Legislature(2009 - 2010)BUTROVICH 205
04/16/2010 09:15 AM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| HB381 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | HB 381 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 16, 2010
9:38 a.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
Senator Dennis Egan
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 381(JUD)
"An Act relating to self defense in any place where a person has
a right to be."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 381
SHORT TITLE: SELF DEFENSE
SPONSOR(s): REPRESENTATIVE(s) NEUMAN
02/23/10 (H) READ THE FIRST TIME - REFERRALS
02/23/10 (H) JUD, FIN
03/15/10 (H) JUD AT 1:00 PM CAPITOL 120
03/15/10 (H) Heard & Held
03/15/10 (H) MINUTE(JUD)
03/29/10 (H) JUD RPT CS(JUD) NT 3DP 1DNP 2NR
03/29/10 (H) DP: LYNN, GATTO, RAMRAS
03/29/10 (H) DNP: HOLMES
03/29/10 (H) NR: GRUENBERG, HERRON
03/29/10 (H) JUD AT 1:00 PM CAPITOL 120
03/29/10 (H) Moved CSHB 381(JUD) Out of Committee
03/29/10 (H) MINUTE(JUD)
04/08/10 (H) FIN AT 9:00 AM HOUSE FINANCE 519
04/08/10 (H) Moved CSHB 381(JUD) Out of Committee
04/08/10 (H) MINUTE(FIN)
04/09/10 (H) FIN RPT CS(JUD) NT 6DP 1DNP 2NR
04/09/10 (H) DP: THOMAS, N.FOSTER, KELLY, SALMON,
STOLTZE, HAWKER
04/09/10 (H) DNP: DOOGAN
04/09/10 (H) NR: GARA, JOULE
04/12/10 (H) TRANSMITTED TO (S)
04/12/10 (H) VERSION: CSHB 381(JUD)
04/13/10 (S) READ THE FIRST TIME - REFERRALS
04/13/10 (S) JUD, FIN
04/15/10 (S) JUD AT 8:30 AM BUTROVICH 205
04/15/10 (S) Heard & Held
04/15/10 (S) MINUTE(JUD)
WITNESS REGISTER
JOHN STRALEY, representing himself
Sitka, AK
POSITION STATEMENT: Testified in opposition to HB 381.
BRIAN JUDY, Alaska Liaison
National Rifle Association (NRA)
POSITION STATEMENT: Testified in support of HB 381.
CHUCK KOPP, representing himself
POSITION STATEMENT: Testified in strong support of HB 381, but
suggested caution.
SUE MCLEAN, Director
Criminal Division
Department of Law (DOL)
POSITION STATEMENT: Testified that DOL is opposed to HB 381.
ACTION NARRATIVE
9:38:35 AM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 9:38 a.m. Senators McGuire,
Wielechowski, Coghill, and French were present at the call to
order.
HB 381-SELF DEFENSE
9:38:47 AM
CHAIR FRENCH announced the consideration of HB 318. [CSHB
381(JUD) was before the committee.] It was heard previously at
which time testimony was taken from the sponsor and DOL and one
public member.
JOHN STRALEY, representing himself, informed the committee that
he has been a criminal defense investigator since 1984 and the
author of several crime novels. Based on that experience he is
speaking in opposition to HB 381. The current law works and
protects citizens. It asks that people pause before using deadly
force in potentially violent confrontations, whereas the
proposed change is an invitation to gun fighting. He related
that he has sat with dozens of criminal defendants after a
homicide and although the circumstances are all different, a
unifying theme is that almost all felt justified in the instant
that they took a life. But later, and often just seconds later,
these criminal defendants saw that their judgment was flawed or
clouded and wrong. We don't need to send citizens the message
that conflict should be quickly resolved by violence and that's
what HB 381 does, he said.
9:43:27 AM
MR. STRALEY observed that the language in the bill sounds
reasonable and like it's just a small change, but it's like
changing a compass course a few degrees. Over time it will have
a wide impact on Alaskan life. He related that his and other
crime stories are about citizens bypassing the flawed and
burdensome justice system to mete out moral vengeance. His
stories clearly differentiate between the good guys and the bad
guys and the good guys always win. But this bill isn't crafting
a novel. Crafting legislation is a slow and deliberative process
that considers the effects and consequences.
MR. STRALEY expressed his strong belief that this small change
will increase gun violence and ironically it will offer the bad
guys one less hurdle to jump for killings that they might want
to commit. HB 381 doesn't require somebody to retreat or pause
to consider the consequences. He suggested that if the committee
isn't inclined to listen to him then it should listen to the
Department of Law, and people like Rick Svobodny who have
written to oppose this bill. HB 381 is well intentioned, but it
sends the wrong message and the results will have deadly
consequences, he concluded.
