Legislature(1993 - 1994)

04/06/1994 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  CSHB 417 - POSSESSION OF FIREARMS IN SCHOOL LOCKERS                          
                                                                               
  Number 833                                                                   
                                                                               
  PATTY SWENSON:  "My name is Patty Swenson, and I'm a member                  
  of Representative Bunde's staff.  HB 417 basically allows                    
  school lockers to be searched after the publication of a                     
  notice for at least two weeks.  And it makes the existing                    
  crime of misconduct involving a weapon in the fourth degree,                 
  a Class A misdemeanor.  I think that - please just ask me                    
  some questions and I'll try to answer them.  Margot Knuth is                 
  here to also answer questions."                                              
                                                                               
  Number 846                                                                   
                                                                               
  REPRESENTATIVE NORDLUND:  "Thank you.  I didn't see anything                 
  in the back-up regarding any possible constitutional                         
  problems of search and seizure issues and it wasn't                          
  addressed in any of the back-up and I was wondering what the                 
  answer to that..."                                                           
                                                                               
  Number 852                                                                   
                                                                               
  MARGOT KNUTH, Criminal Division, Department of Law:  "There                  
  is a United States Supreme Court decision indicating that                    
  searches such as this are not violative of rights of                         
  privacy, or the prohibition against unreasonable search and                  
  seizures under the United States Constitution.  And we also                  
  have two Alaska Supreme Court decisions that have touched on                 
  this issue.  Neither of them directly, but both of them are                  
  indicative that this would be constitutional.  And the                       
  reason has to do with the school owns these lockers, and                     
  they are provided to students.  If you provide notice that                   
  lets the students know that their lockers may be searched,                   
  this is considered reasonable balancing between the                          
  student's right of privacy in the space that they are using,                 
  with the state's need for providing a safe area for                          
  education to be going on.  The fourth amendment protections                  
  are greater for searching the student's person than they are                 
  for searching the locker.  There is sort of a continuum, and                 
  school lockers are beneath both the student's car and                        
  searching the student's person in terms of the amount of                     
  protection that they are getting.   This bill essentially is                 
  setting out specific guidelines and parameters for something                 
  that is allowed under constitutional law already, but it                     
  will increase the schools' comfort with the practice, and it                 
  increases our comfort that there are guidelines set out, and                 
  now they know what to do.                                                    
                                                                               
  "Speaking to the other part of the bill, the Department of                   
  Law had, in fact, supported making it a felony instead of                    
  just  a Class A misdemeanor for there to be a possession of                  
  firearms on school grounds, but the sponsor of the bill was                  
  reluctant to go that far, for reasons...                                     
                                                                               
  TAPE 94-57, SIDE B                                                           
  Number 000                                                                   
                                                                               
  MS. KNUTH continued "when this type of violation occurs,                     
  right now it has been a Class B misdemeanor, which is the                    
  very lowest level of offense, and it hasn't allowed                          
  authorities any flexibility in trying to deal with what they                 
  consider to be a serious matter.  To have a gun on school                    
  grounds is the antithesis of what we are trying to                           
  accomplish in education and the more serious an offense                      
  level it is, the more flexibility authorities have in trying                 
  to deal with the situation, so just moving it up to a Class                  
  A misdemeanor helps a great deal."                                           
                                                                               
  CHAIRMAN PORTER:  "This bill moves the offense to a Class A                  
  misdemeanor, of having a firearm on school property period,                  
  let alone a locker."                                                         
                                                                               
  MS. KNUTH:  "That's right."                                                  
                                                                               
  REPRESENTATIVE NORDLUND inquired what is was now.                            
                                                                               
  MS. KNUTH responded is was a Class B.                                        
                                                                               
