Legislature(2013 - 2014)HOUSE FINANCE 519
02/25/2013 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB24 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 24 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
February 25, 2013
2:03 p.m.
2:03:39 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 2:03 p.m.
MEMBERS PRESENT
Representative David Guttenberg
Representative Alan Austerman, Co-Chair
Representative Bill Stoltze, Co-Chair
Representative Mark Neuman, Vice-Chair
Representative Mia Costello
Representative Bryce Edgmon
Representative Les Gara
Representative Lindsey Holmes
Representative Cathy Munoz
Representative Steve Thompson
MEMBERS ABSENT
Representative David Guttenberg
Representative Scott Kawasaki, Alternate
Representative Tammie Wilson
ALSO PRESENT
Representative Mark Neuman, Sponsor; Lieutenant Rodney
Dial, Deputy Commander for a Detachment (Southeast), Alaska
State Troopers; Quinlan Steiner, Director, Public Defender
Agency, Department of Administration.
PRESENT VIA TELECONFERENCE
Joseph Masters, Commissioner, Department of Public Safety;
James Fayette, Attorney, Anchorage; Richard Svobodny,
Deputy Attorney General, Criminal Division, Department of
Law.
SUMMARY
HB 24 SELF DEFENSE
HB 24 was HEARD and HELD in committee for further
consideration.
HOUSE BILL NO. 24
"An Act relating to self-defense in any place where a
person has a right to be."
2:09:18 PM
REPRESENTATIVE MARK NEUMAN, SPONSOR, informed the committee
that the provision related to self-defense of someone else
was not included in HB 24 but was contained in an existing
statute, AS 11.81.340. He provided the information to the
committee (copy on file).
JOSEPH MASTERS, COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY
(via teleconference), commented on the legislation. He
remarked that the Alaska Association of the Chiefs of
Police had sent a communication informing the committee of
its position on the legislation. He offered that the
association's opinion did not represent the position of the
entire membership. The provisions in HB 24 were
controversial within the law enforcement community. He felt
that adequate safeguards existed in current law to disallow
false claims of self-defense. The Department of Public
Safety (DPS) was examining how changes in the law would
impact the potential for increased use of unjustifiable
deadly force or burden law enforcement officer's
investigations of self-defense. He thought that any impact
would be minimal. He indicated that similar arguments were
expressed in the early 2000's regarding conceal carry
permit changes. He relayed that according to a recent study
the rate of gun violence in the state declined over a 30
year period despite significant changes in handgun laws. He
guessed that passage of the bill would not affect the
downward trend in violent crime.
Co-Chair Stoltze asked for the department's position on the
legislation. Commissioner Masters replied that the
department was in support of HB 24 with some reservation.
Representative Munoz asked for Commissioner Master's
personal position on the bill. Commissioner Masters
responded that he was personally in favor of the bill.
LIEUTENANT RODNEY DIAL, DEPUTY COMMANDER FOR A DETACHMENT
(SOUTHEAST), ALASKA STATE TROOPERS, DEPARTMENT OF PUBLIC
SAFETY, voiced that the Alaska State Troopers were in
support of the legislation.
Co-Chair Stoltze asked how charges against someone claiming
self-defense originated. Lieutenant Dial answered that DPS
investigated use of force situations. The department in
conjunction with the Department of Law (DOL) and the
District Attorney's office arrived at either a charging
decision or a decision not to charge. The department
determined that passage of the legislation would not change
the process.
2:17:48 PM
Representative Gara asked for clarification about the
department's position on the bill. Commissioner Masters
replied that the department supported the bill and that he
personally was strongly in favor the legislation.
Representative Edgmon cited Page 2, line 3, of the bill,
"(5) in any other place where the person has a right to
be." He inquired about "where a person has a right to be."
He asked for clarification. He wondered whether there were
places a person should not have a gun and how the law would
work in those instances. Lieutenant Dial answered that
there were locations that individuals were "not supposed"
to have firearms. He noted that domestic violence shelters
and courthouses were examples.
