04/02/1998 08:00 AM House STA

SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS                                
                                                                               
CHAIR JAMES announced the next order of business would be SB 309,              
"An Act relating to the use of force by peace officers and                     
correctional officers," sponsored by Senator Jerry Ward.                       
                                                                               
Number 0017                                                                    
                                                                               
CRAIG JOHNSON, Legislative Administrative Assistant to Senator                 
Jerry Ward, Alaska State Legislature, came before the committee to             
present the sponsor statement.  He indicated this is a very simple             
bill.  He stated that technology has somewhat caught up with some              
of our laws and said the way the law currently reads is that any               
projectile fired from a weapon capable of firing a lethal                      
projectile is considered a lethal weapon.  He explained that SB 309            
removes the incapacitating rounds that the police officers use in              
situations that are not intended to permanently injure or kill                 
someone.  It takes them off the list of nonlethal weapons.  He                 
referred to an article from the Anchorage Daily News entitled,                 
"Bullet stops suicide", which is in the committee members' packets.            
He said the incident described in the newspaper happened after                 
Senator Ward filed SB 309.  He indicated they didn't plan it, but              
it couldn't have happened at a better time.  Mr. Johnson explained             
that it was a situation where a woman was holding herself hostage              
with a knife, threatening to commit suicide.  The police department            
determined that the best way to stop this attempt was to use a                 
beanbag round.  He noted that it prevented an officer from having              
to go in and disarm the individual; it protected her life and it               
protected his life.                                                            
                                                                               
MR. JOHNSON noted that this bill was generated as a request from               
the Anchorage Police Department SWAT Team.  He pointed out that                
Senator Ward's son-in-law is a member of the Anchorage SWAT Team.              
He indicated that the SWAT team doesn't feel like they're                      
protected.  He said if they use one of these rounds under specific             
orders from their supervisors with proper training, there is still             
the opportunity that they could face liability based upon using a              
lethal firearm in a nonlethal situation.                                       
                                                                               
Number 0045                                                                    
                                                                               
REPRESENTATIVE JOE RYAN stated that on the surface, SB 309 doesn't             
appear to have any problems.  He then asked what if a peace                    
officer/guard used a nonlethal firearm and he's a little close and             
causes grievous bodily harm or death.  He said a person can be                 
killed if they're close enough from the (indisc.) on a blank round.            
He said he is concerned about taking the liability away from police            
officers, especially prison guards, and he is concerned that                   
someone will get hurt and the peace officer/guard will walk free.              
He asked how the legislature can make sure that the officers are               
responsible for their actions.                                                 
                                                                               
MR. JOHNSON said, "The bill clearly states that operating within               
the guidelines and by a fully-trained officer."  He said the bill              
would not cover an officer who has not been properly trained or is             
not operating within the specified guidelines set forth by the                 
Department of Corrections.  The bill would not cover someone who               
blatantly did it.  This bill would cover the rare accident.  SB 309            
does not indemnify someone from being sued.  He said if an officer             
acts negligent, they should be held responsible for their actions.             
                                                                               
Number 0067                                                                    
                                                                               
REPRESENTATIVE RYAN said if he inadvertently kills someone, it's               
manslaughter.  If a public employee inadvertently kills someone,               
it's a civil law suit and he indicated that that bothers him that              
public employees are not tried under the same criminal statutes                
that any other citizen would be.  He said he does not trust any                
officers or guards because if you don't watch them, they will do               
some of the worst things that have ever been done.                             
                                                                               
CHAIR JAMES said she would like to respond to Representative Ryan's            
last statement from her position on that issue.  Speaking only for             
herself, she said there is a world of people who make mistakes; and            
there is a world of people who have the wrong attitude and are not             
trustworthy.  She said she is not willing to take the position that            
no one is trustworthy.  She likes to believe that everyone is                  
trustworthy and when she finds they are not, then she will know                
that.  She can't live in fear of every single person.                          
                                                                               
Number 0080                                                                    
                                                                               
REPRESENTATIVE KIM ELTON stated that he does not see a distinction             
between correctional officers who are employed by the state or                 
correctional officers who are employed by a private firm.  He asked            
what the definition of a peace officer is.                                     
                                                                               
MR. JOHNSON advised that there is a statutory definition of peace              
officer and correctional officer.  He noted that one of the                    
amendments proposed in a previous committee mentioned "guard"                  
throughout the legislation and the Department of Corrections                   
testified on behalf of that bill in support of it and asked to have            
the term "guard" changed to "correctional officers."  They found               
that correctional officers have no status in statute, where guard              
did, and it would have required a substantial rewrite to make that             
change.  He then referred to Representative Elton's question                   
regarding the definition of peace officer.  He indicated that                  
private correctional officers are very new to Alaska and he does               
not know if they have defined that yet.  He commented that the                 
operative term in the bill is "properly trained."  If a                        
correctional officer has been through the SWAT team training and               
has been trained to use the nonlethal firearm and beanbags, he                 
thinks they would fall under this legislation.   He reiterated that            
"proper training" and "under orders" covers that area.                         
                                                                               