  Number 028                                                                   
                                                                               
  LARRY WIGET, Director of Governmental Relations for the                      
  Anchorage School District testifying via teleconference.  He                 
  said that their executive director wrote a memorandum of                     
  support for HB 417 which would provide statutory support for                 
  administrative procedures already in place in the Anchorage                  
  School District.  The Anchorage School District parents and                  
  students have discussed and approved the concept of locker                   
  searches in the Anchorage schools.  At the request of one of                 
  the legislators, they hired attorneys to take a look at                      
  this.  They provided a letter of support, also.  Schools                     
  have had problems with people having guns in school parking                  
  lots who are not even students.  Therefore, the gun owners                   
  are not subject to the school's administrative rules.  Law                   
  enforcement officers are not able to assist in helping                       
  school officials until some altercation breaks out, and the                  
  school administrator makes a citizens arrest for trespassing                 
  under local ordinances.  By the time a situation gets to the                 
  point of an altercation where a citizens arrest is                           
  necessary, the safety of school personnel and students has                   
  already arisen.  But local law enforcement agencies have no                  
  criminal law to enforce those situations.  The proposed law                  
  would be a meaningful remedy and aid to school                               
  administrators.  If the bill was passed, the school would be                 
  able to call the local law enforcement agencies, who would                   
  be able to intervene with possession of a deadly weapon law.                 
  Moreover, such a law would have a deterred impact,                           
  particularly on the non-students.                                            
                                                                               
  MR. WIGET stated briefly, regarding the possession of school                 
  lockers, the proposed law would grant broad authority for                    
  school officials to conduct general random searches of                       
  school lockers with advance notice.   Although there has not                 
  been an exhaustive constitutionality analysis of this                        
  measure, then (indiscernible) cases have greatly expanded                    
  the authority of school officials to conduct random                          
  searches.  In Isaiah B. v. State of Wisconsin, 500 North                     
  West 2nd 637, Wisconsin, 1993, the proposed law would                        
  undoubtedly serve as a significant deterrent to students                     
  bringing weapons, drugs, or alcohol within the school.  If                   
  the school districts adopt appropriate policy to implement                   
  this provision, they are confident the legislation could be                  
  applied in a constitutional manner.                                          
  MR. WIGET commented that the section on the locker searches                  
  could be made more broad so as to allow notification of the                  
  searches through the student handbook and perhaps permanent                  
  posting of notices of a right to search in each school.                      
                                                                               
  Number  130                                                                  
                                                                               
  REPRESENTATIVE DAVIDSON:  "Mr. Wiget, how many incidents of                  
  weapons possession problems did you have within your school                  
  district this past school year?"                                             
                                                                               
  Number 138                                                                   
                                                                               
  MR. WIGET:  "I don't have those figures before me.  We had                   
  provided them to someone else...I know there have been                       
  several and I don't have the specific number at the tip of                   
  my tongue.  If you'd like, I could have that information                     
  sent down to you."                                                           
                                                                               
  Number 147                                                                   
                                                                               
  MS. SWENSEN:  "I have those numbers here and they're also                    
  included in your packet, I believe.  For 1993, there was a                   
  total of 106 suspensions for all types of weapons-related                    
  incidents, and for this year, the only numbers we have                       
  available, the breakout is minimal for the first two                         
  quarters of the year, and they went down significantly.  As                  
  a matter of fact, there were 36 in the second quarter, 32 in                 
  the first quarter."                                                          
                                                                               
  Number 173                                                                   
                                                                               
  REPRESENTATIVE NORDLUND:  "I'm kind of curious about the                     
  section of the bill that requires the posting of signs.  Was                 
  that done for some concern about the possible                                
  constitutionality of the bill?"                                              
                                                                               
  MS. KNUTH:  "I don't know if it's constitutionally required,                 
  but it is an appropriate measure to, as I say, balance the                   
  student's right of privacy against the interest we're trying                 
  to protect in searching the lockers.  I don't know if it's                   
  mandatory, but it's something that the ACLU is behind, and                   
  there has been no objection to the concept by the school                     
  district."                                                                   
                                                                               
  REPRESENTATIVE NORDLUND:  "Mr. Chairman, I guess my concern                  
  is that it says you should post a sign two weeks before the                  
  search is going to be conducted, or that you can leave a                     
  sign up continuously, so you can search any time.  I mean, I                 
  think that's kind of (indiscernible).  Basically, a search                   
  can be conducted any time as long as there is a sign up.  I                  
  don't understand that.  It seems that you're trying to have                  
  it both ways or something."                                                  
                                                                               