Co-Chair Stoltze warned that subjectivity existed in the
terms, "shouldn't be" or "not supposed to be" He requested
terms that defined precise legal prohibitions, i.e.,
"prohibited from".
Lieutenant Dial continued that DOL and the District
Attorney's office decided whether the person who acted with
deadly force was legally in the right place. He offered
that trespassing was an example of a place a person did not
have a right to be.
Representative Edgmon believed that the phrase was
subjective. He wondered why the bill would not affect the
department's current procedures.
Lieutenant Dial reported that two murders took place in the
last six months. He reiterated that the department's
responsibility was to fully investigate the incidents and
report the facts to the districts attorney's office in
order to determine charging decisions, regardless of
current law. He supposed that some elements of the
legislation could affect the process for the Department of
Law.
Vice-Chair Neuman highlighted some of the discussion from
the Judiciary Committee. He reported that that if a person
was on private property the person did not have a legal
right to be there. Conversely, there were places where a
person did have a right to be i.e., state land.
Representative Munoz asked whether the provision "any other
place where the person has a right to be" weakened or
nullified the presumption to avoid the use of deadly force.
Lieutenant Dial believed that it did not weaken the
presumption.
Representative Gara cited AS 11.81.335 that justified the
use of deadly force and noted that it was not contained in
the bill.
AT EASE
2:25:46 PM
2:25:55 PM
RECONVENED
Representative Gara cited AS 11.81.335(b). He interpreted
the statute to mean that a person must retreat if one could
do so in complete safety. He asked whether the legislation
changed the statute and allowed the use of deadly force.
Lieutenant Dial answered that a person was not required to
retreat under the provisions in HB 24.
Representative Gara surmised that HB 24 extended a person's
right to use deadly force in a public place when they could
retreat without harming a person. Lieutenant Dial deferred
the question to DOL. He offered that the bill extended the
same rights to self-defense in public places as permitted
in a home.
Vice-Chair Neuman maintained that HB 24 did not mandate the
use of deadly force. The bill clarified that the rules of
self-defense in the home also applied to where a person
"had the legal right to be." The legislation added a clause
to existing Alaska law that did not require a duty to
retreat in certain instances. Currently under state law a
person was required to retreat [in public places]. The bill
extended specific "rights to defend yourself" in contrast
to having to retreat.
JAMES FAYETTE, ATTORNEY, ANCHORAGE (via teleconference),
shared that he worked as a prosecutor for DOL in Anchorage
but was testifying on his own behalf. He stressed that his
position on the legislation was personal and did not
represent the administration. He discussed his resume as an
experienced homicide prosecutor for 20 years. He noted that
he taught self-defense law. He spoke against the
legislation. He testified against the bill in prior years
and voiced his continued opposition. He believed the bill
was "dangerous and counterproductive." He knew other state
prosecutors and homicide detectives who were against the
legislation. His opposition was based on two primary
reasons:
· The elimination of the duty to retreat in public
places benefited dangerous and violent criminals. The
self-defense justification was frequently used by
violent criminals in court.
· The change was unnecessary. He reported that "there
was not a single specific case" in recent years that
"the bill would remedy." He stated that, "the bill was
a solution in search of a problem."
Mr. Fayette referenced previous testimony from Brian Judy
[Senior State Liaison] of the National Rifle Association
(NRA) [02/21/13]. He restated the testimony, "House Bill 24
is important self-defense legislation that would provide
that a law abiding person has no duty to retreat." He cited
Mr. Judy's use of the phrase, "law abiding". He announced
that he would support the legislation if it only applied to
law abiding citizens, but legislation specific to law
abiding citizens was impossible to create. He stressed that
the bill would benefit criminals, i.e., domestic abusers,
road rage shooters, drug dealers, gang members, who would
use the law to claim self-defense. He reported that he
routinely worked on analogous cases. Criminals were not
automatically disqualified from self-defense claims in
court. The jury decided whether a disqualifier applied. He
hypothesized a situation where a shooting took place in a
parking lot between two rival gang members that resulted in
a fatality. The evidence under AS 11.81.330 [the provisions
that disqualified the use of force e.g., initial aggressor,
mutual combat, rival group retaliatory activity] was
unclear. He offered that often the prosecutor's most
powerful argument to disqualify a claim of self-defense was
that the necessity to shoot was avoidable if the shooter
retreated. Current law required that a person must retreat
if one can in complete safety. The prosecutor must disprove
self-defense beyond a reasonable doubt to the unanimous
satisfaction of a jury or the trial resulted in an
acquittal.
