Legislature(2017 - 2018)BELTZ 105 (TSBldg)

03/17/2017 01:30 PM Senate JUDICIARY

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01:35:25 PM Start
01:35:55 PM SB69
02:19:22 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled: TELECONFERENCED
Heard & Held
<Bill Held Over from 03/15/17>
Scheduled but Not Heard
<Bill Held Over from 03/15/17>
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 17, 2017                                                                                         
                           1:35 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator John Coghill, Chair                                                                                                     
Senator Mia Costello                                                                                                            
Senator Kevin Meyer                                                                                                             
Senator Pete Kelly                                                                                                              
Senator Bill Wielechowski                                                                                                       
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 69                                                                                                              
"An Act  relating to  misconduct involving  weapons in  the fifth                                                               
degree; and providing for an effective date."                                                                                   
     - HEARD & HELD                                                                                                             
SENATE BILL NO. 55                                                                                                              
"An  Act relating  to  criminal law  and  procedure; relating  to                                                               
controlled substances;  relating to  sentencing; relating  to the                                                               
period  of   probation;  relating  to   revocation,  termination,                                                               
suspension, cancellation,  or restoration of a  driver's license;                                                               
relating to parole;  relating to the duties of  the Department of                                                               
Corrections  and the  Department of  Health and  Social Services;                                                               
and providing for an effective date."                                                                                           
     - HEARD & HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB  69                                                                                                                  
SHORT TITLE: MISCONDUCT INVOLVING WEAPONS 5TH DEGREE                                                                            
SPONSOR(s): SENATOR(s) EGAN                                                                                                     
02/24/17       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/24/17       (S)       JUD, FIN                                                                                               
03/15/17       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/15/17       (S)       -- MEETING CANCELED --                                                                                 
03/17/17       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
WITNESS REGISTER                                                                                                              
SENATOR DENNIS EGAN                                                                                                             
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of SB 69.                                                                                        
JAMES DOOLEY, representing himself                                                                                              
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided supporting testimony for SB 69.                                                                 
QUINLAN STEINER, Public Defender                                                                                                
Public Defender Agency                                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Raised concerns with SB 69.                                                                              
MAJOR JEFFREY LAUGHLIN, Deputy Director                                                                                         
Alaska State Troopers                                                                                                           
Department of Public Safety (DPS)                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in support of SB 69.                                                                           
ACTION NARRATIVE                                                                                                              
1:35:25 PM                                                                                                                    
CHAIR  JOHN   COGHILL  called   the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:35  p.m. Present at the  call to                                                               
order  were Senators  Costello,  Wielechowski,  Meyer, Kelly  and                                                               
Chair Coghill.                                                                                                                  
         SB  69-MISCONDUCT INVOLVING WEAPONS 5TH DEGREE                                                                     
1:35:55 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of SB  69 and  noted                                                               
that this  is the first hearing.  The intent is to  introduce the                                                               
bill, take questions  and public testimony and hold  the bill for                                                               
further consideration.                                                                                                          
1:36:58 PM                                                                                                                    
SENATOR DENNIS EGAN, Alaska State  Legislature, sponsor of SB 69,                                                               
said  he  introduced  the  legislation  at  the  request  of  law                                                               
enforcement and as a matter  of officer safety. He explained that                                                               
current law provides that an  individual who has contact with the                                                               
police must  inform the  officer if they  are carrying  a firearm                                                               
concealed. However,  there is no  such obligation if  the firearm                                                               
is concealed in  an individual's vehicle and they  are stopped by                                                               
law enforcement.  The bill  extends the  language for  carrying a                                                               
concealed  firearm in  a shoulder  holster to  include a  firearm                                                               
concealed  in  a  vehicle.  He noted  that  the  packets  contain                                                               
information on how dangerous traffic  stops can be for police and                                                               
SENATOR EGAN  emphasized that  the bill does  not change  who can                                                               
exercise their constitutional  right to carry a  firearm, or when                                                               
or where they can exercise that  right. "It just lets police know                                                               
when  a  firearm is  part  of  the  equation,  so they  can  keep                                                               
