Legislature(1995 - 1996)
02/09/1996 01:10 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 293 - USE OF FORCE DEFENDING PERSON OR PROPERTY Number 1030 REPRESENTATIVE VEZEY introduced HB 293 as sponsor. He noted it was heard last year and stated that the purpose of this bill is to re- establish the principle that a person's home is their castle. They should have a right to feel safe and secure in their own home. This legislation greatly relaxes the burden of proof for someone to use deadly force to defend themselves in their home. It puts the burden of proof on the person who receives this deadly force to prove they were not indeed breaking the law or that they were not justifiably inflicted with the deadly force. Number 1070 CHAIRMAN PORTER noted that this legislation was brought back from a subcommittee, since this sub-committee was not able to meet. It was brought back for consideration to get the public testimony completed. He then introduced Lieutenant Chris Stockard to testify. Number 1100 LIEUTENANT CHRIS STOCKARD, Department of Public Safety, testified against HB 293. The department doesn't see a pressing need a change to the present law regarding the use of force in defense of persons or property. The present law provides adequate opportunity for a person who is potentially subject to serious harm, or within their own home, to use deadly force to defend themselves. Number 1140 REPRESENTATIVE BUNDE asked if other means would need to be exhausted before the use of deadly force was initiated. He wondered about a hypothetical homeowner, under possible sanctions of the law, who decided not to run but, shot first instead. LT. STOCKARD, stated he wasn't an attorney and wouldn't give legal advise, but explained the situation from the perspective of how a working police officer would view these provisions of law. AS 11.81.335 says that a person can use deadly force when they reasonably believe the use of deadly force is necessary for self- defense against death, serious physical injury, kidnapping, sexual assault in the first degree, sexual assault in the second degree, or robbery in any degree. It goes on further to establish that there is a duty to retreat rather than use deadly force, except when the person is within their own home, or premises which they own or lease. This duty of retreat has to been done with complete safety, not when the person thinks they can get away, but when they know for certain that they can get away successfully. LT. STOCKARD noted that current law clearly says a person is not required to exercise the option of using deadly force unless there is no other alternative. The state of Alaska doesn't feel they should encourage the use of deadly force to solve cases involving simple assault. The list of crimes to use self-dense for deadly force are serious crimes against a person. The bill as proposed would reduce this criteria to assault in any degree. The department has not seen any evidence that the current standards of discouraging people from using deadly force, except when there is no other alternative, has created a problem for the citizens. This is why the department opposes these changes. Number 1312 REPRESENTATIVE GREEN voiced his concerns about the standard of reasonableness when applied to these types of deadly force situations. It seemed to him that everyone present would represent a different perspective and attitude regarding an identical situation. LT. STOCKARD did not disagree with this. The current law calls for the standard of a reasonable belief that a person is in danger of any offense as outlined. He noted the example of a paranoid, delusional person who thinks they are going to be kidnapped. It might be found that using deadly force in this situation was not justified. On the other hand, someone may break into a house in the middle of the night. Under current law he didn't think there would be any liability attached to the home owner if they used deadly force in this situation. Lt. Stockard then used a personal illustration to make his point. Number 1496 REPRESENTATIVE FINKELSTEIN asked if Lt. Stockard in his experience had ever seen a case where he felt the interests of justice wasn't served by the prosecution of someone for the defense of home. Have there been cases where he thought there... LT. STOCKARD stated that he did not know of any case where an injustice might have happened and he said he could honestly say that he was not aware of any in the state of Alaska where this has been the case. He said that deadly force should be carried out as the last resort. REPRESENTATIVE FINKELSTEIN noted for the record, that last year some of these same questions came up and then, as well as now, there were no examples of miscarriages of justice which had resulted from the existing law. BERNARD GOODNO, testified in opposition of HB 293 since the constitution of the United States reaffirms his right of self defense. "God gave me the right." He said he resented the legislature wanting to take this right away in order to make it a state privilege. He resents this. Mr. Goodno also noted it was time the Alaska Legislature stopped being a puppet to the corporate and federal government. He also pointed out that they were elected to uphold the federal and Alaska constitutions. GENE OTTENSTROER, testified in opposition of HB 293 as a sovereign citizen. He noted that Article 9 of the U.S. Constitution already gives them the right to protect their property, as well as, Article 1, section 1 of the Alaska