2:37:24 PM
Mr. Fayette voiced that the bill removed the duty to
retreat from the existing argument. He considered a road
rage scenario with two rival gang members, one claimed to
see a gun in the other car and shoots. The duty to retreat
meant that the shooter could pull over or slow down and the
death was preventable. He reported that under current law a
prosecutor could argue that if the assailant retreated the
shooting was avoidable. The legislation revoked the
provision and nullified the duty to retreat argument.
Mr. Fayette asserted that the bill was unnecessary. He
communicated that existing law protected home owners and
authorized the right for people to defend themselves
without duty to retreat at home. In 2006, the statute was
expanded to include business owners in their place of
business and guests in a home. He pointed out that no one
in the state was unfairly prosecuted in a claim of self-
defense. He observed that the legislation was part of a
nationwide effort. He thought that a perception of
prosecution abuse existed in other states where criminal
defendants did not have the right to consider a claim of
self-defense by a grand jury.
Mr. Fayette declared that he was not an "anti-gun rights
crusader." He was a gun owner, army veteran, and a "fairly
conservative person." He was "keenly aware of a person's
right to defend themselves." He had prosecuted gang members
and murderers in Anchorage for 20 years and could become a
target for violent retribution. He opined that the bill
"was a dangerous expansion of the self-defense law for its
potential for unintended consequences. The bill makes it
easier to kill people and the killers to claim self-
defense." He urged for rejection of the bill.
Representative Costello referred to Mr. Fayette's comments
about gang members. She asked whether he believed gang
members were aware of current laws. Mr. Fayette replied in
the negative. He answered that gang members were not aware,
but their lawyers were obligated to pay attention. A lawyer
will use the law to claim self-defense for their client. He
added that no law abiding person wanted to expand the
rights of criminals, which is what the bill accomplished.
Representative Gara pointed to potential confusion related
to the duty to retreat in current law. He asked for an
explanation. Mr. Fayette answered that "self-defense
litigation was extremely confusing". The prosecutor "must
disprove a negative proposition beyond a reasonable doubt."
He explained that a prosecutor must refute a claim of self-
defense beyond a reasonable doubt. He pointed to two
statutes AS 11.81.330 and AS 11.81.335. He instructed that
the basic elements of the self-defense law for the use of
non-deadly force were contained in AS 11.81.330. Special
rules for the use of deadly force were defined in AS
11.81.335. Together, the statutes shaped multiple
propositions into a justification defense of self-defense.
If enough evidence existed to support the claim of self-
defense, a prosecutor must disprove the self-defense claim
to a jury beyond a reasonable doubt. He related his
personal experience in the courtroom. He emphasized that in
cases of street crime the evidence was indistinct making it
difficult to ascertain whether the special rules applied.
Most often a prosecutor relied on the duty to retreat to
frame the argument against a claim of self-defense.
2:49:00 PM
Representative Gara pointed to the highly publicized case
of Trayvon Martin [Florida, 2012], where the police warned
the shooter not to follow Mr. Martin. He asked, in
reference to current law, whether HB 24 would change the
outcome if a similar situation happened in Alaska. Mr.
Fayette stated that the facts of the Martin case were not
fully reported. He discussed that in a similar scenario in
Alaska, the bill would work in the shooter's defense. The
prosecutor would lose the ability to make a duty to retreat
argument, which increased the chance of the shooters
acquittal.