themselves safe."                                                                                                               
1:39:11 PM                                                                                                                    
CHAIR COGHILL opened public testimony.                                                                                          
1:41:01 PM                                                                                                                    
JAMES DOOLEY, representing himself,  Juneau, Alaska, reviewed his                                                               
career  in the  U.S. Coast  Guard  as a  federal law  enforcement                                                               
officer, his service  with the Juneau Police  Department, and his                                                               
education  that includes  a master's  degree in  criminal justice                                                               
and  an  advanced  police  certificate  from  the  Alaska  Police                                                               
Standards Council.  He shared  that he likes  to hunt  and shoots                                                               
recreationally and  is in no  way anti-gun, but he  is testifying                                                               
today to  talk about  a personal experience  where a  firearm was                                                               
suddenly introduced.                                                                                                            
He  recounted  that the  situation  occurred  inside a  residence                                                               
where he  and another officer  went on  a welfare check.  The man                                                               
they  were checking  on  was  reported to  be  drunk, high,  have                                                               
access to a  firearm, and had threatened suicide.  He invited the                                                               
officers inside and proceeded to pull  a gun from behind his back                                                               
and  wave it  in the  direction of  both officers.  Both officers                                                               
pulled their guns  but were able to secure  the situation without                                                               
injury to anyone.  He said this is not the  only incident where a                                                               
firearm has come out without  warning. He offered his belief that                                                               
it  makes for  a much  safer  interaction for  both officers  and                                                               
citizens if disclosure is a matter  of routine and the element of                                                               
surprise is eliminated.                                                                                                         
1:44:46 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if an  officer can  lawfully ask  if                                                               
there is a gun  in the vehicle, and is there  a punishment if the                                                               
person is found to have lied.                                                                                                   
MR. DOOLEY  replied it isn't  a rote  part of every  traffic stop                                                               
but prudent  officers probably  would ask if  they had  reason to                                                               
believe there was a gun that wasn't disclosed.                                                                                  
CHAIR COGHILL  talked about attending trooper  training exercises                                                               
about when  to shoot  and when  not to shoot.  There was  a video                                                               
series of different encounters where  there was a split second to                                                               
decide  whether  deadly  force  is warranted.  He  spoke  of  the                                                               
importance of striking a balance  between personal safety and the                                                               
power of the state.                                                                                                             
He  asked   Officer  Dooley  his  perspective   on  how  Alaska's                                                               
concealed carry law is working.                                                                                                 
MR.  DOOLEY  said there  is  some  lack  of awareness  about  the                                                               
prudence  of  disclosing  a firearm  anytime  an  individual  has                                                               
contact with  law enforcement.  There are  also many  prudent gun                                                               
owners that disclose, and it adds no adrenalin to the contact.                                                                  
1:50:54 PM                                                                                                                    
SENATOR COSTELLO asked how the  bill would change his behavior on                                                               
a routine stop if he determined  the driver was lying about being                                                               
in possession of a firearm.                                                                                                     
MR. DOOLEY  said the  bill would not  change an  officer's search                                                               
CHAIR  COGHILL  said the  committee  will  consider an  officer's                                                               
right  to be  safe while  enforcing the  law and  an individual's                                                               
right  to  live peaceably  without  undue  interference from  the                                                               
1:53:03 PM                                                                                                                    
SENATOR COSTELLO asked how this  bill would affect a traffic stop                                                               
where a passenger with a  concealed carry permit doesn't disclose                                                               
and the driver is unaware there is a gun in the vehicle.                                                                        
CHAIR  COGHILL redirected  the question  and asked  what officers                                                               
are  currently  instructed to  do  when  both  the driver  and  a                                                               
passenger have a concealed carry permit.                                                                                        
MR. DOOLEY clarified that Alaska  law treats concealed carry with                                                               
and  without a  permit the  same. Both  the driver  and passenger                                                               
would be obliged  to disclose if they have a  gun on their person                                                               
and  they have  contact with  law enforcement;  the bill  doesn't                                                               
change that.  He demonstrated what  he does as a  private citizen                                                               
when he is contacted by law enforcement.                                                                                        
CHAIR COGHILL thanked Officer Dooley  for taking personal time to                                                               
1:56:11 PM                                                                                                                    