Constitution. Number 1836 REPRESENTATIVE FINKELSTEIN made a motion to move amendment number 1. REPRESENTATIVE Toohey objected. She stated that she was comfortable with the way the bill presently read. Representative Vezey also opposed the amendment. REPRESENTATIVE Finkelstein pointed out this amendment would leave in place the concept of defense of dwelling in Section 2, but would take out the concept of acting in self-defense against threat of criminal assaults, more specifically he proposed to delete on page 1, lines 3 to 13. CHAIRMAN PORTER requested a roll call vote. Representatives Bunde, Finkelstein and Porter voted in favor of amendment number 1. Representatives Toohey, Vezey and Green voted against amendment number 1. Amendment number 1 failed. Number 2075 REPRESENTATIVE FINKELSTEIN made a motion to move amendment number 2 regarding the involved standard. He noted that just because someone might act in self-defense, this does not address intent at all. More specifically this amendment attempts to delete on page 1, lines 8 to 9 and to insert the following, "reasonably believes the use of deadly force is necessary for self-dense against death, serious physical injury, kidnapping, sexual assault in the first degree, sexual assault in the second degree, or robbery in any degree." REPRESENTATIVE VEZEY objected to amendment number 2. CHAIRMAN PORTER requested a roll call vote. Representatives Toohey and Vezey voted against amendment number 2. Representatives Finkelstein, Green, Bunde and Porter voted in favor of amendment number 2. Amendment number 2 passed. Number 2156 REPRESENTATIVE FINKELSTEIN withdrew amendment number 3 and made a motion to move amendment number 4. This amendment responded to the testimony from the Department of Public Safety, regarding whether someone reasonably believes a crime has been committed and reasonably believe physical force is necessary. More specifically this amendment attempts to delete on page 1, line 8 and to insert the following, "reasonably believes the use of deadly force is necessary for self-defense against." REPRESENTATIVE GREEN objected to amendment number 4. Representative Green pointed out that when someone is in their home and another person has violated these premises he felt as though the home owner has the right to take whatever action is necessary. This intruder should not be on the premises under any circumstances. REPRESENTATIVE BUNDE made the point that maybe there was a legal connotation behind the word reasonable which they were not taking into affect. Using Representative Green's example he thought it would reasonable to believe that this intruder was a threat and he would have the right to defend himself. CHAIRMAN PORTER believed a degree of reasonableness would be required in this interpretation in the first place. Representative Vezey added that the word reasonable is considered to be the most litigated word in the English language. Number 2486 ANNE CARPENETI, Department of Law, testified that "reasonable under the circumstances" is how this is usually interpreted. TAPE 96-18, SIDE A Number 000 MS. CARPENETI stated that the committee should use the words "reasonable person" in the statute if this is the standard they want. REPRESENTATIVE GREEN asked what would happen if this phrase wasn't inserted, would it essentially mean the right to "blast." MS. CARPENETI said this was one of the reasons why the Department of Law strongly opposes this bill, that the phrase "reasonable person" as a standard is not included in this section. Number 068 REPRESENTATIVE FINKELSTEIN pointed out that the word reasonable helps to define reasonable under the circumstances. The lack of the word reasonable doesn't require that the person using deadly force should do so reasonably. He used the example of an eight year old getting into a house unannounced. Representative Finkelstein also noted that the phrase "no matter how slight" is also proposed as part of this legislation. CHAIRMAN PORTER requested a roll call vote on amendment number 4. Representative Vezey voted against amendment number 4. Representatives Finkelstein, Green, Bunde, Toohey and Porter voted in favor of amendment number 4. Amendment number 4 passed. Number 320 REPRESENTATIVE FINKELSTEIN asked that they rescind their action on amendment 1 since it didn't make sense as he initially phrased it. He stated that the committee had taken a step to fix the second part of this legislation by adopting amendment number 4. The problem still exists in the expansion of the crimes covered under the section which amendment number 1 adressed, including the example of custodial interference as presented earlier. Based on this, he thought it would be the best solution to eliminate this section and get back to the issue of defense of personal properties in someone's home. CHAIRMAN PORTER requested a roll call vote to rescind the action taken on amendment number 1. Representative Finkelstein voted in favor of this recision. Representatives Green, Bunde, Toohey, Vezey and Porter voted against the recision. The recision on amendment number 1 failed. Number 477 REPRESENTATIVE BUNDE made a motion to move HB 293 as amended, with attached fiscal notes and individual recommendations. Representative Finkelstein objected. CHAIRMAN PORTER requested a roll call vote. Representative Finkelstein voted against the motion to move HB 293. Representatives Green, bunde, Toohey, Vezey, and Porter voted in favor of the motion to move HB 293. HB 293 was moved from the Judiciary Committee.