Legislature(1995 - 1996)

02/09/1996 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                   
 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                   
 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             
 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                
 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                         
 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               
 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.                                                          

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