Number 0095                                                                    
                                                                               
REPRESENTATIVE ELTON asked if "proper training" would be defined by            
the court.                                                                     
                                                                               
MR. JOHNSON replied he believes it's a police standard that they               
would have to meet.  Currently, there are only about half a dozen              
police officers in Anchorage that are trained to use the nonlethal             
firearms, which is the SERT (Special Emergency Reaction Team) team             
and the SWAT (Special Weapons And Tactics) team.  He indicated that            
they are highly trained and go through regular psychological                   
testing, which is the type of training that would have to be met               
prior to anyone being allowed to use the nonlethal weapons and be              
covered by this legislation.  If a police officer used the                     
nonlethal weapon and was not properly trained they would be liable             
and this legislation would not be in effect.                                   
                                                                               
Number 0104                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ commented that he has worked with a             
number of police officers and correctional officers and in response            
to Representative Ryan's comments, he would venture to say that                
their degree of trustworthiness is "higher than in this body."  He             
said in his way of thinking, this bill is simple; it just defines              
nonlethal firearms.  He said, "These ballistics that you show in               
here clearly are not designed for lethal purposes.  But like                   
anything they can be used in a lethal fashion and there's no                   
exemption under this statute when these are used in a lethal                   
fashion.  And there's no immunization.  Part of this, it seems to              
me this is a straight-forward definitional bill."                              
                                                                               
CHAIR JAMES noted for the record that Representatives Ivan is                  
present.                                                                       
                                                                               
Number 0113                                                                    
                                                                               
REPRESENTATIVE MARK HODGINS agreed with Representative Berkowitz on            
the nonlethal firearm definition, however, he would like a                     
definition of "defensive weapon."  He indicated he would like to               
know if a "357" is a defensive weapon, as well as stun guns and                
pepper sprays.  He said there are numerous weapons that might be               
used that would fit under the definition of defensive weapon.                  
                                                                               
MR. JOHNSON responded that this was designed primarily for prison              
guards who may be in a riot situation.  Regarding the different                
types of weapons that fall under the definition of defensive                   
weapon, he indicated that the way that the statute reads currently             
is "any projectile fired from a weapon capable of firing a lethal              
projectile is considered a lethal projectile" even though they were            
not designed to do so.  He is not certain that there is a                      
projectile designed for a 357 that's designed not to be lethal.                
The statutes cover pepper spray and the other types of net guns                
that are fired out of a special weapon.  This bill is designed to              
address that very narrow definition of what a lethal projectile is.            
If a person fired a 357 in a defense mode, that's not what this                
bill is designed to do.                                                        
                                                                               
REPRESENTATIVE BERKOWITZ said it seems the concerns that Mr.                   
Johnson raised are addressed in a nonlethal definition.  He                    
indicated the definition of nonlethal as it is used in the statute             
is the projectile and that defines what type of firearm is being               
used.  He said "defensive weapon" has no meaning and it's vague and            
he thinks the intent of this bill is covered by using the nonlethal            
firearm definition.                                                            
                                                                               
Number 0138                                                                    
                                                                               
REPRESENTATIVE RYAN said he has a question about the physical                  
properties.  He gave an example using a 12-gauge shotgun and asked             
what is the range on the shotgun before a shot delivers "X" amount             
of force and a shot that could concentrate that force and cause                
some serious harm and/or penetration.                                          
                                                                               
MR. JOHNSON explained that the design of bag is such that when it              
hits on a corner, the lead shot expands.  It is designed to                    
distribute the weight evenly, less so if it hits flat.  He                     
indicated that's where the "proper training" and "under direction"             
comes in.  He said he would be remiss to say that people have not              
been injured by this.  When a police officer has to make a decision            
whether or not to fire a projectile, it is a very unique situation             
similar to the suicide situation addressed earlier, but not to the             
level of a police officer taking their revolver out and firing it,             
but at a level below that.  He said the police view it as a long               
baton.  If you hit someone in the head with a baton, you can do                
serious damage, but if a person is properly trained and needs to               
subdue a suspect and if it's used properly, it's a very effective              
tool.  Mr. Johnson referred to the suicide case and said the way               
the law is currently written, the officer that fired the projectile            
was equivalent to an officer pulling out his 38 mm and shooting the            
woman in the arm.  He said that situation would be totally frowned             
upon and the officer would be in a lot of trouble, but by statute              
it's the same because he fired a lethal projectile.  He noted that             
it is the belief of the sponsor that a person acting under                     
training, under the rules of engagement of the Department of                   
Corrections, should not be held accountable as if they pulled out              
their 38 revolver out and shot someone.  He indicated that the                 
purpose of the statute is only for projectiles fired from weapons              
capable of firing a lethal projectile.  It's a fairly narrow                   
definition of what this does.  It doesn't take in the new                      
technologies of the nets and the phone and the pepper sprays, but              
those are not designed to be fired from weapons capable of firing              
lethal projectiles.                                                            
                                                                               
