Legislature(2005 - 2006)CAPITOL 120
02/13/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Select Committee on Legislative Ethics | |
| HB353 | |
| HB400 | |
| HB384 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 353 | TELECONFERENCED | |
| *+ | HB 400 | TELECONFERENCED | |
| *+ | HB 384 | TELECONFERENCED | |
| += | TELECONFERENCED |
HB 400 - CONFISCATION OF FIREARMS 2:30:29 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 400, "An Act relating to disasters and confiscation of firearms." 2:30:47 PM REPRESENTATIVE KOTT moved to adopt the proposed committee substitute (CS) for HB 400, Version 24-LS1543\F, Luckhaupt, 2/9/06, as the work draft. There being no objection, Version F was before the committee. 2:31:02 PM REPRESENTATIVE COGHILL, speaking as the sponsor of HB 400, relayed that his staff will present the bill, which was engendered by the news from Louisiana that during the aftermath of Hurricane Katrina, law enforcement officials were confiscating firearms. [House Bill 400] proposes to prohibit the taking of firearms from law-abiding citizens, though such action would be acceptable to him, he relayed, if [enough] probable cause for doing so could be demonstrated. He suggested that the policy question is whether to make a violation of this proposed statute a class A felony, as is currently provided for in HB 400, particularly given that a violation would involve disregarding a citizen's constitutional right; in other words, the question is, should such behavior result in a high penalty. Keeping order in times of [emergency] is important, he opined, but during times when the government can't protect everyone, it shouldn't take away a citizen's ability to protect himself/herself. Under HB 400, he suggested, citizens will have the right [to keep and bear arms] unless they have somehow done something to forfeit that right. CHAIR McGUIRE asked that the use of the term, "law-abiding citizen" be addressed by staff, since she not seen that term used in statute before and isn't aware that its even been defined. Might it be better, she queried, to instead use the phrase, "from a citizen who is not in the process of committing a crime". 2:34:31 PM KAREN LIDSTER, Staff to Representative John Coghill, Alaska State Legislature, sponsor, relayed on behalf of Representative Coghill that according to a conversation she'd had with Representative Gruenberg, he was concerned that the original bill was a little too broad; therefore, Version F proposes a narrower focus in that firearms could still be confiscated from those who are committing illegal or unlawful acts. To address that concern, Legislative Legal and Research Services offered the term, "law-abiding citizens". MS. LIDSTER pointed out that Section 1 of Version F proposes to add language to AS 26.23.200, which limits the authority given to the governor and his assigns during disaster situations, thereby precluding authorizing the confiscation of lawfully owned, possessed, or carried firearms by law-abiding citizens. Section 2 of Version F proposes to add a new section of law to AS 26.23 such that the knowing confiscation, attempt at confiscation, or the ordering of confiscation of a firearm during a disaster emergency would result in a person being guilty of a class A felony. REPRESENTATIVE GARA suggested that they also provide a defense to the proposed crime such that a firearm could be confiscated if there is a reasonable suspicion that a person is about to commit a crime with the firearm. However, he is not sure what level of proof would be required for the term, "reasonable suspicion", nor what language should be used to ensure that law enforcement can protect the public without fear of committing the proposed crime. MS. LIDSTER acknowledged that point, and offered to raise this issue with the Department of Law (DOL), which, when initially contacted, was neutral about HB 400. REPRESENTATIVE COGHILL surmised that if there is a reasonable suspicion of foul play, law enforcement will have some authority anyway. He remarked that they may not be able to envision every circumstance that could arise in a disaster emergency, and so warned against attempting to list specific situations in the bill. REPRESENTATIVE GARA offered his understanding that in a criminal context, in emergency situations, there is a specific threshold that must be met [before action is taken]. He said he'd like to find out [from the DOL] what that threshold is, as it may be appropriate to put [a similar threshold] in the bill. 2:41:25 PM ALLEN STOREY, Captain, Division of Alaska State Troopers, Department of Public Safety (DPS), relayed that from law enforcement's point of view, in large-scale disasters there will be property owners who want to defend their property and they should have the right to do that, but there may also be people who want to take that property away from its rightful owner or who may otherwise seek to take advantage of the situation or who may have emotional issues because of the stress placed upon them, and such people may harm themselves or others. In such disaster situations, where there is a breakdown in public process, law enforcement agencies should have the ability to referee such situations. In order to prevent looting or bullying, law enforcement must take control of the situation, and this might include taking away someone's firearm. He said he certainly agrees with the spirit of the bill as long as it includes sideboards that could address as yet unforeseen circumstances in which law enforcement personnel need to have some discretion regarding this issue. REPRESENTATIVE COGHILL said he is amenable to looking at that issue, but pointed out that occasionally the government can also be as much of a bad actor as those seeking to take advantage of emergency situations, and offered examples. Therefore, he said he doesn't know that confiscating firearms as part of a blanket approach is really the right answer in emergency situations. The right to keep and bear arms has to stand strong in situations wherein there is a breakdown in public safety mechanisms and law enforcement can't protect everybody; one must be able to protect oneself. He indicated that he is not willing to entertain the concept of establishing martial law and confiscating everyone's firearms simply to create order in emergency situations, though he is sensitive to the balance that must be maintained. He opined that there are enough laws currently on the books to provide law enforcement with the ability to confiscate someone's firearms in situations where it is truly called for. 2:46:58 PM REPRESENTATIVE GARA noted that a law enforcement officer may have a legitimate fear that someone who is a law-abiding citizen at that point in time will soon perpetrate a crime, and according to the language currently in the bill, the law enforcement officer would be precluded from confiscating that person's firearm. Therefore, the committee should come up with language