QUINLAN STEINER,  Public Defender,  Public Defender  Agency, said                                                               
the primary  concern with SB  69 relates to  a lack of  notice to                                                               
the  public   that  an  affirmative  duty   exists.  That  raises                                                               
practical as well as constitutional concerns.                                                                                   
The  constitutional concern  relates to  the lack  of notice.  He                                                               
explained    that    the   constitution    generally    prohibits                                                               
criminalizing a  duty to  act when there  hasn't been  notice. In                                                               
this case there is essentially no  notice to the public that this                                                               
duty exists.  He mentioned  the concealed  carry permit  law, its                                                               
requirements and affirmative  duties and the fact  that it raised                                                               
a  constitutional   question  that   hasn't  been   litigated  or                                                               
addressed by the appellate courts in the state.                                                                                 
MR. STEINER said the bill  also raises a Fifth Amendment question                                                               
if  someone is  required  to make  a disclosure  that  in and  of                                                               
itself might  be an admission of  a crime. He said  that question                                                               
exists with the current statute  and isn't raised specifically by                                                               
this  amendment, but  it exists.  He said  the practical  concern                                                               
related  to this  notice is  that  the public  doesn't know,  and                                                               
otherwise law-abiding  citizens may  unknowingly commit  a crime.                                                               
That won't  effectuate the  policy that's at  issue, which  is to                                                               
have the  existence of a weapon  made known to ensure  the safety                                                               
of the situation.                                                                                                               
He  suggested potential  fixes: require  the officer  to ask  the                                                               
person if  they have a weapon  in the vehicle and  notify them of                                                               
their  obligation  to  disclose;   write  such  obligations  into                                                               
drivers' licenses;  and make it  a violation not to  disclose. He                                                               
noted that the prohibition on  requiring affirmative action isn't                                                               
implicated in a violation; it's implicated in criminal statutes.                                                                
1:59:38 PM                                                                                                                    
CHAIR COGHILL asked  if an officer who comes to  the door without                                                               
a  warrant has  the  right  to ask  an  individual  if there  are                                                               
firearms in the house.                                                                                                          
MR. STEINER  said there  is no prohibition  about asking  and the                                                               
individual  is free  to  answer  as they  see  fit. However,  the                                                               
requirement in existing statute  regarding weapons on your person                                                               
raises the issue about criminal  liability for failure to respond                                                               
CHAIR COGHILL clarified that the  bill is restricted to concealed                                                               
carry in a vehicle.                                                                                                             
MR. STEINER agreed and added  that the proposed amendment mirrors                                                               
existing  statute regarding  concealed on  your person.  He noted                                                               
that the concealed weapons permit  law that was repealed required                                                               
disclosure  when interacting  with  a police  officer. That  left                                                               
open  the   question  about  whether   the  current   statute  is                                                               
CHAIR COGHILL  asked if  the Fifth  Amendment right  he mentioned                                                               
was the right not to incriminate oneself.                                                                                       
MR. STEINER  answered yes.  If a person  is required  to disclose                                                               
and they are  intoxicated they would essentially  be admitting to                                                               
a crime. He  cited another example of a youth  in possession of a                                                               
concealed weapon.  The individuals would  be able to  contest the                                                               
charge and investigation based on Fifth Amendment grounds.                                                                      
2:02:48 PM                                                                                                                    
CHAIR  COGHILL asked  about  the  right of  a  police officer  to                                                               
defend him/herself when they ask someone if they have a weapon.                                                                 
MR. STEINER  replied the policy  at issue makes sense  because it                                                               
promotes public safety. Letting  people know they're obligated to                                                               
answer the  question and allow  the officer to secure  the weapon                                                               
would promote that policy.                                                                                                      
SENATOR  COSTELLO asked  for examples  of misconduct  involving a                                                               
weapon in the fifth degree.                                                                                                     
MR. STEINER cited  the following examples of  class B misdemeanor                                                               
misconduct:  failure  upon initial  contact  to  inform a  police                                                               
officer  you  are carrying  a  deadly  weapon concealed  on  your                                                               
person;  concealing a  weapon on  your  person within  somebody's                                                               
residence without  their express permission; possessing  a loaded                                                               
firearm in  any place where  intoxicating liquor is sold;  and an                                                               
un-emancipated minor  under age  16 carrying a  concealed firearm                                                               
