Legislature(2023 - 2024)BUTROVICH 205
05/10/2023 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB61 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 61 | TELECONFERENCED | |
HB 61-LIMITATIONS ON FIREARMS RESTRICTIONS
[CSHB 61(STA) was before the committee.]
1:51:46 PM
CHAIR CLAMAN announced the consideration of CS FOR HOUSE BILL
NO. 61(STA) "An Act relating to restrictions on firearms and
other weapons."
He noted that this was the first hearing.
1:52:22 PM
STEVE ST. CLAIR, Staff, Representative Cathy Tilton, Alaska
State Legislature, Juneau, Alaska introduced HB 61 paraphrasing
the sponsor statement.
HB 61 is a response to situations that have occurred
throughout the country during the COVID 19 pandemic.
In at least five states including Alaska, and the
Municipality of Anchorage, firearms retailers were
arbitrarily closed by governors and mayors. When it
comes to firearms Alaska is different compared to most
other states. Firearm use for protection and
subsistence predates Alaska's statehood and the
application of the Second Amendment.
HB 61 reaffirms Alaskans' right to survive and protect
themselves, along with their rights granted to them
through the Second Amendment. HB 61 stipulates that
the state, municipalities, and other instrumentalities
of the state may not implement new restrictions to
access firearms, firearm parts, ammunition, firearms
accessories, or shooting ranges resulting from
disaster declarations. Furthermore, HB 61 also
provides a civil remedy to Alaskans, should any of
those entities adopt statutes, ordinances, or policies
in violation of the provisions of this bill.
Nothing in HB 61 limits the state, municipalities, and
other instrumentalities from regulating firearms or
their use within previously established constitutional
and statutory boundaries.
1:53:00 PM
SENATOR KIEHL joined the meeting.
1:54:09 PM
MR. ST. CLAIR presented the sectional analysis for HB 61.
Section 1 Prohibits the State, municipalities, and
other instrumentalities from restricting the following
under a disaster declaration:
1. Possession, use or transfer of a firearm, firearm
parts, firearm accessory, or ammunition;
2. Ordering the seizure of the above-referenced
items;
3. Limiting the quantity or other restrictions on
the sales and services of those items;
4. Closing or limiting the hours of operation for
retail establishments that sell and service those
items unless the closure or limitation applies to
all other forms of commerce within the
jurisdiction;
5. Closing or limiting the hours of operation for
shooting ranges;
6. Suspending or revoking a concealed carry permit
outside of current statutory provisions;
7. Refusing to accept an application for a concealed
carry permit;
8. Provides for civil action as relief for a
violation of the above-referenced prohibitions;
9. Provides definitions for "firearm", firearm
parts, and "firearm accessory";
Section 2 Repeals a previous definition of "firearm
accessory" found under the Alaska Firearms Freedom
Act.
1:56:10 PM
CHAIR CLAMAN asked if he intended to present the PowerPoint.
MR. ST. CLAIR replied that it was up to the committee.
1:56:35 PM
SENATOR TOBIN highlighted the flags that were flying at half-
mast for all of the shooting victims in Texas. She asked how
Section 1 would interact with art. X, sec. 1 of the Constitution
of the State of Alaska that talks about local government being
able to maximize local control. It reads:
The purpose of this article is to provide for maximum
local self-government with a minimum of local
government units, and to prevent duplication of tax-
levying jurisdictions. A liberal construction shall be
given to the powers of local government units.
1:57:26 PM
MR. ST. CLAIR responded that it conflicts with the Second
Amendment of the US Constitution, but he didn't have a legal
opinion on which would supersede.
CHAIR CLAMAN asked him to proceed.
1:57:42 PM
MR. ST. CLAIR reviewed the summary of changes from version A to
version B of HB 61.
The changes between Version A and B are the insertion
of Firearm Parts within the body of the bill and
adding the definition of Firearm Parts.