that says a law enforcement officer is not liable for confiscating a firearm from a person who is about to use it to shoot someone, for example. REPRESENTATIVE COGHILL noted that such a situation could occur now; a law enforcement officer could fear that someone is about to use a firearm to commit a crime. However, even now, unless the officer has probable cause, he/she can't act. In a disaster emergency, a law enforcement officer will have to make a judgment call as to whether to violate someone's constitutional right in the interest of possibly preventing a crime. He characterized this as dangerous ground. CHAIR McGUIRE noted that the original bill had no exceptions, whereas Version F at least specifies that the person must be a law-abiding citizen. REPRESENTATIVE GRUENBERG relayed that he has some of the same concerns as were expressed by Representative Gara. He noted that according to the briefing provided to the House State Affairs Standing Committee by the Department of Military & Veterans' Affairs (DMVA) regarding emergency services and disaster preparedness, most such services and preparedness will pertain to villages and to flooding. However, he added, most villages have no law enforcement personnel because the Village Public Safety Officer (VPSO) [program] has been "defunded." He suggested that in such a situation in such locations, it will be total chaos, and under HB 400, any law enforcement officials who come onto the scene will face the possibility of being charged with a class A felony if they confiscate a firearm from someone about whom they have no way of knowing whether he/she is a law- abiding citizen. CHAIR McGUIRE indicated that she would be willing to hold the bill over so that perhaps the issues raised could be addressed. REPRESENTATIVE GRUENBERG opined that [in emergency disaster situations] the police - the militia - must have the authority to keep order. 2:52:34 PM BRIAN JUDY, Senior State Liaison, National Rifle Association - Institute for Legislative Action (NRA-ILA), urged support of HB 400. He went on to say: As has been discussed, the recent events in New Orleans, during the aftermath of the hurricane, demonstrate quite clearly that the right to keep our arms is very important during a state of emergency. ... The very basis of the Second Amendment is the empowerment of individuals with the right to provide self-protection, and when is self-protection more critical than during a time of disaster when law enforcement resources are stretched beyond their limits? This bill would protect law-abiding [Alaskan] citizens from experiencing the blatant violation of their rights that occurred in New Orleans. ... In fact, in that situation, there was none of this lack of clarity; it was a clear case of government officials inappropriately taking people's property - their firearms - and the NRA was forced to file a lawsuit to stop the egregious violation of the rights of people who were only trying to protect their families and property. ... This bill would clarify that lawfully owned, possessed, or carried firearms cannot be seized, and then it would make accountable for their actions persons who knowingly confiscate a lawfully possessed firearm from [a] law-abiding citizen. Now, with respect to the questions that have come up with regard to what's a law-abiding citizen, in my mind, that amendment is really unnecessary because the language of the bill as introduced refers to lawfully owned, possessed, or carried firearms. So if they're lawfully owned, possessed, or carried, then the person is obviously a law-abiding citizen. And with respect to the question of the person who may become a person who's not lawfully owning, possessing, or carrying, off the top of my head I'm not sure how to answer that question, but ... what I do know is that that's not what this bill is trying to get at, and that's not what happened in New Orleans - what happened in New Orleans was just an egregious violation of a constitutional right, and I know that that's what this bill is attempting to address. And with that, I urge your support for the bill. 2:54:57 PM REPRESENTATIVE GRUENBERG referred to the 1906 San Francisco Earthquake and fire, the New Orleans situation, and the volcanic eruption involving Pompeii, and asked how a law enforcement official is going to know, in a situation like one of those, who exactly is law-abiding and who isn't. He added: The power is out, their lives are in danger, and my question is, whom should the law protect in that situation? Would you want to be a law enforcement official going into that situation if you couldn't protect yourself and disarm somebody if you thought there might be a danger you? Would you want to volunteer and go in [in] that circumstance, without the right to do that? MR. JUDY suggested that the vast majority of government officials are responsible and are not going to commit the type of violations that were committed in New Orleans by a small, tiny percentage [of government officials], and that what this bill is targeting is that small percentage that were overzealous and took improper calculation of the risk. He reiterated his belief that what occurred in New Orleans was simply an egregious violation of citizens' rights; people who were just trying to protect their families and their property had their guns taken because they possessed guns - there was no threat of risk. 2:57:09 PM REPRESENTATIVE GRUENBERG pointed out that the problem is that the person being criminalized via the bill and being subject to a class A felony will be a law enforcement official. How can such a person make that split second decision that may be essential to protect the lives and property of everybody in the neighborhood if he/she is faced with being charged with a class A felony? MR. JUDY acknowledged that perhaps a class A felony is not the appropriate level of crime, but opined that the person who knowingly confiscates a lawfully owned, possessed, or carried firearm should be held accountable. He offered his understanding that under existing law, law enforcement has a certain level of authority, as long as there is probable cause, to take certain actions. He posited that if someone were to be charged with this proposed crime, the case would have to go to court, and so the whole fact pattern of the case would be reviewed; as long as probable cause can be shown, there won't be a problem, but if there is no probable cause and the law enforcement official knowingly confiscated a firearm, he/she will be held accountable. He again acknowledged that perhaps a class A felony is too steep. REPRESENTATIVE GRUENBERG said, "I sympathize with the person who's rights are violated, [but] I sympathize, frankly, more with the person who's got to go in and clean up the mess; I'm not sure how you balance that, and tough cases make tough law." CHAIR McGUIRE relayed that HB 400 [Version F] would be held over.
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