03/03/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB108 | |
| SB128 | |
| SB176 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 128 | TELECONFERENCED | |
| *+ | SB 176 | TELECONFERENCED | |
| += | SB 171 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 108 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 3, 2014
1:36 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Fred Dyson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Donald Olson
COMMITTEE CALENDAR
SENATE BILL NO. 108
"An Act relating to the confidentiality of certain records of
criminal cases; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 128
"An Act relating to the crime of harassment."
- HEARD & HELD
SENATE BILL NO. 176
"An Act relating to the regulation of firearms and knives by the
University of Alaska."
- HEARD & HELD
SENATE BILL NO. 171
"An Act relating to multidisciplinary child protection teams;
and relating to investigation of child abuse or neglect."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 108
SHORT TITLE: LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS
SPONSOR(s): SENATOR(s) DYSON
01/22/14 (S) PREFILE RELEASED 1/10/14
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD, FIN
02/24/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/24/14 (S) Heard & Held
02/24/14 (S) MINUTE(JUD)
02/28/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/28/14 (S) Heard & Held
02/28/14 (S) MINUTE(JUD)
03/03/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 128
SHORT TITLE: ELECTRONIC BULLYING
SPONSOR(s): SENATOR(s) MEYER
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD
02/17/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/14 (S) Scheduled But Not Heard
02/19/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/14 (S) Heard & Held
02/19/14 (S) MINUTE(JUD)
03/03/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 176
SHORT TITLE: REG. OF FIREARMS/KNIVES BY UNIVERSITY
SPONSOR(s): SENATOR(s) COGHILL
02/14/14 (S) READ THE FIRST TIME - REFERRALS
02/14/14 (S) JUD
03/03/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
CHUCK KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented changes in SB 108 on behalf of the
sponsor.
NANCY MEADE, General Council
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Presented information related to SB 108.
EDRA MORLEDGE, Staff
Senator Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented changes in version Y of SB 128 on
behalf of the sponsor.
KATHLEEN STRASBAUGH, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions related to SB 128.
ANNE CARPENETTI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions related to SB 128.
HANS RODVIK, Intern
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 176 on behalf of the sponsor.
PAT GAMBLE, President
University of Alaska System
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 176.
ACTION NARRATIVE
1:36:58 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:36 p.m. Present at the call to
order were Senators Wielechowski, Dyson, and Chair Coghill.
1:37:59 PM
At ease
1:38:43 PM
CHAIR COGHILL brought the meeting back to order.
SB 108-LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS
1:39:12 PM
CHAIR COGHILL announced that the first order of business would
be SB 108."An Act relating to the confidentiality of certain
records of criminal cases; and providing for an effective date."
SENATOR DYSON related that he had hoped the committee substitute
(CS) would be ready. He said Mr. Kopp would report on the
progress of the CS thus far.
CHUCK KOPP, Staff, Senator Fred Dyson, Alaska State Legislature,
Juneau, Alaska, presented the proposed changes to SB 108.
1. Consider language to treat as confidential the records of
criminal cases disposed of before the effective date of the
Act by acquittal of all charges, dismissal of all charges,
or a combination thereof, and applying to those who
appeared on CourtView.
2. Extend the time limit for a record to become confidential
from 90 days from the date of acquittal, dismissal, or a
combination thereof, to 120 days. This is at the request of
the Department of Law (DOL) in order to match the 120-day
rule.
3. Change the effective date of the Act from July 1, 2014 to
October 1, 2014 to give the court more time to comply.
4. Designate as confidential only those cases that were
dismissed by the prosecuting authority, not by the court in
the furtherance of justice, or for other reasons. He noted
that DOL requested this change, but it's yet to be
resolved. He requested Ms. Meade discuss that issue and
whether or not there can be a confidential carve-out for
state agencies on the database that is otherwise
confidential to the public.
CHAIR COGHILL announced the arrival of Senator McGuire.