  Number 203                                                                   
                                                                               
  MS. KNUTH:  "All you're trying to do with the sign is to let                 
  the student know at any time during the semester that their                  
  lockers are subject to inspection, and, if you provide that                  
  notice on the first day, or if you provide it two weeks                      
  before, the point isn't, `Everybody clean out your lockers                   
  and carry the gun in the back belt for this one day when                     
  we're doing the search and then put it back in there, and                    
  feel comfortable about that;' it's to say that `at no point                  
  should you have contraband like this on school grounds and                   
  you should know now and for the next 250 days of the school                  
  session that your interest in privacy in your school locker                  
  is minimal.'"                                                                
                                                                               
  Number 222                                                                   
                                                                               
  REPRESENTATIVE NORDLUND:  "So why not just notify the                        
  students that their lockers can be searched and dispense                     
  with the whole notion of the two weeks in advance business?                  
  It makes it seem like they have some warning when they - in                  
  practical - they probably wouldn't.  I imagine the Anchorage                 
  School District would make that a standing policy that their                 
  lockers could be searched at any time, which apparently, is                  
  constitutional, so why provide the two week notice                           
  business?"                                                                   
                                                                               
  MS. KNUTH:  "To make sure that the student does know and                     
  otherwise what - send a note home..."                                        
                                                                               
  REPRESENTATIVE NORDLUND:  "Leave a sign up permanently so                    
  the students are notified."                                                  
                                                                               
  REPRESENTATIVE BUNDE:  "Mr. Chairman, that is one of the                     
  options that the sign can be posted permanently."                            
                                                                               
  Number 238                                                                   
                                                                               
  CHAIRMAN PORTER:  "The question was since that would seem to                 
  be the less - would cause the least amount of activity for                   
  the school, and that's probably what they would do.  But it                  
  isn't necessarily so, I mean these signs might - we might                    
  want to work something out with the kids where they wouldn't                 
  want to do that all the time, but if they had some more                      
  problems... What I guess this does guarantee is that you                     
  can't put up a sign at 9 o'clock and search the lockers at                   
  9:05.  Not that I'm necessarily opposed to that, but...."                    
                                                                               
  REPRESENTATIVE NORDLUND:  "They're going to be searching                     
  lockers at any time, anyway.  It doesn't really make any                     
  difference.  If they could be given notice aside..."                         
                                                                               
  CHAIRMAN PORTER:  "No, not under this law.  They will not be                 
  able to search lockers unless they have posted a sign to                     
  these dimensions for two weeks or have one posted                            
  permanently."                                                                
                                                                               
  REPRESENTATIVE NORDLUND:  "Well, once the sign is posted                     
  permanently, then it's...(indiscernible) posted, I think                     
  it's a fine idea, but I'm just kind of curious...."                          
                                                                               
  Number 265                                                                   
                                                                               
  REPRESENTATIVE JAMES:  "I guess that I'm having the same                     
  concern that Representative Nordlund is.  I don't see - I                    
  mean I can visualize now - I guess they come to school and                   
  you put a sign up and that means the first two weeks you                     
  can't search their lockers.   I see that as a loophole                       
  however, and I would like to have it be so that you must                     
  have a permanent sign up, so they always know that their                     
  locker can be searched.  I'm not going to object to this                     
  bill, I'm not planning an amendment, I'm just making that                    
  statement.  But I would feel a lot more comfortable if that                  
  was the requirement.  And I'm a little uncomfortable with                    
  the two weeks, when school starts, that you can't                            
  (indiscernible) the lockers.  I'm a little uncomfortable                     
  with that, I'd rather have it be that you could always do                    
  it.  And whatever is required to make that happen, I would                   
  feel a lot more comfortable."                                                
                                                                               
  Number 287                                                                   
                                                                               
  REPRESENTATIVE KOTT:  "I was going to bring up basically the                 
  same point that my colleague from North Pole brought up                      
  (indiscernible) and go a step further.  Why even post any                    
  signs?  Don't we have a provision right now where school                     
  officials can search lockers or is there some probable cause                 
  that's required we can actually search a locker - like for                   
  illegal substances - don't we have some kind of provision                    
  this is somewhat mirroring that application?"                                
                                                                               