1:58:17 PM
MR. ST. CLAIR offered the PowerPoint presentation, "HB 61, An
Act Relating to the Restriction of Firearms and other Weapons."
Original grammar and punctuation provided.
1:58:53 PM
MR. ST. CLAIR discussed slide 2, "HB 61 is critical to the
Alaskan way of life."
• Subsistence
• Protection
• Constitution
MR. ST. CLAIR moved to slide 2, "Firearm restrictions impact on
subsistence."
• Subsistence" is the word used to describe a
traditional way of life among many Alaska natives.
In the physical sense, it refers to the practice of
relying on the surrounding environment as a source
of food and materials for daily living.
• 21% of Alaska's population is considered rural.
• Alaska rural residence harvest about 18,000 tons of
wild foods per year.
• In rural Alaska 30% of a community provides 70% of
the community's food.
• The largest annual per capita harvest of wild food
resources comes from rural Arctic communities. In
2017, they harvested roughly 402 pounds per person
compared to the average of 15 pounds per person
harvested by Anchorage residents.
• Nowhere else in the U.S. is there such a heavy
reliance on wild foods.
2:00:01 PM
CHAIR CLAMAN asked what percentage of Alaskan homes have one or
more firearms.
MR. ST. CLAIR said he didn't have that information.
CHAIR CLAMAN asked if he thought it was in the 80 percent and
higher range.
2:00:24 PM
Brief at ease due to technical difficulties.
2:00:34 PM
MR. ST. CLAIR said he didn't have any data but he assumes that
more than 80 percent of Alaskan homes have one or more firearms.
CHAIR CLAMAN shared that when he goes door to door campaigning,
he assumes that every house has a gun.
2:01:00 PM
MR. ST. CLAIR paraphrased slide 4, "Firearm restrictions impact
on protection."
• This year a woman and her 1 year old son were mauled
to death by polar bear in Wales, the polar bear was
killed by a man with a gun, potentially saving
lives.
• In 2017, a contract employee for Pogo Mine, was
killed by a black bear, while collecting soil
samples. The bear was killed by a mine employee with
a gun.
• Criminals do not follow laws which make victims more
vulnerable.
2:01:55 PM
MR. ST. CLAIR paraphrased slide 5, "Firearm restrictions and the
constitution."
• In January 2022 a federal appeals court ruled that
two California counties that shut down gun stores as
nonessential businesses in 2020 due to the
coronavirus pandemic, violated the Constitution's
Second Amendment.
• The Second Amendment to the U.S. Constitution
guarantees "the right of the people to keep and bear
arms." In 2008, the U.S. Supreme Court ruled in
District of Columbia v. Heller that this is an
individual right, not requiring participation in a
militia.
• In 2010, the high court ruled in McDonald v. Chicago
that the right to keep and bear arms is a
fundamental right that also applies to the states
through the Fourteenth Amendment, which bars any
state from denying liberty to any person without due
process of law.
2:03:01 PM
CHAIR CLAMAN asked if he would agree that the Ninth Circuit
Court of Appeals would use the same framework for an analysis in
Alaska as it did in the California case he referenced.
MR. ST. CLAIR answered in the affirmative.
2:03:29 PM
MR. ST. CLAIR continued to slide 6, "Nationwide action on
firearm restrictions."
• Four State adopted similar legislation in 2021.
• South Dakota (SB 129)
• Georgia (SB 214)
• West Virginia (SB 458)
• North Dakota (SB 2344)
• Department of Homeland Security published a memo
included Firearm dealers as mission essential.
2:04:00 PM
MR. ST. CLAIR reviewed slide 7, "Conclusion."
• Firearms, firearm accessories, and ammunition are a
part of the Alaskan culture and way of life.
• Firearms facilitate feeding families and food
security.
• Firearms allow Alaskan's and visitors to safely
explore our beautiful state.
• The Second Amendment grants citizens the right to bear
arms.