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, Anchorage, Alaska, noted that the Court System is
neutral on the bill. She responded to a request to address other
reasons for dismissal, aside from dismissals by the prosecution.
She began by describing reasons a court will dismiss a criminal
case. She said it is not the case that the court dismisses old
criminal cases, except if there is a violation in the speedy
trial rule. The court does dismiss some criminal actions for
reasons that are listed in Rule of Criminal Procedure 43, in
furtherance of justice, mistaken identity, or if probable cause
is not found under Criminal Rule 5.1. Those reasons would be
discussed with the prosecutor and be known by the parties. When
cases are dismissed, the court signs an order making it
official. It would be confusing if cases dismissed by the
prosecution were treated differently than those dismissed by the
court.
MS. MEADE addressed whether a state agency, such as DHSS, can
have access to confidential files on CourtView. She understood
that the request is for public safety reasons. She said there is
not currently a means for doing so. There is a public version of
CourtView and an internal court version. She did not know if it
was possible to allow access to the internal system. It would
take a vast change and would have a cost. She pointed out that
there is a way that prosecutors access confidential cases - by
being cleared through the Alaska Public Safety Information
Network (APSIN.)
1:45:22 PM
CHAIR COGHILL advised that those issues will be dealt with in
the next CS.
SENATOR WIELECHOWSKI asked how hung juries and moving violations
are treated in the bill.
MS. MEADE explained that minor traffic offenses would not be
covered because the bill addresses criminal cases. She
understood that hung juries have 120 days to be retried, and if
the case is retried and it is again a hung jury, the person is
not found guilty. That situation would be covered under the
bill.
CHAIR COGHILL said it is a balance between the right of people
to know for public safety reasons and the right of people to be
protected from a bad reputation.
1:46:55 PM
SENATOR MCGUIRE asked how the bill could be changed to address
the case where a person was arrested on suspicion of
intoxication.
SENATOR DYSON said that discussion would be held later.
CHAIR COGHILL said SB 108 would be revisited on Wednesday.
SENATOR MCGUIRE asked if it would be included in the new CS.
SENATOR DYSON said he believes that Ms. Meade addressed what was
contained in the CS so far.
SENATOR MCGUIRE said she understood that the topic was not
covered in the CS for SB 108, which allows for arrest and
charging documents, but only if they have had a dismissal or an
acquittal. In the case she was concerned with, there was no
charge but the arrest remains on record.
CHAIR COGHILL noted there was a lengthy discussion on this topic
at the last committee meeting.
MR. KOPP pointed out that the court is addressing that situation
currently, so that charges that are not filed by the prosecutor
will be addressed. Therefore, it is not in the bill.
CHAIR COGHILL held SB 108 in committee.
SB 128-ELECTRONIC BULLYING
1:48:56 PM
CHAIR COGHILL announced that the next order of business would be
SB 128."An Act relating to the crime of harassment."
SENATOR MCGUIRE moved to adopt the CS for SB 128, labeled 28-
LS1001\Y, as the working document.
CHAIR COGHILL objected.
1:50:12 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, Alaska State
Legislature, Juneau, Alaska, presented changes in Version Y of
SB 128 on behalf of the sponsor. She described changes to the
bill since the last hearing on February 19 to ensure clarity and
to prevent overlapping of statutes. There are three
circumstances that would cause electronic harassment to become a
crime: it causes severe mental or emotional injury, it places a
person in fear of significant damage to the person's property,
or it places a person in reasonable fear of physical injury. She
said the sponsor has worked with the Department of Law, the
Public Defender's Office, and Legal Services to develop the
latest version of the bill. The sponsor believes it accomplishes
some of the issues raised at the first meeting.
CHAIR COGHILL summarized the changes. He inquired if there were
other changes.
MS. MORLEDGE noted that the quantifying language "reasonable
fear" and "significant damage" was added because the original
version was quite broad.
