Legislature(1995 - 1996)

04/22/1995 11:12 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 Number 200                                                                    
 HB 293 - USE OF FORCE DEFENDING PERSON OR PROPERTY                          
 REPRESENTATIVE VEZEY, bill sponsor, introduced HB 293.  It is                 
 intended to change a tendency we are seeing in the direction the              
 law is going.  It has been a premise in this country for many                 
 years, that a person's home is their castle, and that a person has            
 the right to feel safe and secure in their home.  There have been             
 an increasing number of court decisions which have limited a home             
 owner, or a rightful occupant of a home the right to protect                  
 themselves in their home, to the point where in some court rulings,           
 you virtually have to avoid confrontation if it is at all possible,           
 which puts an extreme burden of proof on the rightful occupant of             
 a home, if they are facing an intruder.  It is the intent of this             
 bill to clarify that a person has a right to defend themselves,               
 their family and their home.  The burden of proof in this would               
 shift to the intruder having to prove that the use of force or                
 deadly force was just not justified.  We do not have a Supreme                
 Court decision in the State of Alaska that is contrary to this.  We           
 have had a lower court ruling that was contrary to that.  In many             
 states, we are seeing the law evolve more toward the rightful                 
 occupant having to avoid the use of force if it is at all possible.           
 This puts a tremendous burden of proof upon the rightful occupant             
 of a home.  He felt the burden of proof ought to be on the person             
 who is not rightfully there.  He felt the rightful occupant of a              
 home should have the right to exceed the right of the intruder who            
 is violating the law.                                                         
 REPRESENTATIVE FINKELSTEIN was not real familiar with the current             
 rules we operate under, and would like the Department to explain              
 those.  What is an example of a particular circumstance that is not           
 covered under existing law?                                                   
 REPRESENTATIVE VEZEY did not feel this legislation to be contrary             
 to any decisions that have come down from the Supreme Court.  It is           
 contrary to some appeals court decisions, which establishes that              
 force has to be avoided if at all possible.                                   
 REPRESENTATIVE FINKELSTEIN asked for a hypothetical example where             
 someone would now be possibly subject to prosecution for shooting             
 an intruder, that this change would make it so that they would not            
 be subject to prosecution.                                                    
 REPRESENTATIVE VEZEY said if you look at the sponsor statement,               
 there are a number of nationwide cases that are cited.  There was             
 a case a court of appeals decision in the State of Alaska called              
 Van Ha v. the State of Alaska, Alaska Court of Appeals, Op. No.             
 1400, March 31, 1995.  In that case, the opinion stated that a                
 defendant claiming self defense in justification for the use of               
 force, must prove that he/she acted to avoid use of force.  What              
 this bill would do is to say that a rightful owner of a home would            
 no longer have to prove anything.  It would be up to the intruder             
 to prove that the rightful occupant of the home was not justified             
 in their actions.                                                             
 REPRESENTATIVE FINKELSTEIN was trying to recall the case where a              
 Japanese student got shot because it was Halloween.                           
 REPRESENTATIVE VEZEY believed that case occurred in the State of              
 CHAIRMAN PORTER did not believe the victim was inside the home.               
 REPRESENTATIVE FINKELSTEIN remembered that they were on the                   
 doorstep, on the property, and they were shot because the person              
 believed they were a danger but did not have a weapon, and this               
 would take the burden and switch it from the home owner to the                
 student, in this case.                                                        
 REPRESENTATIVE VEZEY said he could not give a hypothetical answer             
 in that case, because those decisions were made by a jury.  This              
 bill requires an unlawful entry, so he did not feel that fact                 
 situation would be covered by this bill.                                      
 CHAIRMAN PORTER said this bill requires unlawful entry, so he did             
 not think that fact situation would be covered by this bill.  We              
 have someone from the Department of Law and also Public Safety to             
 LAURIE OTTO, Assistant Attorney General, Criminal Division,                   
 Department of Law, spoke in opposition to the bill.  It would be              
 very difficult to overstate their opposition to this bill, and in             
 listening to the sponsor she felt that the bill goes far beyond               
 what she hears the sponsor describing as his intent.  The sponsor             
 talked about what sounded to her like civil actions against the               
 owner by a person who was shot by the owner or the family of the              
 person who was shot by the owner.  This bill applies in criminal              
 prosecutions as well.  The information the sponsor has been given,            
 both about the Van Ha case, and about the burden of proof, is               
 Ms. OTTO described what occurred in the Van Ha case.  It was a              
 Dillingham case involving two Vietnamese fishermen.  The guy who              
 ended up getting killed went over to the house of the person who              
 was eventually prosecuted.  They were drinking together and got               
 into a fight and the person who was killed beat up the person who             
 ended up being the defendant, and then left.  The defendant started           
 thinking about this and thinking it was not right, and thinking               
 that this guy should not have been able to beat him up, and                   
 thinking about threats that he had made to him.  So the next day,             
 the defendant got a shotgun and started stalking the person who had           
 beat him up, tracked him down, shot him nine times in the back.               
