Legislature(2009 - 2010)BUTROVICH 205
04/12/2010 08:30 AM Senate JUDICIARY
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| HB408 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 408 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 12, 2010
8:30 a.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 408(JUD)
"An Act relating to misconduct involving weapons."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 408
SHORT TITLE: MISCONDUCT INVOLVING WEAPONS
SPONSOR(s): JUDICIARY
02/26/10 (H) READ THE FIRST TIME - REFERRALS
02/26/10 (H) JUD, FIN
03/12/10 (H) JUD AT 1:00 PM CAPITOL 120
03/12/10 (H) Heard & Held
03/12/10 (H) MINUTE(JUD)
03/24/10 (H) JUD AT 1:00 PM CAPITOL 120
03/24/10 (H) <Bill Hearing Rescheduled to 03/25/10>
03/25/10 (H) JUD AT 1:00 PM CAPITOL 120
03/25/10 (H) Moved CSHB 408(JUD) Out of Committee
03/25/10 (H) MINUTE(JUD)
03/26/10 (H) JUD RPT CS(JUD) 2DP 2NR
03/26/10 (H) DP: LYNN, RAMRAS
03/26/10 (H) NR: HERRON, GATTO
04/08/10 (H) FIN AT 9:00 AM HOUSE FINANCE 519
04/08/10 (H) Moved CSHB 408(JUD) Out of Committee
04/08/10 (H) MINUTE(FIN)
04/09/10 (H) FIN RPT CS(JUD) 9DP
04/09/10 (H) DP: THOMAS, GARA, DOOGAN, JOULE,
N.FOSTER, KELLY, SALMON, STOLTZE,
HAWKER
04/10/10 (H) TRANSMITTED TO (S)
04/10/10 (H) VERSION: CSHB 408(JUD)
04/11/10 (S) READ THE FIRST TIME - REFERRALS
04/11/10 (S) JUD
04/12/10 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of HB 408.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided information related to HB 408.
DONALD M. CLARK, representing himself
POSITION STATEMENT: Testified in support of HB 408.
BRIAN JUDY, Alaska state liaison
National Rifle Association (NRA
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 408.
C.E. TANNER, representing self
POSITION STATEMENT: Testified in support of HB 408.
RON STERLING, representing himself
POSITION STATEMENT: Testified in support of HB 408.
ERIC STANLEY, representing himself
POSITION STATEMENT: Testified in support of HB 408.
WILLIAM SATTERBERG, representing himself
POSITION STATEMENT: Testified in support of HB 408.
RICHARD PATTERSON, representing himself
POSITION STATEMENT: Testified in support of HB 408.
JAMES ADAMS, representing himself
POSITION STATEMENT: Testified in support of HB 408.
SUE MCLEAN, Director
Criminal Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Raised concerns about HB 408.
ACTION NARRATIVE
8:30:18 AM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 8:30 a.m. Present at the call to
order were Senators Coghill, Wielechowski, Egan, and French.
HB 408-MISCONDUCT INVOLVING WEAPONS
8:30:29 AM
CHAIR FRENCH announced the consideration of HB 408. [CSHB
408(JUD) was before the committee.]
REPRESENTATIVE JAY RAMRAS, sponsor of HB 408, related that in
committee and on the House floor HB 408 has been informally
retitled "a restoration of rights bill." He introduced the bill
speaking to the following sponsor statement.
Under Alaska law, an individual who has been convicted
of a felony can carry handguns and have their right to
bear arms restored by any of three occurrences: 1) a
pardon, 2) the underlying conviction having been set
aside under AS 12.55.085, or 3) by the passage of ten
years time from an unconditional discharge.
However, the U.S. Supreme Court in the case of Caron
v. U.S., 524 U.S. 308 (1998), ruled that if a person
who has been previously convicted of a felony is
prohibited from possessing firearms, in any way, under
state law, then they are prohibited from possessing
firearms under federal law.
While under state law a previously convicted ex-
felon's right to possession of firearms is fully
restored, there are still limitations on carrying
concealed weapons. Ex-felons can carry concealed on
their own property, while engaged in lawful hunting,
fishing, or trapping, or while engaged in other lawful
activities that necessarily involves the carrying of a
weapon for personal protection.
However, the ATF and the FBI are interpreting Alaska's
statute to be a restriction upon possession. Due to
this interpretation, Alaskans who under state law are
allowed to possess firearms are being threatened with
prosecution for serious federal offenses.
This bill addresses the language in AS 11.61.200,
Misconduct Involving Weapons in the Third Degree. AS
11.61.200(a)(12) bars all people convicted of felonies
from carrying concealed weapons, while AS 11.61.200(g)
sets out exemptions to (a)(12)'s blanket ban.
The Alaska State Legislature has made its own policy
decision about how to handle the gun rights of ex-
felons. HB 408 is one of the many bills that have been
drafted in this legislation session to bring this
issue back before the Alaska State Legislature for
consideration.