9:48:47 AM
BRIAN JUDY, Alaska Liaison, National Rifle Association (NRA),
described HB 381 as important legislation that provides
protection and assurance that a person doesn't have to retreat
when he/she is lawfully in a place and feels threatened. He
pointed out that existing Alaska law already specifies that a
person has no duty to retreat if he/she is "on premises which
the person owns or where the person resides or in a building
where the person works." The intent of HB 381 is to extend that
to any place where a person has a legal right to be.
Under the proposed language of HB 381, a person who is dragged
into an alley by a rapist or a person who is dragged into a car
by a kidnapper has no duty to retreat and they may fight back
with force. The NRA views it as common sense to be able to stand
one's ground and meet force with force, he said.
MR. JUDY reiterated that law-abiding citizens shouldn't fear
criminal prosecution when they stand their ground and defend
themselves when in a place that they have a legal right to be.
On behalf of the NRA he urged support for HB 381.
9:55:27 AM
CHUCK KOPP, representing himself, said he is speaking in strong
support of the intent of HB 381 to help protect innocent
citizens, but he has reservations about the unintended
consequences as currently written.
MR. KOPP pointed out that existing law appropriately identifies
in Title 11 that the use of deadly force is justified when used
to defend against murder, felony assault, kidnapping, sexual
assault, and sexual abuse of a minor when perpetrated in your
home, place of work and anyplace you are protecting a family
member. However, the law also recognizes that most uncomfortable
aggressive or violent encounters don't rise to this level. Most
occur in public places and there's a fundamental assumption in
the law that people show deference and yield to one another in
these shared access areas.
MR. KOPP said that while the sponsor statement says that this
legislation makes it clear that it's the criminals who have a
duty to retreat, the reality is that when violence erupts the
ensuing investigation has difficulty determining who the
criminal is in the matter.
MR. KOPP offered his belief that the current law establishes a
correct balance between the right to defend oneself and the duty
to yield. He cautioned that HB 381 may have the unintended
impact of tipping the balance to an overzealous use of deadly
force in self defense. He highlighted that the Department of Law
drafted an amendment that addresses his concerns and carries
forward the intent of the sponsor.
10:00:41 AM
SENATOR WIELECHOWSKI asked if he is expressing support for the
proposed amendment that is on members' desks.
MR KOPP answered yes.
SENATOR MCGUIRE asked to hear from the Department of Law.
SUE MCLEAN, Director, Criminal Division, Department of Law
(DOL), stated that while the proposed amendment may be a
compromise, DOL is still opposed to HB 381. Mr. Judy suggested
that the purpose of this law is to relieve a person of the fear
of prosecution for defending him or herself, but what hasn't
been said is that there is an extraordinary and unacceptable
problem with prosecuting people after they have defended
themselves. When a homicide or use of deadly force incident is
being investigated, the state is aware that it has the burden to
prove that a person did not act in self defense otherwise it
will face a judgment of acquittal. This means that a case isn't
filed when it appears that there's reasonable doubt.
10:03:48 AM
MS. MCLEAN provided the following illustrations where DOL
declined to prosecute because it saw self defense:
· Mr. A was in a public park and came on to a woman. She
called her boyfriend on her cell phone to report that a man
was harassing her. The boyfriend possibly heard that the
man was threatening his girlfriend. The boyfriend rushes to
the park and approaches Mr. A with a baseball bat in his
raised hand. Mr. A has a gun in his waistband and shoots
the boyfriend. DOL reviewed the circumstances and
determined it couldn't prove a) that Mr. A had started a
violent incident and therefore couldn't claim self defense
because it wasn't clear that he was in any way physically
threatening the girlfriend; and b) that Mr. A knew that he
could retreat. This was a situation that came up quickly
and a bat absolutely is a deadly weapon so Mr. A was not
charged. HB 381 will exacerbate this type of situation, she
asserted.
· Mr. A was found stabbed to death and in a ditch. There was
no eyewitness but the police learned that he was seen
arguing with Mr. B earlier in the evening. Mr. B
acknowledged that they had been arguing. Mr. B said Mr. A
threw a coat over my head and I knew that he always carried
a knife so I thought he was trying to catch me off guard so
he could stab me. I ripped the coat off my head and I
stabbed him. Because there were no eyewitnesses DOL knew it
couldn't prove that Mr. B's story wasn't true so he wasn't
charged.
CHAIR FRENCH recessed the meeting from 10:06 a.m. to 10:25 a.m.
due to a fire alarm.
10:25:26 AM
MS. MCLEAN provided a third example where the state did not file
charges because it could not prove that the person did not act
in self defense.
· The police were called because Mr. A was sitting on the
curb and it appeared that his throat had been cut. Mr. A
said he and Mr. B were in the adjacent apartment building
and they were fighting. Mr. A was intoxicated. A woman in
the apartment said she saw Mr. B cutting Mr. A but she
didn't know what happened before that because she was in a
different room, but she could hear them quarreling. Mr. B
told the police that he and Mr. A were fighting. He said
Mr. A tried to strangle me and I felt that I had to use
deadly force to prevent my being killed. The intoxicated
Mr. A said he didn't know where his hands were when he was
fighting Mr. B. The state's perspective is that it didn't
see a duty to retreat and couldn't disprove the
reasonableness of Mr. B's use of force.