Vice-Chair Neuman asked whether all individuals involved in
a crime of self-defense should face immediate arrest while
law enforcement subsequently investigated the facts. Mr.
Fayette replied in the negative. He stressed that the case
should be "diligently investigated" by law enforcement and
submitted to a grand jury before arrests were made.
QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY,
DEPARTMENT OF ADMINISTRATION, remarked that the agency had
submitted a zero fiscal note due to the minimal impact on
how the cases would be litigated. He commented that the
question of self-defense and the duty to retreat "were
interconnected questions." He stated that, "the right to
use self-defense was mutually exclusive from the duty to
retreat." He discussed that "deadly force" was authorized
when an imminent threat existed. The duty to retreat
applied when an individual was able to retreat in "complete
and total safety." The issue in self-defense cases was that
the events did not occur simultaneously and the question to
determine was whether deadly force was authorized. He
opined that the duty to retreat arguments was not lost
under HB 24, but the legislation would "reframe" self-
defense litigation. Current law did not place the burden on
a person (the non-aggressor) to leave the scene; it did not
authorize the use of deadly force if the individual did not
leave the scene of the incident. The initial aggressor had
the duty to retreat. He did not perceive a change in the
outcome of self-defense cases as a result of the bill.
Representative Gara related that AS 11.81.330 listed
disqualifiers for a claim of self-defense; one being an
initial aggressor. He recalled from testimony that
determining the initial aggressor was difficult in some
cases. If not provable, the initial aggressor could claim
he/she acted in self-defense. He asked whether Mr. Steiner
had professionally experienced a similar situation. Mr.
Steiner answered that depending on whether or not a witness
was present determined the difficulty of a self-defense
case. He elaborated that initial aggressor aside; a person
was still accountable and required to prove that they had
the authority to use deadly force from an imminent threat.
The situation was the opposite of the duty to retreat
argument. If an imminent threat was not present deadly
force was not authorized. He thought that the bill would
not impact the difficulty in determining whether or not a
person was an initial aggressor. Determining whether or not
the person was an initial aggressor was a crucial question
but separate from the authority to use deadly force.
Representative Gara asked whether currently a person had "a
duty not to shoot" in public places if one could retreat in
complete safety. He wondered if the provision in HB 24
authorized that the person did have the right to use force
in public places. Mr. Steiner answered in the negative. He
stated that "if you change the law and you have the
opportunity to retreat in complete and total safety you do
not have the justification to shoot in the first place." He
detailed that the "mutually exclusive question was if you
can retreat you can't shoot." Elimination of the duty to
retreat will not authorize the authority to use force when
a person never possessed the authority in the first place.
He pointed to the imminent threat question and noted that
preceded the duty to retreat and established the authority
to use force. He reiterated that the law does not place the
burden on a person to retreat.
Representative Holmes asked whether HB 24 would alter the
number of self-defense cases and if the legislation would
increase the number of successful self-defense claims. Mr.
Steiner judged that the legislation would not change the
number of cases or impact the outcome of self-defense
cases.
2:59:02 PM
Representative Holmes wondered what the bill would actually
accomplish. Mr. Steiner thought that the bill would
"reframe how the issues were argued." The justification
would focus on the authority to use deadly force from an
imminent threat rather than a duty to retreat.
Co-Chair Stoltze asked about his experience related to
grand jury indictments of self-defense. He asked whether it
was difficult to obtain an indictment for self-defense
cases. Mr. Steiner replied that he did not present cases to
the grand jury. He discerned that it was not difficult to
obtain an indictment with a proper probable cause argument.
Co-Chair Stoltze related personal experience. He asked
whether the state would experience fewer or increased cases
if "there was a higher hurdle for the Department of Law" to
charge for murder in a self-defense case and how that would
impact the public defender agency. He believed that the
legislation provided protection against biased prosecutors,
for citizens who were diligently exercising the right to
defend themself. Mr. Steiner restated that the legislation
would not have an impact on the state.
