Legislature(2005 - 2006)CAPITOL 120
02/17/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB400 | |
| HB384 | |
| HB353 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 384 | TELECONFERENCED | |
| += | HB 400 | TELECONFERENCED | |
| += | HB 353 | TELECONFERENCED | |
HB 400 - CONFISCATION OF FIREARMS 1:11:58 PM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 400, "An Act relating to disasters and confiscation of firearms." [Before the committee was the proposed committee substitute (CS) for HB 400, Version 24- LS1543\F, Luckhaupt, 2/9/06, which had been adopted as the work draft on 2/13/06.] REPRESENTATIVE COGHILL, speaking as the sponsor of HB 400, relayed that he'd prefer to keep the bill simple, with its intention being to keep [law enforcement officials] from unlawfully confiscating lawfully owned firearms. The bill says that anyone who confiscates a firearm or orders the confiscation of a firearm from a law-abiding citizen [would be subject to the penalty therein]. He said it is clear to him that if somebody is not abiding by the law, police will have the discretion and authority to confiscate firearms. He mentioned that his staff would explain comments that have just recently been offered by the Department of Law (DOL), and indicated that he, too, is uncomfortable with making a violation of this proposed law a class A felony, and would therefore be amenable to a conceptual amendment that would change that provision even if such a change has to occur after the bill moves from committee. He noted that he would also be continuing conversations with Representative Gruenberg in order to address his concerns. 1:15:25 PM KAREN LIDSTER, Staff to Representative John Coghill, Alaska State Legislature, sponsor, relayed that according to conversations she'd had with Dean Guaneli from the DOL, [members' concerns could be addressed via] a change in wording such that a person found guilty of a violation would forfeit his/her office or governmental position, would be subject to revocation of his/her certificate issued by the Alaska Police Standards Council (APSC) thus terminating his/her ability to serve as a police officer, and could be charged with a crime such as theft of a firearm - a class C felony. She posited that such a change would instill the idea that the legislature feels that this behavior is serious. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 400. 1:17:42 PM DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), relayed that Ms. Lidster's comments accurately reflect his thoughts regarding a possible amendment. He noted that in considering this issue, he'd given thought to various hypothetical situations that a police officer might face, the consequences of making the aforementioned behavior a crime - particularly a class A felony - and the potential impact that doing so will have on laws involving citizen's arrest and the right to use force in self defense. He surmised that the sponsor's goal is to ensure that law enforcement officers don't act beyond the bounds of their lawful authority, and that when they do act beyond those bounds, they ought to face the same sanctions they face for any other wrongdoing. MR. GUANELI, offering his understanding that Section 1 of the bill merely says that nothing within the Alaska Disaster Act allows the confiscation of firearms, characterized this provision as a message to policy makers and to agency heads that there can't be a blanket order to confiscate firearms in a certain area; instead, an order must be case specific based on the facts of the situation as discerned by the officer at the time. He offered his belief that law enforcement agencies face issues regarding training, supervision, and disciplinary actions all the time; to change the bill as he's suggested would simply place the aforementioned behavior in that same context wherein a violation could result in the loss of one's job, and would therefore provide the disincentive to act beyond one's authority. CHAIR McGUIRE suggested that such a change could be offered as a conceptual amendment and then they could get the DOL's assistance with crafting the appropriate language. 1:20:32 PM MR. GUANELI suggested using the same type of language regarding excessive use of force and the like, with the idea that law enforcement officers have no reasonable right to [commit such an act] nor any reasonable grounds to believe that they have such a right. Such wording will tell law enforcement officers that they are not to go beyond the scope of their lawful authority. REPRESENTATIVE GRUENBERG indicated that he will object to such a change unless he can see the language in writing and know where it will go in the bill. "If you're going to charge somebody with a class A felony, ... at least they have a right to a jury trial, proof beyond a reasonable doubt, and all the constitutional protections," he remarked, positing that under the aforementioned suggested change a person would not have any such protections and would be subject to a preponderance of the evidence standard. REPRESENTATIVE COGHILL said he agrees that this is a serious issue, and opined that Version F "already covers that." He mentioned that he may simply just ask for a vote on moving the bill from committee. CHAIR McGUIRE suggested that Representatives Gruenberg and Coghill work on this issue further, and noted that committee packets contain an Amendment 1 to HB 400. 