  MS. KNUTH:  "Mr. Chairman, there was a time when we thought                  
  that school officials could go into lockers with no                          
  articulable basis at all, and that because they were not law                 
  enforcement officials, that this should be acceptable.  And                  
  that is a ruling  from the Alaska Supreme Court.  There was                  
  a subsequent decision to cast doubt on that, that                            
  essentially school officials are acting in much the same                     
  capacity as law enforcement officials and therefore, you                     
  need either something short of probable cause, either an                     
  articulable reason for this given search, or you need to be                  
  conducting a random wholesale inspection program.  And this                  
  is more what is being authorized under this bill, and what's                 
  being clarified here is the random searches where you are                    
  trying to deter students from using their locker for these                   
  items at all, because they don't know whether theirs is the                  
  one that is going to be searched or not.  We don't                           
  anticipate every locker being inspected, although that is                    
  possible.  But just enough to deter students  from bringing                  
  contraband and weapons to school."                                           
                                                                               
  Number 332                                                                   
                                                                               
  CHAIRMAN PORTER:  "I guess a question either the sponsor or                  
  you, Margot, having a general feeling for these cases, I                     
  would have been under the impression that a school would be                  
  within its constitutional rights in the normal course of                     
  furnishing information to parents and students - bulletins,                  
  whatever - at the beginning of the school year to say that -                 
   and maybe even require a signature and return or something                  
  - that school property, including lockers are subject to                     
  random searches at any given time; and that would suffice                    
  without any need for signs or anything else.  Is there                       
  something I'm missing?"                                                      
                                                                               
  REPRESENTATIVE BUNDE:  "If I could respond as one                            
  (indiscernible), getting signed notices back is not an easy                  
  thing to do and certainly if it didn't come back, that would                 
  be a loophole there."                                                        
                                                                               
  CHAIRMAN PORTER:  "Well, I meant - I said that, but I                        
  quickly wanted to retract it.  What I meant was the normal                   
  course of supplying information would suffice, to me."                       
                                                                               
  REPRESENTATIVE BUNDE:  "Proving that they received the                       
  information, I think...I would expect that it would be                       
  part..."                                                                     
                                                                               
  CHAIRMAN PORTER:  "I don't think that that would be a                        
  requirement -  that you wouldn't have to prove that they got                 
  it.  If this is the way that a school normally provides                      
  information to kids and parents, tough.  Ignorance of                        
  a...that would be my..."                                                     
                                                                               
  MS. KNUTH:  "I think you're correct, and then Mr. Chairman I                 
  think that this is codifying existing law and it's adding                    
  some safeguards that people have expressed concern about                     
  that schools are willing to do, but - right - this is more a                 
  comfort zone bill than any change in the law and in terms of                 
  the concerns expressed by Representative James, if we find                   
  that there is a first two week high incident period of                       
  weapons on school grounds, there will be a change                            
  requested."                                                                  
                                                                               
  CHAIRMAN PORTER:  "My preference would be to write a bill                    
  that reflects the laws that exist and allow schools to go                    
  further, if they so choose, by virtue of their advice that                   
  they receive from their own legal people.  But why should we                 
  try to - by perhaps trying to be so protective of individual                 
  rights - just write a law that has loopholes in it."                         
                                                                               
  REPRESENTATIVE BUNDE:  "...a couple of items here.  One is                   
  the loophole of two weeks, as I envision it, once that                       
  loophole only exists for the first time that the sign is                     
  posted, if it's going to be posted as an ongoing thing.  And                 
  then the next year, that sign is then policy for an entire                   
  year.  So, I don't see that the first two weeks.."                           
                                                                               
  CHAIRMAN PORTER:  "(Indiscernible) the question, why is                      
  there a two week interval?"                                                  
                                                                               
