Legislature(2011 - 2012)CAPITOL 120

02/09/2011 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 80 SELF DEFENSE TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 127 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Heard & Held
                      HB 80 - SELF DEFENSE                                                                                  
                                                                                                                                
1:07:07 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO announced  that the first order of  business would be                                                               
HOUSE BILL NO. 80, "An Act  relating to self defense in any place                                                               
where a person has a right to be."                                                                                              
                                                                                                                                
1:08:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MARK NEUMAN,  Alaska State  Legislature, speaking                                                               
as one  of the joint prime  sponsors for HB 80,  relayed that the                                                               
proposed  legislation would  change  AS  11.81.335(b) to  reflect                                                               
that a  person doesn't  have a  duty to  retreat and  can instead                                                               
apply deadly  force if he/she is  anywhere he/she has a  right to                                                               
be.                                                                                                                             
                                                                                                                                
1:11:19 PM                                                                                                                    
                                                                                                                                
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute  for   Legislative  Action  (NRA-ILA),   testifying  in                                                               
support of  HB 80, characterized  the proposed bill  as important                                                               
self-defense legislation.   He offered  his belief that  the bill                                                               
would  apply to  only those  who  are justified  in using  deadly                                                               
force.  He then offered his  understanding that the use of deadly                                                               
force is justified when a  person reasonably believes that he/she                                                               
or a  person he/she is protecting  is in danger of  being killed,                                                               
sustaining  serious  bodily  injury,  being a  victim  of  sexual                                                               
assault, being  kidnapped, or being  robbed; it is  not justified                                                               
if the person  is engaged in mutual combat,  is provoking another                                                               
person to  violence, is  the initial  aggressor, or  "possesses a                                                               
weapon  in  furtherance  of  a felonious  activity."    Mr.  Judy                                                               
posited that although it is  not explicitly expressed in statute,                                                               
gang  activity would  be included  under possessing  a weapon  in                                                               
furtherance of a felonious activity.   Mr. Judy said the proposed                                                               
bill  would  remove   the  need  for  someone  to   have  to  ask                                                               
him/herself if retreat is possible.                                                                                             
                                                                                                                                
1:14:54 PM                                                                                                                    
                                                                                                                                
CHAIR  GATTO,  using  an  example wherein  a  person  comes  upon                                                               
someone attacking another person,  asked how that situation would                                                               
be treated under HB 80 in terms of the duty to retreat.                                                                         
                                                                                                                                
MR.  JUDY  ventured  that  statutes  outline  that  a  person  is                                                               
justified  protecting  his/her  life  and the  life  of  another;                                                               
therefore, under the provisions of  the proposed bill, the person                                                               
in Chair Gatto's  example would be allowed to  defend the victim.                                                               
In response to a follow-up question,  he said the first option is                                                               
to call  911.  He said  his experience has shown  that people who                                                               
carried  a  concealed  weapon do  everything  possible  to  avoid                                                               
confrontation, because  when a  person -  good or  bad -  pulls a                                                               
trigger, he/she will be arrested.                                                                                               
                                                                                                                                
1:17:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN  noted  that  AS  11.81.330  speaks  about                                                               
situations  involving mutual  combat,  and opined  that the  bill                                                               
wouldn't apply in such situations.                                                                                              
                                                                                                                                
1:18:54 PM                                                                                                                    
                                                                                                                                
MR. JUDY  added his belief that  under existing law, even  when a                                                               
person's use  of force was  justified, he/she risks a  finding by                                                               
court  that he/she  overestimated the  difficulty of  retreating.                                                               
He  opined that  in the  split  second available,  once a  person                                                               
judges  him/herself  to be  justified  in  taking action,  he/she                                                               
should not have to then stop  and consider whether it is possible                                                               
to retreat.  He urged the committee support of HB 80.                                                                           
                                                                                                                                
1:20:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  said she  agrees that  a person  in danger                                                               
should  have the  right to  defend him/herself,  and she  relayed                                                               
that  in those  examples she  has  heard, the  person is  already                                                               
covered by  existing law.   Therefore, she asked for  examples of                                                               
when,  under  existing  law, people  are  being  prosecuted  that                                                               
should not be.                                                                                                                  
                                                                                                                                
MR. JUDY acknowledged  that current statute is good,  but that HB
80 would "take it the rest of  the way."  He indicated that there                                                               
are 16 states that currently have  statutes similar to HB 80.  He                                                               
said the bill  would ensure that a person has  the ability to act                                                               
on  justification.     He  said   the  intent  of   the  proposed                                                               
legislation  is to  alleviate the  need for  a person  to justify                                                               
before a court that he/she  was justified in killing someone, and                                                               
he suggested  criminals would be  taking a bigger risk  once they                                                               
know about this new law.                                                                                                        
                                                                                                                                