 This was many many hours after the altercation that started him               
 thinking about killing the person.  What the court said had nothing           
 to do with being in the house or killing somebody in the home, or             
 the burden of proof.  The ruling in that case, said you cannot                
 claim self defense when there is no eminent threat of harm.  That             
 is not something that would be changed in this bill, it is                    
 something that is inherent in the definition of force in our                  
 statutes, which requires that there be an eminent threat of harm.             
 That case does not have anything to do with somebody being able to            
 use self defense in their home.  She felt if somebody told                    
 Representative Vezey that, he was given misinformation.                       
 MS. OTTO said this does not just address when you can use deadly              
 force in the house.  It talks about all of the circumstances under            
 which you can use deadly force.  She gave an example to make her              
 point.  Her great great grandfather was a sheriff at the height of            
 the silver mining boom on the California Nevada border and ended up           
 dying in the line of duty, and so in her family, they have a lot of           
 stories about the code of the west, and how people were supposed to           
 behave.  She admitted her personal favorite author is Louis Lamour,           
 but one of the things that was true of the code of the West was               
 that if somebody threatens to hit you or punches you in the nose,             
 and they are not armed, you cannot kill them.  In the code of the             
 West you do not kill an unarmed man.  This bill, if you look at               
 lines 8 through 13, right now under current law, you can use deadly           
 force if you reasonably believe that the use of force is necessary            
 to prevent any one of a number of serious crimes.  What you see on            
 line 9 is that this expands it to say that you can use deadly force           
 against the threat of assault in any degree or any crime in AS                
 11.41.  Section 3 is the section of the current statute that spells           
 out when you have a duty to retreat.  Under current law, if you are           
 in your home, there is no duty to retreat, but under current law,             
 if you are in a public place, and you can retreat with complete               
 safety to yourself and to everybody else, you cannot use deadly               
 force.  Under this bill, as a result of these proposed changes, if            
 you were standing outside of a police station with the doors                  
 unlocked where you could go in at any time and somebody walked up             
 and said, "I am going to punch you in the nose," this would be                
 fourth degree assault which provides that by words or other                   
 conduct, one places somebody in fear of physical injury, you can              
 kill them.  If somebody commits the crime of custodial                        
 interference, which is a crime against a person under 11.41, in               
 other words, you have a divorced couple and the wife keeps the kids           
 two hours past when she is supposed to turn them over to her                  
 husband, under a joint custody agreement, and he goes over to her             
 house and says he wants the kids back and she says, "Let them                 
 finish watching Sesame Street," he can kill her.  If you have a               
 batterer situation, whoever is being battered can kill the other              
 person.  This is an invitation to legitimate, legal, justifiable              
 homicide, in a vast array of circumstances that she just does not             
 believe from reading the sponsor statement or from listening to the           
 sponsor is what he intended.                                                  
 MS. OTTO went through the sections of the bill that directly deal             
 with when you can use force in a dwelling.  She gave another                  
 example of a circumstance where it would be perfectly legitimate to           
 kill somebody under this bill.  If a husband and a wife were                  
 married for ten years and they own the house together, they lived             
 in it together and she got a domestic violence injunction against             
 him, and he decided he wanted to get back in and get his clothing             
 and waited until he saw her going to the store, and went in the               
 house, and she came back, she could kill him.  The reason she                 
 started by talking about Louis Lamour and the code of the West, and           
 all that, is because in our society, once we organized into cities,           
 and once we organized into states and into communities, what we did           
 is design a set of laws to resolve disputes, and hire police                  
 officers to intervene to help solve disputes, and hire district               
 attorneys so what we would not have is people just killing each               
 other all the time because one of the things they found in the old            
 west is that people got caught in the crossfire very frequently.              
 If you make it legal to use guns, under a wide array of                       
 circumstances, she guaranteed there would be innocent bystanders              
 being killed on a regular basis.                                              
 MS. OTTO closed by talking about the burden of proof which very               
 much concerned the sponsor.  In criminal cases, once somebody                 
 raises the defense of self defense by even the most minimal amount            
 of evidence, the state has the burden of proving beyond reasonable            
 doubt that it was not self defense.  In the sponsor statement the             
 Paul case was cited.  That was a case in which the court ruled that           
 even if the judge does not believe that there was self defense, if            
 the defendant raises it, he has to inspect the jury on self defense           
 and the prosecutor has to bear the burden of proving that it was              
 not self defense, and the prosecutor has to bear the burden of                
 proving beyond a reasonable doubt that it was not self defense.               