MS. MCLEAN noted that the packets have a copy of the jury
instructions and use note that are typically given in cases
where deadly force is used. It clearly states that a person may
use deadly force unless he/she knows that he/she can safely
retreat. The retreat duty doesn't apply in the specified
circumstances like the home. These cases that are before a jury
have already gone through a screening process in which DOL has
assessed them and made a decision that there is no reasonable
basis to claim self defense in the case and charged. That's an
example of why it's troubling to have a bill in which it is
alleged that people need protection from overzealous prosecutors
who are prosecuting people who have legitimately acted in self
defense.
10:29:20 AM
MS. MCLEAN emphasized that DOL believes that if this bill
becomes law it will absolutely increase trials. A defense
attorney now might advise a client to consider a resolution that
would save some jail time, but under this bill the defense
attorney is likely to advise a client to go to trial because
he/she didn't have to retreat. Furthermore, this change in the
law would give unreasonable people a license to act unreasonable
and not retreat. The prosecution won't be able to say that it
wasn't reasonable for a person not to retreat when there's a law
that says they the person didn't need to retreat.
10:33:45 AM
CHAIR FRENCH moved conceptual Amendment 1 and objected for
discussion purposes.
AMENDMENT 1
Add at the end of paragraph (5):
Provided that such person may use deadly force against
an intruder or attacker in a place that is not his or
her residence without a duty to retreat only if the
person reasonably believes that he or she or another
is in imminent danger of death or serious bodily harm
from which he or she or another can only be saved by
the sue of deadly force against the intruder or
attacker.
CHAIR FRENCH, noting that the amendment came from the Department
of Law, asked DOL for an explanation.
MS. MCLEAN reiterated that DOL is opposed to this bill. The
amendment attempts to say that a person that is in a place they
have a right to be can use deadly force if the evidence shows
that it was the only way that the person could have defended
him/herself against death or serious physical injury.
10:36:09 AM
CHAIR FRENCH removed his objection to Amendment 1
SENATOR COGHILL asked for help understanding the nexus between
"reasonably believes" [on line 3] and "only" [be saved] on line
4.
SENATOR WIELECHOWSKI interpreted it to mean that a person
reasonably believes that they can only be saved by the use of
deadly force.
CHAIR FRENCH agreed.
SENATOR COGHILL said that's the clarification he wanted;
otherwise there could be two standards.
10:37:55 AM
CHAIR FRENCH observed that the instructions that the jury
receives is helpful. He read the following reasonableness clause
from the pattern jury instruction that is given in cases
involving use of deadly force in defense of self or others:
The reasonableness of a defendant's beliefs must be
evaluated by the jury based on the circumstances of
the situation facing the defendant, including any
relevant knowledge the defendant had about the other
person; physical attributes of all persons involved
(including the defendant); and any prior experiences
that could provide a reasonable basis for the
defendant's beliefs.
SENATOR COGHILL observed that "reasonably" gives the mental
state while "only" says that it's without regard to mental
state.
SENATOR WIELECHOWSKI asked if "reasonably believes" is an
objective standard or a subjective standard.
MS. MCLEAN explained that there are always two standards in self
defense. First, there has to be proof of an actual subjective
belief - the defendant has to actually believe it. Second, there
has to be a subjective belief that the jury is willing to regard
as reasonable.
10:39:30 AM
CHAIR FRENCH added that the reasonableness clause is somewhat
subjective, but reasonable belief means that a reasonable person
would have held such a belief under the same circumstance.
SENATOR COGHILL observed that the part people will have to look
at is whether or not [the use of deadly force] was the only way
out.
CHAIR FRENCH reminded the committee that it's the prosecution
that will have to disprove the defense beyond a reasonable
doubt. The defendant doesn't have to prove that their action was
reasonable.
10:41:00 AM
SENATOR MCGUIRE asked how intoxication is treated.
MS. MCLEAN advised that intoxication is not a defense to a
criminal act unless the charge is an intentional criminal act.
In the case of homicide it is first degree murder with the
specific intent to kill and then the jury can consider it as how
it impacted the defendant's ability to form an intent.
CHAIR FRENCH asked how it plays out in a self defense claim.
MS. MCLEAN replied you're talking about diminished capacity and
the status of that defense is always up in the air in Alaska.
Basically, if self defense is raised the jury will hear
everything.
SENATOR MCGUIRE said she appreciates the sentiment of the bill
and she intends to support it, but she's concerned about the use
of alcohol and how this may be interpreted by young people who
are already inclined to pull out a knife or gun to settle a
dispute.
10:46:14 AM
CHAIR FRENCH announced that without further objection,
conceptual Amendment 1 is adopted. He held HB 381 in committee.
CHAIR FRENCH recessed the meeting to a call of the chair at
10:46 a.m.
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