one had [to pass a handgun safety course], adding that he would like to see a reference to that requirement included in both the civil and criminal provisions of the bill. Referring to his written testimony wherein he'd offered suggested language changes for HB 314, he acknowledged that perhaps the committee could come up with better wording for both the civil and criminal provisions of the bill. CHAIR McGUIRE offered her understanding that that training requirement had been eliminated. REPRESENTATIVE GRUENBERG surmised, then, that if Mr. Milligan's suggested changes were adopted, one would have an enhanced ability to [use the provisions of the bill to justify the use of deadly force] if one had taken the aforementioned safety course and had a permit. MR. MILLIGAN concurred, adding that in a civil case, [such changes] would provide for a preponderance of the evidence standard in the defendant's favor. He pointed out that he is advocating for language that would allow the permit to be either current or expired. He mentioned that the sponsor's staff has explained to him that the concealed carry permit provisions remain in place because of the reciprocal laws that would allow one to take a "concealed carry" permit to another state. CHAIR McGUIRE surmised, then, that although one doesn't have to have a permit to carry concealed, one could still opt to obtain such a permit, and that Mr. Milligan is suggesting that in doing so one is a more responsible gun owner and thus there ought to be special considerations given in situations wherein HB 314 comes into play. MR. MILLIGAN concurred. REPRESENTATIVE GRUENBERG asked whether the sponsor would look favorably upon Mr. Milligan's suggested changes. He mentioned that such language might provide people with incentive to get the training that would enable them to qualify for a permit. MS. LIDSTER said she would research that issue. 2:56:12 PM REPRESENTATIVE GARA asked that the phrase, "any place where the person has a right to be", be further defined. MS. LIDSTER listed examples such as one's work place, a healthcare provider's office, and shopping facilities. REPRESENTATIVE GARA surmised, then, that that phrase means "everywhere." MS. LIDSTER concurred. CHAIR McGUIRE surmised that Representative Gara's point is whether the phrase, "any place where the person has a right to be" would be legally defensible; she suggested that the sponsor have Legislative Legal and Research Services provide a definition for that phrase. She said she assumes that there is a reason for using that phrase as opposed to "anywhere you are"; perhaps the distinction is that one can't be engaged in a criminal act. MS. LIDSTER concurred, adding that AS 11.81.330 addresses the issue of what activities one cannot be engaged in, in order to be justified in protecting oneself through the use of nondeadly force. CHAIR McGUIRE indicated that HB 314 would be held over.
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