CHAIR JAMES said, "The feelings I have on this bill is that I think            
that it has gone through other committees and come out this way.               
I'm a little uncomfortable with the defensive weapons that you say             
that it's the load that makes the determination, not the physical-             
ness of the weapon.  This does have a Judiciary referral, which I              
feel real comfortable with [Representative] Brian Porter on that               
and his police experience.  I guess without anyone giving me any               
real ways that we need to amend this bill, I would be comfortable              
sending it on to Judiciary where it will get another review."                  
                                                                               
Number 0180                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to delete "(1)" and ", or               
(2) defensive weapon" on page 1, line 8, to so it would read:                  
"...use includes the use of a nonlethal firearm."  Also, on page 1,            
line 9, to delete "or a defensive weapon" so it would read "...a               
nonlethal firearm does not amount to the use of deadly force...."              
                                                                               
CHAIR JAMES asked whether there was any objection.                             
                                                                               
REPRESENTATIVE RYAN asked Mr. Johnson if the sponsor would be                  
comfortable with the amendments made by Representative Berkowitz.              
                                                                               
MR. JOHNSON said any time there's a change to someone's bill,                  
there's a certain level of uncomfortableness.  He indicated that               
the bill was drafted with the assistance of the Anchorage Police               
Officers Association and their attorneys, and it is based on a bill            
that was drafted out of Iowa and they basically had the same                   
problem.  He said, "This bill has been thought out by people who               
know more about this than I and probably more than the sponsor                 
does."  He noted that it was done at the request of the Anchorage              
Police Department with a lot of input.  He said until he can                   
communicate with the sponsor, attorneys, and other people that had             
input, the sponsor might want to have the opportunity to review the            
amendment by Representative Berkowitz before it is enacted.                    
                                                                               
Number 0205                                                                    
                                                                               
CHAIR JAMES said the definition of "defensive weapons" is broad.               
She indicated that she doesn't expect legislators/staffers to                  
submit legislation to the committee without the possibility of it              
being amended, and she feels a little uncomfortable that Mr.                   
Johnson is not able to respond to the amendment.  However, if the              
committee passes the amendment and the bill moves to the Judiciary             
Committee, she would suggest - if the amendment is not a good                  
amendment and if Mr. Johnson has a good argument that it should not            
be changed - that the sponsor has a right to bring that up when                
they present the bill to the Judiciary Committee.  She indicated if            
this was the last committee of referral she would like to hold the             
bill and check with the sponsor, but since it is not, she would                
rather not hold the bill.                                                      
                                                                               
MR. JOHNSON reiterated that he still has a certain level of                    
uncomfortableness.                                                             
                                                                               
CHAIR JAMES said she understands that Mr. Johnson can't tell about             
another person's comfort level.                                                
                                                                               
Number 0216                                                                    
                                                                               
REPRESENTATIVE HODGINS said he wanted more information on the                  
mechanics of the bill.  He said if the committee changes the bill              
and then it's changed back to it's present form in the next                    
committee because of an argument, he asked, "Does that mean that               
that is a [committee substitute] CS and it has to go back through              
the Senate side?"                                                              
                                                                               
CHAIR JAMES advised that two things can happen:  they could amend              
the bill in committee today and it can go to the Judiciary                     
Committee and Judiciary can take the original bill and not the                 
amended one.  She explained that Judiciary cannot take their CS,               
but they can take the one that State Affairs passes out, and/or if             
they wanted to, they can do a different CS.  She indicated that                
anytime there is a change to a bill on one side or the other, the              
bill has to go back for concurrence.  She remarked that intense                
scrutiny of a legislation is certainly warranted.                              
                                                                               
Number 0227                                                                    
                                                                               
CHAIR JAMES again asked if there was an objection to the motion                
made by Representative Berkowitz.  There being no objection, it was            
so ordered.                                                                    
                                                                               
Number 0229                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to move HCSSB 309 as amended            
out of committee with individual recommendations and attached zero             
fiscal notes.  There being no objection, HCSSB 309(STA) moved out              
of the House State Affairs Standing Committee.