• Bi Partisan support (SB 136 / HB 179, 2022)
2:04:39 PM
CHAIR CLAMAN referenced the language in Section 1, paragraph (4)
that says a gun shop may be closed only if all shops are closed.
He observed that in an extreme emergency, essentials to life
such as access to food, water, and medical care could reasonably
be treated differently. He asked why the bill assigns access to
food on the same level of importance as access to firearms.
MR. ST. CLAIR responded that firearms allow individuals to
access food that doesn't come from a store or shelter.
CHAIR CLAMAN posited that Alaskans who are going to access food
in an emergency situation most likely already have at least one
firearm and ammunition. He said the suggestion that somebody
needs access to firearms for subsistence hunting in an emergency
places the same priority on guns as a grocery store or a
pharmacy.
2:07:24 PM
MR. ST. CLAIR responded that even if everybody had a gun in an
emergency they wouldn't necessarily have a stockpile of
ammunition and if the weapon was damaged, it couldn't be
replaced.
CHAIR CLAMAN opined that Mr. St. Clair really had not made the
case for why firearms have the same standing as a grocery store
or pharmacy.
MR. ST. CLAIR responded, "Equity in commerce."
2:08:17 PM
SENATOR TOBIN followed up on the Chair's questioning. She noted
that the Sullivan Arena was designated a gun-free campus when it
was being used as an emergency shelter during Covid. She relayed
her fear was that if this provision were to pass, a significant
increase in the number of guns potentially would flood the
Fairview neighborhood. She questioned why the legislature would
want to suspend the right for the Municipality of Anchorage to
exercise local control considering that the designation was put
in place to protect kids and families. She asked why protecting
citizens in an urban area shouldn't be part of the dialog.
MR. ST. CLAIR cited 42 U.S. Code Sec. 5207(a)(3).
3) prohibit possession of any firearm, or promulgate
any rule, regulation, or order prohibiting possession
of any firearm, in any place or by any person where
such possession is not otherwise prohibited by
Federal, State, or local law; or
2:11:08 PM
SENATOR TOBIN said there is nothing prohibiting somebody from
carrying a gun at the Sullivan Arena right now, but it was made
a gun-free campus during the pandemic. She asked why the
legislature would want to take the right to do that away from
the municipality.
MR. ST. CLAIR stated that this legislation does not take away
that right; federal law took away that right.
2:11:43 PM
CHAIR CLAMAN offered his understanding of the legislation.
Today, the Anchorage Assembly and the mayor could pass an
ordinance prohibiting firearms in the Sullivan Arena based on
the fact that it's a shelter that houses people with recognized
mental illness. If an emergency were declared a month later, the
restriction on firearms prior to the emergency would be legal,
but if the assembly and mayor tried to pass such an ordinance
after the emergency was declared, HB 61 would prohibit them from
doing so. Senator Tobin's question was why the legislature
should restrict the municipality in the specific instance of the
Sullivan Arena from making it a gun free. He, too, asked why the
legislature shouldn't allow the municipality to exercise local
control and pass such an ordinance.
2:13:09 PM
MR. ST. CLAIR responded that it's in federal law.
CHAIR CLAMAN asked what the federal law says.
MR. ST. CLAIR cited 42 U.S. Code Sec. 5207(a)(3) that reads:
3) prohibit possession of any firearm, or promulgate
any rule, regulation, or order prohibiting possession
of any firearm, in any place or by any person where
such possession is not otherwise prohibited by
Federal, State, or local law; or
2:14:00 PM
SENATOR TOBIN referenced Centennial Park which currently is open
for homeless people to camp. It is not a gun-free campus now but
was declared a gun-free campus during the pandemic when it was
designated an emergency space for people who were homeless. She
requested a legal opinion so the committee could understand how
this legislation would affect the municipality's ability to make
autonomous decisions to protect its residents.
MR. ST. CLAIR agreed to try to fulfill the request.