REPRESENTATIVE HOLMES expressed concern  that the change proposed                                                               
by  HB  80 will  simply  make  it  easier  for criminals  to  get                                                               
acquitted  of murdering  someone, particularly  given that  there                                                               
are not  a lot of  people going to  trial having to  defend their                                                               
justified actions.                                                                                                              
                                                                                                                                
MR. JUDY  argued that a person  would still have to  be justified                                                               
in  killing  another  person,  and that  the  criteria  for  what                                                               
constitutes  justification are  sufficient to  prevent such  from                                                               
happening.                                                                                                                      
                                                                                                                                
1:27:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN ventured  that HB  80 is  simply adding  a                                                               
clarification with  regard to whom Alaska's  self defense statute                                                               
applies; it  simply would allow  the person  to be "in  any place                                                           
where the person has a right to  be."  He said he wants to ensure                                                           
that a  person has a right  to defend him/herself before  harm is                                                               
inflicted.                                                                                                                      
                                                                                                                                
CHAIR GATTO  referred to language  in Section 1,  subsection (b),                                                               
which read as follows:                                                                                                          
                                                                                                                                
     Section 1. AS 11.81.335(b) is amended to read:                                                                           
               (b) A person may not use deadly force under                                                                      
     this section  if the person  knows that,  with complete                                                                    
     personal safety  and with complete safety  as to others                                                                    
     being defended,  the person can avoid  the necessity of                                                                    
     using  deadly   force  by  leaving  the   area  of  the                                                                    
     encounter, except  there is no  duty to leave  the area                                                                    
     if the person is                                                                                                           
                                                                                                                                
CHAIR GATTO said the words  "knows" and "complete" are absolutes,                                                               
and he  opined that  a person needs  better protection  than that                                                               
because "it will never happen."   He said if the words "suspects"                                                               
and  "reasonable"  safety  had been  used,  it  would  completely                                                               
change the meaning.                                                                                                             
                                                                                                                                
1:30:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pointed  out  that  [AS  11.81.335(b)]                                                               
requires that a person has  an absolute necessity to kill another                                                               
person, which is a very high standard.                                                                                          
                                                                                                                                
MR. JUDY concurred.                                                                                                             
                                                                                                                                
CHAIR GATTO  asked if the  words "reasonably believes"  trump the                                                               
word "necessity".                                                                                                               
                                                                                                                                
MR.  JUDY  offered  his  understanding   that  those  words  work                                                               
together.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG   said  he  does  not   see  the  words                                                               
"reasonably believes" in the aforementioned statute.                                                                            
                                                                                                                                
REPRESENTATIVE  NEUMAN   explained  that   "reasonably  believes"                                                               
appears  in another  portion of  AS 11.81.334,  [subsection (a)],                                                               
which read as follows:                                                                                                          
                                                                                                                                
                                                                                                                                
          (a) Except as provided in (b) of this section, a                                                                      
     person  who is  justified in  using nondeadly  force in                                                                    
     self-defense under  AS 11.81.330  may use  deadly force                                                                    
     in  self-defense upon  another person  when and  to the                                                                    
        extent the person reasonably believes the use of                                                                        
     deadly force is necessary for self-defense against                                                                         
          (1) death;                                                                                                            
          (2) serious physical injury;                                                                                          
        (3) kidnapping, except for what is described as                                                                         
        custodial interference in the first degree in AS                                                                        
     11.41.320;                                                                                                                 
          (4) sexual assault in the first degree;                                                                               
          (5) sexual assault in the second degree;                                                                              
        (6) sexual abuse of a minor in the first degree;                                                                        
     or                                                                                                                         
          (7) robbery in any degree.                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG,  regarding the language, "in  any place                                                           
where the person has  a right to be", which would  be added to AS                                                           
11.81.335 under HB  80, said there is language  currently in that                                                               
statute that  would become  incongruous.   For example,  he noted                                                               
that current  statute says  that there  is no  duty to  leave the                                                               
area  if the  person  is on  premises "that  the  person owns  or                                                               
leases"  or "where  the person  resides",  or is  "in a  building                                                               
where the  person works  in the ordinary  course of  the person's                                                               
employment".   He pointed out  that a  landlord cannot go  into a                                                               
tenant's apartment without giving 24  hours notice, that a person                                                               
may not have a right to be  at his/her residence if he/she is the                                                               
subject of a  domestic violence order, and that a  person may not                                                               
have a  right to be in  a particular office within  a building in                                                               
which he/she works.                                                                                                             
                                                                                                                                