 She thought the burden of proof is in fact, not on the home owner             
 in criminal cases.  That is not the case in civil cases, and                  
 perhaps the sponsor's concern then is that the case related by                
 Representative Finkelstein and some of the other cases around the             
 country, from what she can see, are civil cases, where someone got            
 shot, or their families and there was a lawsuit.  Perhaps the way             
 to address the issues is to try to do something in the civil arena,           
 but in the criminal context, the Department is very, very opposed             
 to this bill.                                                                 
 REPRESENTATIVE BUNDE said he is very sympathetic to what                      
 Representative Vezey is trying to achieve.  He has to agree that              
 the Van Ha case, which he followed very closely because he knew             
 some people on the jury and we discussed it only after it was over,           
 he was not sure that was a good example, but on the other hand he             
 has been in situations where he has been told by law enforcement              
 officials, and he has been in situations where he has anticipated             
 having to defend the lives of family and property, mostly family,             
 and he said if you have to shoot someone, and they fall outside of            
 the house, run outside and pull them in, and you better make sure             
 that they are dead.  Now that puts the burden of proof on the                 
 aggrieved person.  Maybe it is the civil thing that needs to be               
 addressed, but how do we protect people who are protecting                    
 MS. OTTO thinks the law does protect people that are protecting               
 themselves.  Because there is such intense interest in homicide               
 cases on the part of both the community and family members, people            
 tend to run them by her before they decline prosecution, and we do            
 regularly decline prosecution on what would otherwise be homicide             
 cases, because somebody is claiming self defense.  As a result, it            
 is the state's burden of proving that something was not self                  
 defense.  Her feeling is that we do not have a problem in Alaska.             
 Nobody has ever identified a case to her in which we did have a               
 problem, or prosecuted somebody inappropriately.  Our criminal law            
 strikes a fair balance between the rights of the homeowner and the            
 rights of society.                                                            
 REPRESENTATIVE BUNDE said he did not think the law enforcement                
 officials  that he has talked to would agree with her.                        
 MS. OTTO said she has actually heard those comments.  The comments            
 she has heard are tied to people being afraid of being sued, and              
 not afraid of being prosecuted.                                               
 Number 600                                                                    
 DEL SMITH, Deputy Commissioner, Department of Public Safety, spoke            
 in opposition to HB 293.  It seems to go far beyond what he hears             
 the sponsor intending in a home to the extent that there are any              
 number of misdemeanors, including assault that Ms. Otto referred to           
 that would allow the use of deadly force, we are opposed to opening           
 that up.  A person claiming self defense and defending themselves             
 against an arrest that they perceived, does concern hi, because               
 there are circumstances where you could use non-deadly force to try           
 to prevent an arrest, but this might open Pandora's box and allow             
 deadly force.  He would be concerned about that, though he has not            
 done enough research to determine that exactly.  He is not as                 
 eloquent as Ms. Otto was in this, but does oppose the bill as                 
 written, for the reasons stated.                                              
 MR. SMITH added that he tried to arrange for the Anchorage Police             
 Department to testify but the witness slipped out of his grasp.  He           
 had also indicated that they were opposed to this bill as currently           
 written.  He agreed with the sponsor relative to the home, but he             
 feels that is adequately covered.  In response to the comment about           
 dragging the body inside, he really does believe that probably                
 refers to a civil case, and making sure someone is dead so that               
 they cannot sue.  He is not exactly sure that is absolute                     
 professional advice, it may be frustration sometimes on the part of           
 an officer who might state that, but he certainly understands it.             
 REPRESENTATIVE BUNDE clarified that was not given to him on the               
 record and as official advice.                                                
 CHAIRMAN PORTER closed the public hearing on HB 293.                          
 REPRESENTATIVE VEZEY said this is the only committee hearing in the           
 House, and is of course, the most appropriate committee.  It is not           
 his intention to rush this through.  He did spend a respectable               
 amount of time researching it and it is not intended to be a shell            
 of a potential statute, but he does recognize there could be other            
 facts that could be entering into this, and he asked if there could           
 be a subcommittee assigned to the bill.                                       
 CHAIRMAN PORTER said he would not be opposed to that idea, and                
 asked Representative Bunde and Representative Finkelstein if they             
 would be willing to look at it, with the sponsor most likely being            
 the chairman of the subcommittee.  They agreed to do so.                      

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