CHAIR COGHILL questioned why it said "fear of significant
damage."
MS. MORLEDGE explained that the Department of Law brought it to
the sponsor's attention that there are overlapping property
crime statutes that carry different penalties and this provision
contains a class B misdemeanor penalty.
CHAIR COGHILL asked if it stays within the class B misdemeanor
category.
MS. MORLEDGE said yes.
1:53:41 PM
SENATOR DYSON said he is troubled by the inherent subjectivity
of the damage to the victim.
CHAIR COGHILL suggested Legislative Legal could address that
issue.
SENATOR DYSON asked if age and disabilities were considered when
drafting the bill.
SENATOR MEYER replied they were part of the discussion. He
pointed out that cyberbullying impacts children of all ages and
capabilities. The bill focuses on children under 18. Research
shows an increase in youth suicide as a result of cyberbullying.
He thought people with intellectual disabilities had additional
protections.
MS. MORELY added that the sponsor felt it was a policy call as
to which groups to include. The intention of the bill is to
protect school-age children because of the amount of bullying
that already occurs. This would add cyberbullying to that
category. She noted the sponsor is amenable to adding other
groups.
SENATOR DYSON agreed the issue might already be addressed
elsewhere.
SENATOR MCGUIRE questioned the "mental intent" on page 1. She
noted that the guiding statute is already there under AS
11.61.120 and says they commit the crime of harassment with the
intent to harass or annoy another person. She asked if it was
"intentional and not reckless."
MS. MORELY said it is intentional.
SENATOR MCGUIRE stated kids are often reckless.
1:57:56 PM
SENATOR MCGUIRE inquired about the standard on page 2, lines 4-
6, when looking at the person receiving the communication. She
wondered if the standard was "a reasonable person similarly
situated." She questioned if the test is how someone of a
similar age would feel if they were teased, taunted, or
insulted.
MS. MORELY said that is the intent.
SENATOR MCGUIRE asked for a legal interpretation of whether
mental intent is "intentional, not reckless," and that the
standard by which the victim is judging is a "reasonable person
similarly situated." She also questioned, on line 10, what
"significant damage" and "person's property" mean.
MS. MORELY relayed that in the first version of the bill, the
language read "damage to the person's property." After working
with the Department of Law, Legal Services, and the Office of
the Public Defender, it was agreed that placing "significant" in
the language would raise the bar high enough.
SENATOR MCGUIRE thought it was important to have a legal opinion
on the record.
2:00:27 PM
SENATOR MEYER suggested the Department of Law answer. He pointed
out that a lot of the issues are addressed in the anti-bullying
and harassment bills. This bill now includes cyberbullying.
SENATOR MCGUIRE agreed. She maintained with electronic
communication there is more room to accidentally hurt someone.
SENATOR WIELECHOWSKI asked if there is a difference between
cyber, written, and spoken bullying and requested a comment
about the policy call.
SENATOR MEYER gave examples of social media sites that could be
broadcast worldwide, creating a much more detrimental result
than spoken bullying.
CHAIR COGHILL noted on page 1, the provocation could be written
or verbal. He asked how physical contact comes into play.
2:03:40 PM
SENATOR WIELECHOWSKI thought the bill created two different
standards. He posed an example if someone would insult another
person resulting in an immediate violent response, then it would
be covered under AS 11.61.120(a)(1). But if the person just
causes emotional injury, it would not be a crime. On the other
hand, if the insult was via an email, it would be a crime.
He asked if sending an electronic communication applies to
Facebook and Twitter, or if the post or message must be sent
directly to the person.
MS. MORELY related that Legislative Legal Services agreed that
the posting to Facebook or to a blog is "sending" so the message
does not have to be sent directly to a person.
2:05:26 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, stated that "send to
a person" is sufficient to cover posting on a social media site
where others might see it.