1:35:21 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  questioned whether not  being prohibited  from being                                                               
somewhere means the same thing as having a right to be there.                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  offered an example that  although he is                                                               
not prohibited  from entering  the home of  someone he  knows, he                                                               
would wait to be invited into that home.                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  directed attention to language  on page                                                               
2,  line 2,  "protecting  a child  or a  member  of the  person's                                                               
household", and  said he thinks  there may  be reason to  need to                                                               
protect someone else, for example, a parent or disabled adult.                                                                  
                                                                                                                                
1:36:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE NEUMAN offered that  other statutes would apply in                                                               
such  circumstances, but  acknowledged that  perhaps some  of the                                                               
language  that  Representative  Gruenberg  highlighted  could  be                                                               
removed.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  expressed concern that the  language in                                                               
paragraph (4), regarding  the protection of a child  or member of                                                               
the person's household, may be too narrow.                                                                                      
                                                                                                                                
CHAIR GATTO  said many people  consider their pets to  be members                                                               
of their household.                                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  traditionally   a  member  is  a                                                               
person.                                                                                                                         
                                                                                                                                
The committee took an at-ease from 1:39 p.m. to 1:40 p.m.                                                                       
                                                                                                                                
1:40:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that AS 11.81.340  [addresses use                                                               
of force  "in defense of a  third person"].  He  then pointed out                                                               
that Perkins Law  addresses the issue of  "castle" rule; "castle"                                                               
is  a term  of art  that  has been  around  for many  years.   In                                                               
response to Chair Gatto, he gave  examples of cases from the '40s                                                               
and '50s in which that term was used.                                                                                           
                                                                                                                                
1:43:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE THOMPSON expressed support for HB 80.                                                                            
                                                                                                                                
1:45:08 PM                                                                                                                    
                                                                                                                                
DOUGLAS  MOODY,  Deputy   Director,  Criminal  Division,  Central                                                               
Office,   Public    Defender   Agency   (PDA),    Department   of                                                               
Administration (DOA),  said, for  example, when  a person  is out                                                               
hunting and  gets involved in  an altercation  and has a  duty to                                                               
retreat, the question  becomes when that person  should make that                                                               
decision.  He said when  a person "knows" "with complete personal                                                               
safety" [that  he/she could avoid  using deadly force  by leaving                                                               
the area]  is something that is  decided by a jury,  and the jury                                                               
could  infer from  conduct whether  or  not the  person had  that                                                               
knowledge.   Under  HB 80,  he  said, the  question would  become                                                               
whether the  person is  justified in  defending him/herself  in a                                                               
situation  that   he/she  did   not  bring  about,   rather  than                                                               
questioning  if  the person  waited  too  long to  leave  because                                                               
he/she had a right to be there.                                                                                                 
                                                                                                                                
1:47:50 PM                                                                                                                    
                                                                                                                                
CHAIR  GATTO offered  an example  wherein  one hunter  encounters                                                               
another hunter who  tells the first to get out  of his territory,                                                               
to which  the first  says he has  a right to  be there,  at which                                                               
point the  hunter tells the first  hunter he has to  the count of                                                               
three to leave.   He asked Mr. Moody how  he would interpret that                                                               
scenario with regard to self defense.                                                                                           
                                                                                                                                
MR. MOODY  responded that that  scenario could be  interpreted in                                                               
more than one  way.  The first possibility, he  said, is that the                                                               
jury could decide  that the first hunter had a  duty to walk away                                                               
the  minute the  other  hunter  said the  territory  was his  and                                                               
ordered him  to do so,  because the  first hunter was  aware that                                                               
both  people  involved  were  armed,  which  could  result  in  a                                                               
shooting.  The  second possibility, he related, is  that the jury                                                               
could decide that the first hunter's  duty to walk away began the                                                               
moment the other hunter gave him to  the count of three to do so,                                                               
because  the  hunter  giving  the  ultimatum  had  escalated  the                                                               
situation.  The  third possibility, Mr. Moody,  ventured, is that                                                               
if the  aggressive hunter raised  his gun after giving  the first                                                               
hunter to the  count of three and the first  hunter shot him; the                                                               
jury may be sympathetic and decide  that the first hunter had the                                                               
right to defend  himself because he did not  create the situation                                                               
and had the  right to be there.  He  emphasized that the proposed                                                               
law  changes  the focus  from  whether  a  person is  engaged  in                                                               
misconduct to whether  someone else is forcing the  person into a                                                               
situation in which he/she has to defend himself.                                                                                
                                                                                                                                