CHAIR FRENCH opened public testimony.
8:38:26 AM
DONALD M. CLARK, representing himself, said he never had a
blemish on his record until about ten years ago when he made a
poor decision and agreed to grow a few plants for his lady
friend to support her habit. His attorney explained that if he
pled guilty he would receive a fine, get two years probation,
and a suspended imposition of sentence. After completing the
conditions set out by the court he expected to get his rights
back, but that didn't happen. A year or so later when he tried
to purchase a shotgun the federal government turned him down.
This was in spite of the fact that the judge and prosecuting
attorney assured him that his rights had been restored. After
exhausting his options he retained an attorney to try to right
the system for himself and others caught in the same dilemma. HB
408 would correct the problem.
8:40:28 AM
BRIAN JUDY, Alaska state liaison, National Rifle Association
(NRA), said HB 408 is not about giving firearms to felons
because the state's policy already is to restore firearm rights
to former offenders upon release from incarceration. The right
to possess handguns is restored if the person receives a pardon
or a "set aside" or 10 years after unconditional discharge. The
individual can now openly carry handguns anywhere in the state
and they can carry concealed at home, on their property, or if
they are engaged in a lawful outdoor activity. This restores
essentially 95 percent of their rights. But because the state
doesn't go the extra step and restore 100 percent of the rights,
these individuals have zero rights for the purpose of the
federal law and they can be prosecuted for possession of a
firearm. HB 408 takes that extra step and facilitates the
implementation of the existing state policy.
HB 408 removes the slight restriction on concealed carry and it
changes the affirmative defense in AS 11.61.200 to an exception.
Without these small technical changes, the federal government
extinguishes all the rights of these individuals who have
already paid their debt to society.
8:43:44 AM
C.E. TANNER, representing self, said that 30 years ago he
committed a felony and spent some time under federal
supervision, but for the past 25 years he's lived an exemplary
life. Before he retired three years ago, he was a real estate
broker and general contractor. Shortly after he was released
from federal supervision, he applied for and received a federal
relief of disability for firearms. After the Legislature passed
the concealed carry permit legislation, he applied for and
received a concealed carry permit. He renewed the permit several
times and then last year the Alaska Department of Public Safety
(DPS) interpreted the statute differently and refused to renew
his permit. This is discriminatory and he therefore supports
passage of HB 408.
8:46:59 AM
RON STERLING, representing himself, said he committed a drug
offense at age 18 and was sentenced to probation and four
weekends in jail. Although he paid his debt, he is still paying
40 years later because of the different standards between state
and federal law. The offense was expunged from his record and a
background check by the Alaska State Troopers indicated that he
had no criminal record with the state. Even so, when he tried to
buy firearms for target shooting he was denied. He thanked the
committee for hopefully correcting this wrong.
8:49:33 AM
ERIC STANLEY, representing himself, said that over ten years ago
when he was in his late teens and living on the Aleutian Chain
he made a poor decision to receive stolen property. The result
is that he went to jail directly after he graduated from high
school. It was a life-changing experience. He served 30-45 days
after which he completed three years probation and received a
suspended imposition of sentence. He now has a teenage daughter
and would like to take her hunting and target shooting. He'd
also like to carry a firearm for protection from bears when he's
fishing.
8:55:47 AM
SENATOR WIELECHOWSKI asked if a convicted felon could carry a
rifle or shotgun.
JANE PIERSON, Staff to Representative Jay Ramras, said no
because of the all-or-nothing provision in federal law.
Senator McGuire joined the committee.
WILLIAM R. SATTERBERG, representing himself, said he is strongly
in favor of HB 408. He has practiced law for about 34 years and
a major portion of the work he does in the area of criminal
defense, both federal and state. He explained that for years the
state has had suspended imposition of sentence (SIS), which
means that an offender who complies with the requirements that
the court has imposed can have their civil rights restored. Up
until last April these individuals were told that this included
getting their gun rights restored. At that time the Attorney
General's Office changed position and said that in light of the
Caron decision and the disjoint between state and federal law,
the state cannot restore weapon rights. Doing so would allow a
person to violate federal law. He provided an example.
8:58:42 AM
MR. SATTERBERG opined that this is a situation where the state
must come into conformity with federal law because the federal
government is not going to make an exception for Alaska. If HB
408 were to pass, the state would be in complete parallel with
the federal government and these individuals would be able to
have weapon rights. The fact that there's an affirmative defense
effectively denies thousands of Alaskans the right to own
weapons after they have fulfilled their debt to society. He
urged the committee to pass HB 408.