SENATOR WIELECHOWSKI asked whether posting something insulting
and intimidating on one's own Facebook page would be violating
the law.
MS. STRASBAUGH said it depends on the public nature of the site.
She gave an example of a small group of high school students who
know that all a person's friends will see the post; there would
be a problem.
SENATOR WIELECHOWSKI gave an example of someone who sends an
email to a friend who forwards it on to someone under 18 who is
insulted by the email.
MS. STRASBAUGH said it depends on the intention of the sender.
SENATOR WIELECHOWSKI inquired if there are any equal protection
issues or other issues regarding treating electronic
communications differently than letters or in-person
communications.
MS. STRASBAUGH opined that the communications are all of a
certain type, insulting and provocative in a manner extreme
enough to be criminalized. The consequence would be a
misdemeanor with a maximum penalty of 90 days and a fine. There
are a number of different offenses under that statute at the
same penalty level that have similar components, such as direct
contact and anonymous obscene phone calls. The legislature can
make a policy determination that those communications are
equivalent for the purposes of the statute.
2:08:38 PM
SENATOR WIELECHOWSKI recalled that the U.S. Supreme Court has
allowed heinous communications to be considered free speech. He
inquired if the Court might find that the bill oversteps First
Amendment rights.
MS. STRASBAUGH said if intent is to harass or annoy, it would
depend on who the person is and what the circumstances are. The
court seems to make its decision on a case-by-case basis.
SENATOR WIELECHOWSKI gave an example of an email saying someone
was a terrible football player and it causing emotional injury.
He wondered how the court would look at that.
MS. STRASBAUGH said she didn't know.
SENATOR WIELECHOWSKI asked about significant damage to property
and used a pencil as an example.
MS. STRASBAUGH noted duplication in the Y version. On page 7,
"causes fear of significant damage to a person's property" can
be stricken because it is contained elsewhere in the bill. She
deferred to the sponsor to explain the intention with respect to
property.
CHAIR COGHILL suggested hearing from the Department of Law.
2:12:43 PM
ANNE CARPENETTI, Assistant Attorney General, Criminal Division,
Legislative Services Section, Department of Law, Juneau, Alaska,
pointed out that in the Y version, under 18 years of age only
pertains to conduct that causes severe mental or emotional
injury, not significant damage to a person's property. She
thanked the sponsor for including fear of damage to property.
She gave a hypothetical example of how electronic communication
might cause fear of damage to property. She said the
department's concern is that it overlaps with criminal mischief,
which defines damage to property similar to theft with monetary
levels. She suggested treating fear of significant damage in SB
128 the same way. It is currently listed as a class B
misdemeanor in SB 128.
SENATOR MCGUIRE said she likes the bill. She asked if the
language under Section 1 subsection (a) is good enough to charge
someone as it stands now, or if it needs clarification regarding
electronic communication. She worried the bill creates a
separate standard. She implied that the bill makes it harder for
the person who is receiving the electronic communication. She
objected to a list that might change.
2:17:35 PM
MS. CARPENETTI offered to help clarify the intent of the bill.
She explained that the difference in subsection (a)(1) for
harassment is that it is an immediate violent response. The
proposal of electronic communication does not require the
immediacy of a response.
SENATOR WIELECHOWSKI reiterated his questions about sending an
electronic communication via Facebook, the degree of significant
damage, and equal protection issues.
MS. CARPENETTI suggested saying "send or post" rather than
"send" an electronic communication. On the second matter, she
explained that the meaning of significant damage to property is
broken down by value under the criminal mischief statute.
Regarding equal protection, she said she would like to think
about it more, but there is reason to justify this provision
because electronic communication gets sent to a lot of people.
The potential to have many people see a post is higher than with
verbal encounters or letters. She opined that equal protection
could be raised.
SENATOR WIELECHOWSKI asked if the intent is person specific.
2:21:07 PM
MS. CARPENETTI said "culpable mental state" means intending to
harass and annoy the victim.
