Legislature(1993 - 1994)
04/06/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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."