1:22:22 PM REPRESENTATIVE GARA made a motion to adopt Amendment 1, which, along with an accompanying note, read [original punctuation provided]: At Page 1, at the end of Line 10 Insert: "It is not a crime under this section if the person is a law enforcement officer, and reasonably believes it is necessary to confiscate the firearm to prevent a crime involving the firearm." Note: the language "reasonably believes is necessary" is from Sec. 11.81.330, Justification for Use of Force in Defense of Self or Others. REPRESENTATIVE COGHILL objected. REPRESENTATIVE GARA explained that Amendment 1 attempts to clarify that law enforcement officers cannot confiscate someone's firearm unless they have a suspicion that it will be used later in the commission of a crime. He acknowledged that [the DOL] might be able to offer more precise language. REPRESENTATIVE COGHILL suggested that Amendment 1 could result in everyone being considered to be under reasonable suspicion, characterizing the determination that there is reasonable suspicion that a crime may occur later as a judgment call that he doesn't want in statute, though he agrees with the concept that they don't want to hamstring law enforcement. Using the standard of reasonable belief could be problematic in any ensuing court case. REPRESENTATIVE GARA asked Mr. Guaneli whether, without Amendment 1, the bill would make a law enforcement officer guilty of a crime if he/she confiscates a firearm under the belief that that firearm may later be used in the commission of a crime. MR. GUANELI noted that there is a "general justification statute" - the justification of necessity - that says that if in order to prevent a greater harm from occurring one is required to commit an offense, that offense is justified. He offered his belief that that statute could be used to prevent a law enforcement officer from being prosecuted in the aforementioned circumstances, though he acknowledged that he would have to research this issue further to see whether existing law will address Representative Gara's concern. REPRESENTATIVE GARA said he is somewhat comforted by that information, but again questioned whether the bill will have an impact on the decisions law enforcement officials have to make while they are legitimately trying to stop a crime from occurring later in the day. MR. GUANELI remarked that the concept of, "later in the day" is nebulous; however, if a law enforcement officer believes that a crime is eminent or may happen soon, he/she will take whatever action is necessary to prevent that crime, protect themselves, and protect others. A law enforcement officer would be stretching the facts if he/she claims that he/she believes a firearm will be used in the commission of a crime later in the day; an officer must instead consider what the known facts are and what can be reasonably inferred from those facts with regard to what may happen "shortly." 1:30:04 PM REPRESENTATIVE GARA indicated that he still has a minor concern regarding this issue. REPRESENTATIVE COGHILL remarked, "We want a police officer to act expeditiously, we just don't want him to act wrongfully in violation of my individual rights, which I feel very strongly about." He said he wants to ensure that the policy is that a law enforcement officer will not confiscate somebody's lawfully owned firearm while he/she is acting lawfully. He mentioned that he is still willing to work on the issue of the proposed penalty. In response to comments, he acknowledged that in a disaster situation, law enforcement officials need to maintain control. 1:33:09 PM A roll call vote was taken. Representatives Gruenberg and Gara voted in favor of Amendment 1. Representatives McGuire, Kott, Coghill, and Anderson voted against it. Therefore, Amendment 1 failed by a vote of 2-4. REPRESENTATIVE GRUENBERG referred to what he termed the police standards sections of statute, and suggested they [instead] insert in those sections language indicating that in an appropriate case, the behavior currently outlined in HB 400 would be a violation of those sections. REPRESENTATIVE COGHILL remarked, "Yes, I think disciplinary action as appropriate," adding that he is prepared to make an amendment to line 10, to change "A" to "C". REPRESENTATIVE GRUENBERG said he would not oppose such a change. REPRESENTATIVE COGHILL indicated that he would also look for language that could be added directly after that which would reference the disciplinary actions undertaken by the APSC. REPRESENTATIVE GRUENBERG suggested, as a way of addressing everyone's concerns, that they simply alter the disciplinary sections of statute rather making the behavior a felony. REPRESENTATIVE COGHILL said he would prefer to see such language in writing first. 1:35:35 PM REPRESENTATIVE COGHILL made a motion to adopt Amendment 2, to change "A" to "C" on line 10 after "class". There being no objection, Amendment 2 was adopted. 1:36:13 PM REPRESENTATIVE ANDERSON moved to report the proposed CS for HB 400, Version 24-LS1543\F, Luckhaupt, 2/9/06, as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 400(JUD) was reported from the House Judiciary Standing Committee.
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