SENATOR DYSON said he could see how property could be damaged by
electronic means for an adult. He inquired what protections are
already in the law for handicapped persons.
CHAIR COGHILL said the sponsor could research that topic. He
asked Senator McGuire to withdraw her motion to adopt the Y
version of SB 128 because of the mistakes and issues with that
version.
2:23:04 PM
SENATOR MCGUIRE withdrew her motion to adopt version Y of SB
128.
SENATOR WIELECHOWSKI recommended a Vanderbilt Law Review article
on the constitutionality of cyberbullying laws. He concluded
that, as currently written, the bill has severe First Amendment
issues.
CHAIR COGHILL said it's an excellent suggestion and then
directed Senator Meyer to work further on the bill.
CHAIR COGHILL held SB 128 in committee.
CHAIR COGHILL postponed hearing SB 171 until another day.
SB 176-REG. OF FIREARMS/KNIVES BY UNIVERSITY
2:25:04 PM
CHAIR COGHILL announced that the final order of business would
be SB 176."An Act relating to the regulation of firearms and
knives by the University of Alaska."
HANS RODVIK, Intern, Senator John Coghill, Alaska State
Legislature, Juneau, Alaska, presented SB 176 on behalf of the
sponsor. He described the genesis of the bill:
I attend the University of Alaska Anchorage, majoring
in political science. The Anchorage campus is the
State of Alaska's largest public university campus.
During the 2013 fall semester a diverse array of
students, including myself, from the College
Republicans, Young Americans for Liberty, and
Political Science Association came together to analyze
what issues these three clubs could join together on
and help change. Being mostly political science
majors, we all had quite the intimate relationship
with the Constitution. Furthermore, as Alaskans, we
understood the long and storied firearm culture our
state has, and the special protections our state
constitution guarantees us, specifically concerning
the right to keep and bear arms. We concluded that the
current situation surrounding firearms on campus was
unacceptable, and committed to change it.
SB 176 was generated by a grass-roots effort by
concerned students who understand individual liberty,
the U.S. and Alaska Constitutions, Alaska statute, and
the rule of law. After getting accepted into the
legislative internship and being placed with Senator
Coghill, I took it upon myself to work on this issue.
I presented the idea of SB 176 to Senator Coghill, to
which he agreed and from there, well, as they say, the
rest is history. With the rest of my time I'll
describe what SB 176 does, why this committee should
support it, and conclude by giving you a forewarning
of the coming arguments.
What does SB 176 do: Most importantly, Senate Bill 176
requires the University of Alaska Board of Regents to
comply with the Alaska Constitution, and Alaska
statute. SB 176 resolves the conflict, posed to law-
abiding citizens, by UA Board of Regents policies and
regulations. Since 1995, the Board of Regents has (via
policy P02.09.020 Possession of Weapons), prohibited
the otherwise lawful (under our constitution and state
law) carrying of concealed handguns. The prohibited
areas include: university property; university offices
or classrooms inside buildings not on university
property; and university sponsored activities or
meetings not on university property. Board of Regents
policy makes an unsubstantiated claim (under our State
Constitution or statute) to have governing power over
the possession of firearms.
University regulation further compounds the problem by
(R02.09.020 Possession of Weapons) prohibiting
firearms from being carried or stored on university
property or in university buildings. University
regulation disarms students living in dorms by forcing
them to hand over their firearms to a university
employee, who then stores their firearm(s) in a
central safe. The abuses of Constitutional rights do
not end there. Students, who have firearms, living in
residential units, must register their firearms with
the university and provide detailed personal
information about themselves to designated university
employees.
At UAF, the police department requires students to
fill out an entire form describing the type of
firearm. This includes providing the serial number to
the UPD. I see as a violation of multiple
Constitutional rights (art 1. Sec.19, art. 1, sec. 22
(right to privacy) and art. 1, sec. 14 (right to be
secure in their property against unreasonable searches
and seizures. University regulation also prohibits
firearms in residential rooms or apartments, and in
any common areas. Lastly, university regulation
prohibits firearms on residential grounds.