9:01:14 AM
RICHARD PATTERSON, representing himself, spoke in support of HB
408. He said he is a rescue pilot who has saved thousands of
lives in his long career. He related that about 20 years ago he
made an error, pled no contest, and completed four years
probation. At the time he discussed with counsel the job
ramifications of losing his firearm rights and he researched
state documents. At that time the clemency handbook clearly
stated that he did not need a pardon and the state would gladly
restore his rights to carry long guns. As time went on he
learned that things weren't as they originally seemed. In 2006
he applied for and received a full and unconditional pardon from
the governor. It specifically states that its purpose is to
restore his rights to possess and use handguns, but that hasn't
been the case. He urged the committee to pass HB 408 and make AS
11.61.200 function as intended.
9:07:55 AM
JAMES ADAMS, representing himself, related that in 1985 he
entered a no contest plea on a felony offense and received 5
years probation. The judge waived the condition of not having a
concealable weapon and as a special condition said that the
firearms provision would be excluded provided permission was
granted from the federal government. In 1986 when he started
probation he applied for and received a federal firearms
license. He held that license for about 15 years but in the late
'90s he had to give it up.
MR. ADAMS said he's 64 years old and would like to use his
training and be a gunsmith when he retires but at this point he
isn't allowed to own a gun or go shooting for enjoyment. He said
he fulfilled the commitment he made in his plea agreement and
would like the state to fulfill its agreement with him and
restore his firearms rights.
9:12:46 AM
SUE MCLEAN, Director, Criminal Division, Department of Law
(DOL), said she would affirm that the foregoing testimony is an
accurate depiction of the conflict between the federal and state
possession of firearms laws. Because people who have a suspended
imposition of sentence can't carry concealed except in their
home or on their property or hunting and fishing, the FBI reads
that as a complete prohibition against the possession or
purchase of firearms.
CHAIR FRENCH opined that it's hard to get that result from
reading Caron v. U.S.
MS. MCLEAN said that people who have had trouble with their
federal gun rights are often referred to her even though she can
do nothing to help because their problem is with the federal
government. Nonetheless, she speaks to the FBI representative
about this frequently and is always told to tell people that the
fact that they have rights under the state to possess firearms
doesn't mean that they have federal rights to possess firearms.
9:15:22 AM
CHAIR FRENCH summarized that the people who testified this
morning don't have a problem with state government; they have a
problem with the federal government although it circles around
to the fact that the federal government blames the state's laws.
MS. MCLEAN clarified that the federal government's
interpretation is that AS 11.61.200(g) allows a person who has a
set aside to carry a concealed weapon with exceptions. They may
carry a concealed weapon only in their home, on their property,
or when engaged in hunting and fishing activities and it's
needed for self protection. The federal government reads that
exception to the permission to carry concealed as being "a
restriction on the restoration of your firearms rights." If
there's any restriction in statutory law, it applies to all
felons.
CHAIR FRENCH asked if there'd been a change in policy or
interpretation since the administration changed in Washington
DC.
MS. MCLEAN answered no. She said she understands why the sponsor
is seeking the change in state law, but DOL has concerns about
repealing the affirmative defense for concealed weapons. This
switches the burden to the state to prove that a person does not
have a right to possess a firearm. That will be a difficult
burden because of the difficulty in calculating when the
unconditional discharge occurs.
9:19:00 AM
CHAIR FRENCH questioned why it's difficult to pinpoint.
MS. MCLEAN said it's always a problem with people who come from
other states because time served is measure differently
depending on the state. For example, one state measures time
served as the time a person is on probation.
CHAIR FRENCH observed that if the requirement is ten years after
unconditional release, the person will have lived a blame-free
life for a significant number of years before their firearm's
rights are restored.
MS. MCLEAN said yes; the difficulty will be in calculating that
date or knowing if they have a pardon. She reminded the
committee that the state's position is to know that it can prove
every element beyond a reasonable doubt before bringing the
charge. It would be difficult to look at a record and know that
a person didn't have a pardon.
CHAIR FRENCH agreed it's hard to prove a negative.
MS. MCLEAN said it would be easier if this law provided the same
requirement as the state's sex offender registration law. It
requires the sex offender to come forward and show that they no
longer have to register.
CHAIR FRENCH asked if she knows how many unconditional pardons
have been granted to felons in Alaska because his understanding
is that they are extremely rare in this state.
9:21:16 AM
MS. MCLEAN said the Governor's Office probably has a record but
she believes that it's more than two. The problem is tracking
the information from other states.
REPRESENTATIVE RAMRAS said he doesn't disagree with DOL that
there's a policy call embedded in the bill, but he deferred to
the many Alaskans that have testified rather than those people
who might move to this state and provide an affirmative defense
and assert one of the three claims: 1) a pardon, 2) the
conviction having been set aside, or 3) by the passage of ten
years after an unconditional release.
MS. PIERSON added that the policy call they decided on was that
it should be the state's burden of proof in a criminal case.
CHAIR FRENCH announced that he would hold HB 408 in committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 9:23 a.m.
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