Representative Costello stated that the legislature had
addressed the issue in previous years. She understood the
requirements, but wondered whether it was possible for a
person under imminent threat to hurriedly determine a place
to retreat in a public place. She asked how a jury
addressed the duty to retreat. Mr. Steiner answered that
the state was required to show that the person could
retreat in complete and total safety. The state would
investigate the circumstances around the event. The jury
would have to weigh the facts.
Representative Costello expressed skepticism that the duty
to retreat could be sufficiently established.
Representative Gara discussed current law. He recapped that
unless a person was at home, work, or was a police officer,
a person presented with a situation to retreat in complete
and total safety must retreat. He wondered what happened in
a place where a person was legally allowed to be. He asked
whether the bill authorized the use of force in a public
place when an avenue of retreat was present. Mr. Steiner
relayed that the current statute as interpreted by the
courts meant that a person could not "shoot" someone if an
opportunity to retreat in complete safety presented itself.
At that moment you did not have the authority to use force,
but you did not have to retreat. He thought that the
wording of the statute juxtaposed with the interpretation
caused confusion. A person had no obligation to actually
retreat just not use deadly force.
3:08:55 PM
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW (via teleconference), indicated
that the impact of the bill to the department was minimal.
The department would not alter the case review process for
the grand jury. He expounded that the self-defense statute
was implemented in 1980. Since then the state experienced
little change in the number of self-defense cases. A major
change to the statute occurred in 2006, which extended the
places where a duty to retreat was not authorized.
Subsequently, the homicide rate in Alaska decreased. He
qualified that there was not a direct correlation between
the two actions. He reported that the use of self-defense
did not increase in most of the states that had enacted
similar legislation. He noted that Florida's process was
substantially different than how Alaska dealt with self-
defense cases (he referred to Representative Gara's earlier
question about the Treyvon Martin case in Florida. In
Alaska, the question was decided by a jury and in Florida
the determination was made by the courts; it was not a fair
comparison. He communicated that in self-defense cases the
state needed to disprove all of the elements including the
duty to retreat, beyond a reasonable doubt. He stated that,
self-defense cases were the most "difficult defenses" to
face for a prosecutor.
Mr. Svobodny addressed Representative Costello's earlier
question about how charging decisions were made. He
explained that the department thoroughly screened cases and
only proceeded with cases when self-defense could be
disproven beyond a reasonable doubt. He offered that he had
experienced similar self-defense cases as Mr. Fayette had
when it was not possible to discern the elements of the
self-defense case. He maintained that the cases were
screened out and did not proceed to the grand jury. He
reminded the committee that a jury ultimately decided
whether self-defense was warranted.
Mr. Svobodny voiced that self-defense claims were the only
cases where the state must "disprove a negative" meaning
that the person did not act in self-defense; and refute the
claim beyond a reasonable doubt. He doubted that the law
would cause a person to "hesitate to act" to defend one's
life. He related that he was explaining the process and not
arguing against the bill. He restated that he did not
anticipate a financial, procedural, or case load impact for
DOL if the legislation was adopted.
Co-Chair Stoltze asked how long Mr. Svobodny had worked in
criminal law prosecutions for the department. Mr. Svobodny
answered that he had worked for the criminal division for
approximately 33 years and for DOL for a total of 35 years.
Co-Chair Stoltze asked what the department's percentage of
criminal indictments was. Mr. Svobodny answered that the
goal was 100 percent. He did not know the percentage. He
stated that self-defense arose in homicide and serious
assault cases.
Co-Chair Stoltze referenced Mr. Fayette's testimony that
the legislation would make it more difficult for
prosecutors to obtain indictments in self-defense cases. He
asked for clarification. Mr. Svobodny replied that he would
question the ability of a prosecutor who was having
difficulty obtaining indictments.