CHAIR GATTO asked Mr. Moody how  he would defend the first hunter                                                               
if that hunter  said he did not trust the  aggressive hunter, did                                                               
not want to turn his back to  him, did not want to walk backwards                                                               
through the  woods, and  did not want  to leave.   He asked  if a                                                               
threat is  sufficient reason for  acting in self defense,  and he                                                               
added  to  his  hypothetical  situation  that  the  first  hunter                                                               
intended to shoot the aggressor in  the knee, but missed and shot                                                               
him in the heart.                                                                                                               
                                                                                                                                
MR. MOODY  said he would argue  for the first hunter  that he was                                                               
dealing  with someone  who was  unreasonably aggressive  and that                                                               
his only  option was to shoot  first in this instance.   However,                                                               
he said  he would warn his  client that the outcome  would depend                                                               
on the jury.                                                                                                                    
                                                                                                                                
CHAIR  GATTO stated  that when  a  person takes  action based  on                                                               
his/her right to be somewhere,  then he/she has a greater measure                                                               
of credibility.  He opined that  that is the crux of the proposed                                                               
legislation.  He then relayed  that public testimony would remain                                                               
open at this time.                                                                                                              
                                                                                                                                
1:53:42 PM                                                                                                                    
                                                                                                                                
RICHARD  SVOBODNY,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,  Department  of  Law  (DOL),  noted  that  AS                                                               
11.81.340  addresses the  issue of  defending those  who are  not                                                               
members of one's  household.  He stated, "What  that provision is                                                               
in there for  is you don't have an obligation  to remove yourself                                                               
from a  situation where you're  using self defense and  it's your                                                               
child or  a member  of the  household.   ... That's  only dealing                                                               
with ... an obligation to remove yourself from the area."                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG   characterized  language   in  statute                                                               
regarding  retreating as  confusing,  and asked  for the  general                                                               
rule regarding the duty to retreat.                                                                                             
                                                                                                                                
MR. SVOBODNY  said in 1935 it  was indicated that there  was not,                                                               
in the Territory  of Alaska, the obligation to retreat.   He said                                                               
in 1978, with the revision  of the criminal code, the legislature                                                               
made  the  determination  that under  some  circumstances,  if  a                                                               
person could  remove him/herself  from a  situation of  danger in                                                               
complete safety,  then he/she  would be  required to  do so.   In                                                               
2006, he  noted, there  was a revision  in this  language through                                                               
Senate Bill 200.                                                                                                                
                                                                                                                                
1:57:41 PM                                                                                                                    
                                                                                                                                
CHAIR  GATTO  opined  that  using a  standard  of  "complete"  is                                                               
setting a bar that can't be reached.                                                                                            
                                                                                                                                
MR.  SVOBODNY related  that a  person  does not  need to  retreat                                                               
unless he/she can  do so in complete safety.   So, in the example                                                               
previously given by Chair Gatto,  the first hunter would not have                                                               
a duty  to retreat because  it would not  have been safe  to turn                                                               
his back on  the other hunter.    Furthermore it is  the State of                                                               
Alaska that  has to  prove beyond a  reasonable doubt  that there                                                               
was no danger to the person in retreating.                                                                                      
                                                                                                                                
CHAIR GATTO  opined that it would  be too difficult for  a person                                                               
to have to  keep all the factors in mind  before taking action in                                                               
the moment.                                                                                                                     
                                                                                                                                
REPRESENTATIVE THOMPSON  questioned why  the fiscal  note doesn't                                                               
reflect a decrease  in spending, given that  the department would                                                               
not have to prosecute as many people.                                                                                           
                                                                                                                                
MR. SVOBODNY  pointed out, though,  that in  situations involving                                                               
the death  of a person, the  Department of Law still  has to make                                                               
some determinations.   He mentioned  the number of cases  and the                                                               
need for extra personnel.                                                                                                       
                                                                                                                                
REPRESENTATIVE THOMPSON asked  Mr. Svobodny if he  is saying that                                                               
the number  of cases DOL has  will increase from the  1,155 cases                                                               
the department had last year.                                                                                                   
                                                                                                                                
MR. SVOBODNY explained  that the number of cases  for review will                                                               
not increase,  but the number  of cases  that go to  trial likely                                                               
will,  as indicated  by  Mr. Moody's  response  to Chair  Gatto's                                                               
hypothetical case.                                                                                                              
                                                                                                                                
2:03:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES surmised  that the  broadening of  statute                                                               
under HB  80 would  make it  easier for  criminals to  claim self                                                               
defense, which  would make it  more difficult for  the department                                                               
to prove a case is one of murder rather than self defense.                                                                      
                                                                                                                                