In Section 2 (a) the legislature reserves the
authority to regulate firearms and knives to the
state. Unless the legislature specifically designates,
the board of regents may not enforce a policy
regulating the possession, ownership, use, carrying,
registration, storage, or transportation or firearms
or knives. With this section, current board of regent
policy would not be in compliance with statute, and
therefore it would need to be eliminated.
2:30:27 PM
Section 2 (b) does three things: It requires any
policy regulating firearms and knives adopted and
enforced by the board of regents be identical to state
law - most important. Secondly, these polices cannot
deny or infringe the right of the individual
(guaranteed by art. 1, sec 19) to keep and bear arms
in defense of self or others. Lastly, this section
allows the board to have policies that prohibit
firearms in restricted access areas of university
bldgs.
Two key points about the restricted access subsection.
I spoke with the police chiefs at UAA and UAF and both
confirmed that currently there are no restricted
access areas on campus where people are screened,
patted down, etc., meaning free travel throughout both
campuses. Also, we carefully defined what a restricted
access area is. It is a place where an individual
would be screened, which would require a police,
guard, or security personnel and does not include
common areas open to the public, which are all areas
according to the police chiefs.
We are not giving the Board of Regents the authority
to declare the entire university system a restricted
access area. In summary, SB 176 requires the Board of
Regents to come into compliance with our state
constitution and law concerning the regulation of
firearms and knives.
2:31:51 PM
SB 176 codifies UA Regents' policy with current
statute that already allows law-abiding citizens to
carry concealed firearms on campus. The intent of SB
176 is to enable law-abiding citizens to exercise
their fundamental right to keep and bear arms on and
in the grounds of UA campuses.
The committee should support SB 176 for four main
reasons: state constitution, state statute, court
cases and historical understanding of the 2nd
amendment, statistics and facts. Constitutionally
grounds to support SB 176. Second only to the federal
constitution, Alaska's constitution is the highest law
of the land. Our constitution guarantees that the
individual right to keep and bear arm shall not be
denied or infringed by the State or a political
subdivision of the State. Our state constitution
acknowledges the natural right to self-defense, by
guaranteeing the individual right to keep and bear
arms.
Art. 7, Sec. 3 of the Constitution of the State of
Alaska created the board of regents. The regents are
appointed by the governor and subject to a
confirmation vote of the legislature in joint session.
Therefore, the University of Alaska and the board of
regents are political subdivisions of the State of
Alaska. Furthermore, the board of regents is bound (by
the Constitution) to formulate policy in accordance
with state law. There is no provision granting the
board of regent's authority to dismiss, ignore, or
override other parts of the Constitution. There is no
question that the UA board of regents is a govt.
entity, it is a creation of govt., its employees and
managers and paid by the govt., its structures and
activities are determine and governed by state law,
state constitution, the UA system exists only as
authorized by law, perhaps an exact definition of a
government entity.
Furthermore, art 1, sec 14 (searches and seizures) and
art. 1, sec. 22 (right to privacy) both are applicable
to this issue. Firearms are private property and the
university as a political subdivision of the state is
conducting unreasonable searches on students seeking
to store them in their residential units for the
purpose of self-defense. Secondly, when carrying
concealed, individuals are making a personal, private
choice.
2:33:34 PM
Statutory basis: There is no current statute that
prohibits law-abiding adults 21 and over, from
carrying concealed on or in our public universities.
Furthermore, under AS 11.61.190-11.61.220, it is not a
crime to carry on or in the grounds of UA campuses.
Also, under AS 29.35.145, the State of Alaska reserves
the right to regulate firearms and knives, therefore,
the university has no authority to continue their
current practices.