3:17:36 PM
Representative Holmes asked whether the self-defense plea
would be used more frequently and with increased success if
the bill passed. Mr. Svobodny answered that by the time a
self-defense case preceded to a jury many of the elements
and disqualifiers were examined and increased success was
unlikely.
Representative Holmes believed the committee members shared
the same goal of prosecuting criminals. She wondered if the
legislation accidentally helped criminals. Mr. Svobodny
replied that if the department was properly executing the
law no one who legitimately acted in self-defense would be
indicted.
Representative Gara discussed previous year's testimony by
DOL that the bill would make it more difficult to determine
the initial aggressor; therefore, more difficult to
prosecute gang violence. He noted that the testimony had
come from Anne Carpeneti [Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of
Law]. Mr. Svobodny replied that "there was not enough
statistical information to answer the question." He thought
that most of the gang violence fell into the category of
mutual combat, which disqualified a claim of self-defense.
Representative Gara summarized current law. He relayed that
unless a person was at home, work, or was a police officer,
a person presented with a situation to retreat in complete
and total safety must avoid lethal force. The bill added
"anywhere a person had the legal right to be." He asked how
the legislation would impact the law "when you have a duty
with complete personal safety and safety to others to not
shoot."
Mr. Svobodny stated that "the answer is that doesn't exist
anymore … the common law will have gone away."
Representative Gara asked why the legislature should change
the law if currently a person could retreat in complete and
total safety in a public place and avoid the use of lethal
force. Mr. Svobodny was unable to answer the question. He
thought the question was best answered by the bill's
sponsor.
Representative Gara was trying to determine the difference
between the current law and the legislation. He wondered
how the bill changed a person's ability to use deadly force
in self-defense in a public place. He wondered how the law
was expanded with passage of the bill. Mr. Svobodny deduced
that if the bill passed litigation would ensue to determine
where a person had a legal right to be. He believed that
the amount of time that the duty to retreat issue would
arise in court would be insignificant.
Representative Gara reiterated his desire to understand the
difference between the current law and the legislation in a
public place.
Mr. Svobodny answered that "if a person can use deadly
force and they did not have to use deadly force if they
chose to retreat the difference is the person could now
stand their ground and shoot if you are using a firearm…"
He thought that the bill also removed the ambiguity whether
the person had the right to retreat in instances when the
person was protecting others.
3:28:09 PM
Representative Gara reiterated his question. He asked if a
person was in a place where he/she was legally allowed "is
there a circumstance where under current law because you
have the ability to not shoot with complete safety to
yourself or others that you would be able to shoot somebody
if the bill is passed." Mr. Svobodny answered, "yes."
Representative Gara questioned what the circumstances were.
Mr. Svobodny discerned that the concern was with situations
when a person had the duty to retreat under current law and
a person could choose not retreat under HB 24 provisions.
He thought that lawyers were likely to make the distinction
in court.
Representative Holmes referenced Mr. Svobodny's testimony
asserting that determining where a person had a legal right
to be would generate a great deal of litigation. She
wondered how that would affect the fiscal note. She pointed
to the department's zero fiscal note. She noted that past
versions of the bill had a more costly fiscal note.
Representative Costello referenced Representative Gara's
testimony that in previous years the department took a
position against the bill. She discussed that after
reviewing her notes from the prior session that DOL had no
previous position on the bill. She wanted to clarify the
record.
Co-Chair Stoltze commented that Michael Geraghty, Attorney
General, Department of Law, sent a letter to the Senate
that countered Mr. Fayette's testimony. He notified the
committee that the letter would be distributed to the
members. He believed that there was a subjective,
pejorative connotation and critique by Mr. Fayette about
the department's position on HB 24 and those testifying on
the department's behalf.
ADJOURNMENT
3:35:32 PM
The meeting was adjourned at 3:35 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 24 Additional Statutes AS 11 81 340 & 350 3rd Party & Property.pdf |
HFIN 2/25/2013 1:30:00 PM |
HB 24 |