on their person.                                                                                                                
2:05:38 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if there  is an  existing prohibition                                                               
against a police  officer asking about the presence  of a firearm                                                               
during a traffic stop.                                                                                                          
MR. STEINER replied he's not  aware of a prohibition and believes                                                               
it happens frequently.                                                                                                          
SENATOR WIELECHOWSKI  asked if  lying to  a police  officer about                                                               
having a firearm under the car seat carries a penalty.                                                                          
MR. STEINER offered to follow up after doing some research.                                                                     
SENATOR  WIELECHOWSKI  asked  if  he  has  any  Fourth  Amendment                                                               
concerns  with the  provision  that allows  a  police officer  to                                                               
secure a firearm.                                                                                                               
MR.  STEINER said  he intends  to look  at that  further, but  it                                                               
potentially presents  issues if  in the  process of  securing the                                                               
weapon  the officer  sees  contraband that  may  cause a  further                                                               
SENATOR  WIELECHOWSKI asked:  1)  if the  interior  of a  vehicle                                                               
would include the  trunk; and 2) if the obligation  to disclose a                                                               
weapon in a vehicle extends to a passenger.                                                                                     
MR. STEINER  said he  doesn't believe the  interior of  a vehicle                                                               
would  include  the trunk,  just  what  is reachable  within  the                                                               
vehicle.  The  duty  to  disclose   arguably  would  apply  to  a                                                               
passenger, but it's unclear in the statute.                                                                                     
SENATOR  WIELECHOWSKI  said he  assumes  it  would be  a  knowing                                                               
MR. STEINER  confirmed the statute  requires a knowing  mens rea.                                                               
Honest forgetfulness would probably  qualify as knowingly, but it                                                               
could be used as a defense.                                                                                                     
SENATOR  WIELECHOWSKI asked  if  the  court defines  "immediately                                                               
inform the peace officer" as a reasonable standard.                                                                             
MR. STEINER  said he  believes it's  a reasonable  standard under                                                               
the circumstances. It's not a specific timeframe.                                                                               
SENATOR  WIELECHOWSKI  asked  how  a court  might  interpret  the                                                               
MR. STEINER  opined that  it would be  that notification  about a                                                               
weapon in the car would be one  of the first things you did after                                                               
being contacted.  Notifying an officer  after he/she  returned to                                                               
their vehicle and  then came back would likely be  a violation of                                                               
the statute.                                                                                                                    
CHAIR COGHILL said his interpretation is first contact.                                                                         
2:12:33 PM                                                                                                                    
MAJOR  JEFF LAUGHLIN,  Deputy  Director,  Alaska State  Troopers,                                                               
Department  of  Public  Safety   (DPS),  introduced  himself  and                                                               
offered to answer questions.                                                                                                    
CHAIR COGHILL asked  what the procedure is under  existing law if                                                               
there is  more than  one person  in the vehicle  and one  of them                                                               
fails to disclose.                                                                                                              
MR.  LAUGHLIN  responded  that  the  troopers  support  the  bill                                                               
because under  existing law there is  not a duty to  disclose the                                                               
presence of a firearm in a  vehicle unless it is concealed on the                                                               
driver's person or the passenger's person.                                                                                      
CHAIR  COGHILL asked  if it  would be  clarifying to  stipulate a                                                               
firearm in  a vehicle that is  within reach as opposed  to within                                                               
the interior of a vehicle.                                                                                                      
MR. LAUGHLIN  said it could  be helpful  to the bill.  He advised                                                               
that in other areas of the  law the terminology generally used by                                                               
law enforcement  is "within  lunge, reach,  or grasp."  He agreed                                                               
with earlier  testimony that the current  language wouldn't apply                                                               
to the trunk.                                                                                                                   
CHAIR COGHILL asked if the current  protocol is to ask on initial                                                               
contact if there is a firearm in the vehicle or on the person.                                                                  
MR.  LAUGHLIN said  that as  a general  rule he  won't ask  about                                                               
firearms  or  anything  else  in   a  vehicle  unless  he  has  a                                                               
reasonable suspicion that something is going on.                                                                                
2:18:06 PM                                                                                                                    
CHAIR COGHILL held  SB 69 in committee  for further consideration                                                               
with public testimony open.                                                                                                     
2:19:22 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Coghill adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 2:19 p.m.                                                                                                            

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