  REPRESENTATIVE BUNDE:  "If I could just finish on the sign                   
  notification.  Again, dealing with students - sending                        
  information home at the beginning of the year is                             
  (indiscernible) - it's good, but I think there's a deterrent                 
  affect if there's a reminder - a posted sign -  that the new                 
  kid in school,  somebody who - it's now spring and they                      
  forgot about the regulations.  If they have a posted sign it                 
  encourages compliance."                                                      
                                                                               
  REPRESENTATIVE NORDLUND:  "I'd like to offer an amendment.                   
  On page three, line 26, put a period after school and delete                 
  the rest of that paragraph."                                                 
                                                                               
  CHAIRMAN PORTER:  "That would then read, `Notices and                        
  letters, at least two inches high stating the right and the                  
  intention of school and school district officials to permit                  
  searches and examinations under (a) of this section shall be                 
  posted in prominent locations throughout a school.'"                         
                                                                               
  REPRESENTATIVE NORDLUND:  "And I might add, Mr. Chairman, I                  
  think it's a  good place to - I don't know if we can meet                    
  the two inches high criteria - but a good place to post the                  
  signs, would be on the inside door of the locker.   Just                     
  plaster it on there and say, every time a kid opens their                    
  locker, they're going to see a sign that says `Be aware,                     
  this locker could be searched.'"                                             
                                                                               
  REPRESENTATIVE JAMES:  "I have a friendly amendment."                        
                                                                               
  CHAIRMAN PORTER:  "Representative James has a friendly                       
  amendment to the amendment."                                                 
                                                                               
  REPRESENTATIVE JAMES:  "Well, in the second sentence, I'd                    
  rather take `may' out and put `shall.'  Notices under this                   
  subsection `shall'...."                                                      
                                                                               
  CHAIRMAN PORTER:  "That's out."                                              
                                                                               
  REPRESENTATIVE JAMES:  "Oh, you're taking that out, as                       
  well?"                                                                       
                                                                               
  CHAIRMAN PORTER:  "I believe so."                                            
                                                                               
  REPRESENTATIVE NORDLUND:  "I'm taking out the entire rest of                 
  the paragraph."                                                              
                                                                               
  REPRESENTATIVE JAMES:  "Okay, not a problem."                                
                                                                               
  CHAIRMAN PORTER:  "...for two weeks on line 26, all of 27                    
  and  all of 28."                                                             
                                                                               
  CHAIRMAN PORTER asked Mr. Wiget if he was familiar with the                  
  notice provision - posting of a sign on page three of the                    
  bill - line 24, page three?  "I don't know if you're                         
  familiar with this portion of the bill, but there's a                        
  portion of the bill that says that a school will post a sign                 
  in the school for at least two weeks or either that or                       
  continuously, to notify of the schools' right and intention                  
  to search lockers.  We're  taking out the two weeks, or                      
  there's an amendment proposed to take out the two weeks that                 
  would just leave it to say that notices in letters of at                     
  least two inches high, stating the right and intention of                    
  the school and district officers to permit searches and                      
  examinations under (a) of this section shall be posted in                    
  prominent locations throughout the school, period."                          
                                                                               
  MR. WIGET:  "That is consistent with my conversation with                    
  Dr. (indiscernible) in which we were talking just about the                  
  permanent placement of a sign in the building, or perhaps                    
  even notification in the student handbook, to deal with this                 
  issue."                                                                      
                                                                               
  CHAIRMAN PORTER:  "Okay, very good.  That seems..."                          
                                                                               
  REPRESENTATIVE NORDLUND:  "Can I move the amendment?"                        
                                                                               
  CHAIRMAN PORTER:  "Move the amendment?  We'll call it                        
  amendment number 1 which for the record, is removing `for                    
  two weeks' on line 26, all of line 27, all of line 28 on                     
  page three of CS for HB 417(HES), which is in front of us.                   
  Representative Phillips."                                                    
                                                                               
  REPRESENTATIVE PHILLIPS:  "Mr. Chairman,  if we could ask                    
  the sponsor what his thoughts are on that?"                                  
                                                                               