2:14:46 PM
CHAIR CLAMAN referenced the provisions in paragraphs (1) and (2)
in subsection (c) on page 2, lines 13-19 which specify who
should have standing to bring lawsuits. He said his
understanding was that the Alaska Supreme Court has one of the
most liberal standing provisions in existing statutes and common
law that allows a range of people to bring lawsuits. He asked
why paragraphs (1) and (2) were needed when existing law already
allows a range of people to bring a civil action.
2:15:34 PM
MR. ST. CLAIR responded that the language came from previous
legislation on this topic.
CHAIR CLAMAN stated that his question was whether these
provisions were needed when the Alaska Supreme Court decisions
on standing were already so broad; they were much more liberal
than those applied by the US Supreme Court and federal courts.
MR. ST. CLAIR offered to follow up with a response.
2:16:11 PM
SENATOR TOBIN referred to the provision in subsection (d)(1) on
page 2, line 22, that provides punitive damages in the amount of
three times the plaintiff's attorney fees. She asked for the
derivation of that number.
MR. ST. CLAIR replied that language was lifted from similar
legislation; it gives teeth to violating the Second Amendment.
SENATOR TOBIN asked why the legislature would tell the court
what to do in terms of setting damages in favor of the
plaintiffs.
2:16:55 PM
MR. ST. CLAIR referred to the legal memo in the bill packets
that talks about the use of treble and injunctive damages. The
basis is legislation passed in other states. He recalled that
treble damages is used 14 times in Alaska Statute.
CHAIR CLAMAN asked if any of the states he referenced allow
treble damages against a government entity as opposed to a
private entity.
MR. ST. CLAIR surmised that the answer was "No" because the
Second Amendment only applies to interference by the government,
not a private entity.
CHAIR CLAMAN asked if he was saying that treble damages were
only assessed against government entities.
MR. ST. CLAIR responded that he'd need to look at the pieces of
legislation to verify his answer. He had looked at North Dakota
statutes.
CHAIR CLAMAN said he looked at the North Dakota statutes and he
didn't see any treble damage provisions.
2:19:09 PM
MR. ST. CLAIR offered to get back to the committee.
CHAIR CLAMAN asked him to provide information about whether any
of the four states had adopted provisions about treble damages.
CHAIR CLAMAN restated that provisions in Alaska Statute provide
treble damages for private entities. If this bill were to pass
as currently drafted, it would be the first time the government
would be subject to treble damages. He suggested that this would
be a bold move and potentially problematic. He also asked
whether the sponsor had looked into how the treble damages
provision relates to sovereign immunity, and whether the state
would be waiving its sovereign immunity by passing this
legislation.
MR. ST. CLAIR referred to another legal document in the bill
packets that talks about qualified immunity.
CHAIR CLAMAN asked whether mayors could claim qualified immunity
if they were sued for treble damages by a gun-rights
organization.
MR. ST. CLAIR asked if he was talking about suing the mayor or
the city.
CHAIR CLAMAN answered both.
MR. ST. CLAIR responded that the city doesn't have qualified
immunity whereas the mayor would have qualified immunity.
CHAIR CLAMAN pointed out that the city was the sovereign so it
should be able to assert its sovereign immunity and say it was
not subject to damages.
MR. ST. CLAIR said he would have to follow up with a response.
2:21:45 PM
At ease
2:32:19 PM
CHAIR CLAMAN reconvened the meeting and noted that he was asking
questions about sovereign immunity.
MR. ST. CLAIR referenced point 3 in the legal memo that quotes
Mullenix v. Luna, 577 U.S. &, 11 (2015). It says:
The doctrine of qualified immunity shields officials
from civil liability so long as their conduct does not
violate clearly established constitutional rights of
which a reasonable person would have known.