MR.  SVOBODNY concurred.    He  stated that  true  cases of  self                                                               
defense should not  have to go to trial.   He said the department                                                               
agrees with  the bill  sponsor that victims  of crimes  should be                                                               
protected and those  who use self defense are  victims of crimes.                                                               
He related a  case in which two men were  each driving a vehicle,                                                               
got into an argument, pulled over  into a parking lot, where both                                                               
had  a right  be, and  one shot  the other.   He  said that  case                                                               
settled with  a plea, but  "now it will  be litigated."   He said                                                               
the department anticipates  that cases like that  would [under HB
80] go to  trial more often.   He said the door would  be open to                                                               
arguing that cases now not  considered self defense would be self                                                               
defense under the proposed legislation.                                                                                         
                                                                                                                                
2:07:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES  directed attention  to  a  letter in  the                                                               
committee packet  dated March  15, 2010,  from the  Department of                                                               
law  to then  chair of  the House  Judiciary Standing  Committee,                                                               
Representative Jay  Ramras.  She  offered her  understanding that                                                               
the letter  referred to a prior  version of the bill  [House Bill                                                               
381], and she  ventured that some of the  concerns stated therein                                                               
may pertain to HB  80.  She cited a portion  of the letter, which                                                               
read as follows:                                                                                                                
                                                                                                                                
      Every experienced prosecutor with whom I have spoken                                                                      
     about this bill uniformly agrees that it would promote                                                                     
     violence and be a bad idea for our state.  We believe                                                                      
      that as drafted this bill will encourage unnecessary                                                                      
     violence in our state.                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLMES said she would  like Mr. Svobodny's opinion                                                               
regarding that letter written in 2010.                                                                                          
                                                                                                                                
CHAIR GATTO offered  his belief that HB 80  will reduce violence,                                                               
and cautioned against  making a decision about the  bill based on                                                               
fears of what  might happen.  He asked Lieutenant  Rodney Dial if                                                               
he thinks  there would  be more or  less violence  resulting from                                                               
having people more willing to protect themselves.                                                                               
                                                                                                                                
2:11:52 PM                                                                                                                    
                                                                                                                                
RODNEY   DIAL,  Lieutenant,   Deputy  Commander,   A  Detachment,                                                               
Division of  Alaska State Troopers,  Department of  Public Safety                                                               
(DPS),  said he  doesn't see  HB 80  affecting DPS  at all  or at                                                               
least  not dramatically  affecting the  number of  purported self                                                               
defense cases.   He said  most cases  of self defense  are clear,                                                               
and when  they are  not, the Alaska  State Troopers  contacts the                                                               
district  attorney prior  to making  the arrest.   He  concluded,                                                               
"It's just not something that I've  seen a lot of over the years,                                                               
so, it's  really hard  for me  to comment on  what may  happen if                                                               
this legislation is passed."                                                                                                    
                                                                                                                                
2:13:13 PM                                                                                                                    
                                                                                                                                
MR. SVOBODNY, in response to  a question, said he doesn't believe                                                               
that [passage of HB 80] would  result in an increase in violence.                                                               
He reiterated that the number of  cases will remain the same, but                                                               
the State  of Alaska will  have to spend more  time on them.   He                                                               
added that he does not know  of any cases where a purported self-                                                               
defense case was not screened out before going to trial.                                                                        
                                                                                                                                
REPRESENTATIVE  HOLMES asked  Lieutenant Dial  if an  increase in                                                               
the number  of cases  going to  trial would  mean an  increase in                                                               
workload for the Department of Public Safety.                                                                                   
                                                                                                                                
LIEUTENANT DIAL  reiterated that the department  does not believe                                                               
that HB 80 would have a significant impact on its activities.                                                                   
                                                                                                                                
2:15:45 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  noted that  members' packets  include 22  letters of                                                               
support for HB  80 and none in opposition.   He then relayed that                                                               
HB 80 would be held over.                                                                                                       

Document Name Date/Time Subjects
HB80 Hearing Request 02-02-11.pdf HJUD 2/9/2011 1:00:00 PM
HB 80
HB80 Witness List 02-02-11.pdf HJUD 2/9/2011 1:00:00 PM
HB 80
HB80 Version A 01-18-11.pdf HJUD 2/9/2011 1:00:00 PM
HB 80
HB80 Fiscal Note-DPS-AST-02-07-11.pdf HJUD 2/9/2011 1:00:00 PM
HB 80
HB80 Sponsor Statement 02-08-11.pdf HJUD 2/9/2011 1:00:00 PM
HB 80