  Number 477                                                                   
                                                                               
  REPRESENTATIVE BUNDE:  "Thank you.  We have, I think                         
  addressed that somewhat in our previous conversation.  I'm                   
  just wanting  to try to be as bullet proof as possible, so                   
  if someone's caught with contraband, that there won't be a                   
  legal challenge and that the - without the two week proviso,                 
  is there some possibility that this was capricious or                        
  arbitrary... I don't oppose the amendment, certainly in                      
  concept, I just want to make sure that we don't create                       
  loopholes, as I mentioned earlier."                                          
                                                                               
  Number 485                                                                   
                                                                               
  CHAIRMAN PORTER:  "For the record, it certainly is my                        
  opinion  and agreed upon by the Department of Law                            
  representative here, that this goes beyond the requirement.                  
  The resulting section (b) here on page four of section four,                 
  still goes beyond the requirement that my impression of the                  
  law requires."                                                               
                                                                               
  REPRESENTATIVE BUNDE:  "I'd certainly defer to people with                   
  more experience in the law, than myself."                                    
                                                                               
  Number 492                                                                   
                                                                               
  MS. KNUTH:  "I do believe that that's accurate.  I would be                  
  slightly more comfortable if only the two weeks - the word                   
  `two weeks' was taken out and if the rest of it were left.                   
  But that's probably just a lawyer who loves words,  and gosh                 
  you're taking out 16 of them or..."                                          
                                                                               
  Number 520                                                                   
                                                                               
  CHAIRMAN PORTER:  "We would end up with the same intent.                     
  Jim, would you consider that a friendly amendment?"                          
                                                                               
  REPRESENTATIVE PHILLIPS:  "Mr. Chairman, we could add one                    
  word in to take the place of the 16 words out.  We could add                 
  `continuously' on line 26 - `shall be continuously posted.'"                 
                                                                               
  REPRESENTATIVE JAMES:  "I have a problem with that.  I don't                 
  know how many of these kids will climb up and take the sign                  
  down and, you know, I think that that might be a problem."                   
                                                                               
  REPRESENTATIVE PHILLIPS:  "Let's leave it out then, Mr.                      
  Chairman."                                                                   
                                                                               
  REPRESENTATIVE NORDLUND:  "Mr. Chairman, I guess my only                     
  concern about - I think there might be some expectation                      
  that, with Margot's suggestion, there might be some                          
  expectation that there be some posting of signs before a                     
  certain search was going to happen.  And if it's just a                      
  standing policy that any time you beware that your locker                    
  can be searched at any  time, you're just better off."                       
                                                                               
  CHAIRMAN PORTER:  "I think so, too.  Is there further                        
  discussion of the amendment?  Is there objection?  Hearing                   
  none, we have adopted the amendment.  We have in front of us                 
  the bill, as amended, what's the wish of the committee?                      
  Representative James."                                                       
                                                                               
  REPRESENTATIVE JAMES:  "Thank you, Mr. Chairman.  I would                    
  move that we move the CS, version R, as amended with a zero                  
  fiscal note out of committee, with individual                                
  recommendations."                                                            
                                                                               
  CHAIRMAN PORTER:  "Motion to move, with individual                           
  recommendations, zero fiscal notes.  Is there discussion?                    
  Representative Phillips."                                                    
                                                                               
  Number 530                                                                   
                                                                               
  REPRESENTATIVE PHILLIPS:  "Mr. Chairman, may I to the                        
  sponsor, or to Margot, I don't see any policy statement or                   
  any statement of support from the Department of Public                       
  Safety.  Did you have any interaction with them and  - I                     
  have a fiscal note, but I don't find a statement from them."                 
                                                                               
  Number  534                                                                  
                                                                               
  MS. SWENSON:  "Mr. Chairman, Representative Phillips, I                      
  spoke with the Department of Public Safety and they said                     
  they had no interest either way in the bill."                                
                                                                               
  Number 540                                                                   
                                                                               
  CHAIRMAN PORTER:  "Further discussion?  Is there objection?                  
  Hearing none, the bill is moved.  Anything for the good                      
  (indiscernible)?  Seeing none, we are adjourned."                            
                                                                               

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