CHAIR CLAMAN observed that if this law were to pass and the
mayor signs an executive order prohibiting guns in the Sullivan
Arena, the mayor would be personally liable for signing an
executive order that violates well-known constitutional rights.
MR. ST. CLAIR responded, "Potentially."
CHAIR CLAMAN asked if passing this law would cause the
Municipality of Anchorage to waives its sovereign immunity.
MR. ST. CLAIR replied that he would need to get a legal opinion
before answering the question.
2:33:46 PM
MR. ST. CLAIR stated that he previously used the term "treble
damages" incorrectly. He referenced item 2 in the legal
memo he mentioned previously. It says:
While the punitive damages are in the amount of three
times the plaintiff's attorney fees, these damages are
not what is typically referred to in statute as
"treble damages."
He directed attention to page 2, line 23 and clarified that it's
three times the plaintiff's attorney fees, not three times the
actual damages.
CHAIR CLAMAN asked if there was any other instance in Alaska
statute that had provisions to allow tripling the attorney fees.
MR. ST. CLAIR responded that item 2 of the legal memo states
that triple damages are authorized in 14 different Alaska
statutes.
CHAIR CLAMAN asked if he was saying that those statutes have
specific provisions about tripling the attorney fees as opposed
to tripling the other damages the court awards that are
unrelated to attorney fees. He cautioned Mr. St. Clair that if
he didn't know the answer, he should say so.
MR. ST. CLAIR responded that he didn't know the answer.
CHAIR CLAMAN relayed his understanding that the challenge of
attorney fees is whether the plaintiff or the defendant is
entitled to actual attorney fees. He added that he was not aware
of any instance in Alaska statute where tripling attorney fees
is allowed, but there are instances where tripling damages
unrelated to attorney fees is allowed. He asked Mr. St. Clair to
do some research provide justification for asking the
legislature to create an exception that allows damages that
treble attorney fees.
MR. ST. CLAIR replied he would follow up with the information.
He added that he found that legislation in the state of Georgia
lists liquidation damages of three times the plaintiff's
attorney fees.
2:37:18 PM
SENATOR KAUFMAN observed that item 2 of the legal memo says that
the damages in 14 different statutes are some combination of
attorney fees and other costs.
CHAIR CLAMAN said his question was based on the fact that the
calculation of damages generally is a separate analysis than
attorney fees.
SENATOR KAUFMAN said he was trying to make sure that the damages
weren't being conflated.
CHAIR CLAMAN said he appreciates that Senator Kaufman
highlighted that the triple damages under this proposal is only
on attorney fees.
2:39:21 PM
CHAIR CLAMAN held HB 61 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 61 version B 4.19.2023.PDF |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Sponsor Statement version B 5.9.2023.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Sectional Analysis version B 5.9.2023.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Summary of Changes version A to version B 5.9.2023.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Supporting Document - Second Amendment Foundation Press Release 10.24.2005.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Supporting Document - US Code 2009 Title 42 Chapter 68 Subchapter V Section 5207.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Supporting Document - Legislative Legal Memo 3.21.2023.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Supporting Testimony - Received as of 5.9.2023 9_11 AM.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Opposing Testimony - Received as of 5.8.2023 11_43 AM.pdf |
SJUD 5/10/2023 1:30:00 PM |
HB 61 |
| HB 61 Amend Testimony - Received as of 5.8.2023_Part1.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Amend Testimony - Received as of 5.8.2023_Part2.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Amend Testimony - Received as of 5.8.2023_Part3.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Amend Testimony - Received as of 5.8.2023_Part4.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 Amend Testimony - Received as of 5.8.2023_Part5.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |
| HB 61 PowerPoint Presentation 5.10.2023.pdf |
SJUD 5/10/2023 1:30:00 PM |
HB 61 |
| HB 61 Fiscal Note LAW-TORT 3.10.2023.pdf |
SJUD 5/10/2023 1:30:00 PM SJUD 5/14/2023 10:00:00 AM |
HB 61 |