Court rulings and historical understanding of the 2nd
Amendment:
Two recent court cases have dealt precisely with
firearms on public campuses. The Colorado Supreme
Court ruled in Regents of the University of Colorado
v. Students for Concealed Carry on Campus that the
Colorado legislature (through their 2011 concealed
carry act) divested the Board of Regents of its
authority to regulate concealed handgun possession on
campus. The court ruled that "had the legislature
intended [exclude] universities, it knew how to do so"
(which it did not in their concealed carry act).
In Oregon, the State Court of Appeals ruled that the
governing body of the Oregon university system's
policy that prohibited individuals with concealed
weapons permits from carrying concealed on campus was
a violation of statute, and went completely against
the intent of the legislature. Other major court
rulings support the intent of SB 176. What the Board
of Regents is doing, by prohibiting the storage of
firearms in residential units, is similar to what the
District of Columbia used to do. In District of
Columbia v. Heller the U.S. Supreme Court found that
the District's outright ban on handgun possession in
the home amounts to a ban of an entire class of arms,
that Americans overwhelmingly choose for the lawful
purpose of self-defense, violated the Second Amendment
of the U.S. Constitution.
In McDonald v. Chicago the U.S. Supreme Court found
that the 2nd Amendment right to keep and bear arms
applies to the states because of the 14th Amendment's
due process clause. The court also reaffirmed Heller
by acknowledging that Self-defense is a basic right,
recognized by many legal systems from ancient times to
the present, and the Heller Court held that individual
self-defense is "the central component" of the Second
Amendment right. The Court found that this right
applies to handguns because they are "the most
preferred firearm in the nation to 'keep' and use for
protection of one's home and family." It thus
concluded that citizens must be permitted "to use
[handguns] for the core lawful purpose of self-
defense."
The most recent court case Peruta v. County of San
Diego clearly supports the intent of SB 176. This case
was heard in the U.S. 9th District Court of Appeals
and found that a responsible, law-abiding citizen has
a right under the Second Amendment to carry a firearm
in public for self-defense. The Second Amendment,
Heller tells us, secures "the right to 'protect'
[oneself] against both public and private violence,'
thus extending the right in some form to wherever a
person could become exposed to public or private
violence." Also, within Peruta v. County of San Diego
the court cited William Rawle, A View of the
Constitution of the United States of America 126
(2ded. 1829) (observing that the Second Amendment
would not forbid the prohibition of the "carrying of
arms abroad by a single individual, attended with
circumstances giving just reason to fear that he
purposes to make an unlawful use of them").
These significant court rulings acknowledge the 2nd
Amendment guarantees the individual, natural right to
self-defense, through the keeping and bearing of arms.
Historical analysis and understanding of the 2nd
Amendment further recognizes that bearing arms for the
purpose of self-defense is a right not confined to the
home. As noted in Heller, the 2nd Amendment codifies a
pre-existing right- that is self-preservation and
self-defense of his life and property.
2:38:00 PM
Given time constraints for today I will briefly cover
some of the historical understanding of the 2nd
amendment, and how these findings should instruct this
committee to support SB 176. Our greatest President,
George Washington said in his personal letters that
'Firearms stand next in importance to the Constitution
itself. They are the American people's liberty teeth
and keystone under independence ... From the hour the
Pilgrims landed, to the present day, events,
occurrences, and tendencies prove that to insure
peace, security and happiness, the rifle and pistol
are equally indispensable . . . the very atmosphere of
firearms everywhere restrains evil interference - they
deserve a place of honor with all that is good'.
In Wilson v. State of Arkansas (1878) the federal
appeals court ruled that 'To prohibit a citizen from
wearing or carrying a war arm . . . is an unwarranted
restriction upon the constitutional right to keep and
bear arms. If cowardly an dishonorable men sometimes
shoot unarmed men with army pistols or guns, the evil
must be prevented by the penitentiary and gallows, and
not by a general deprivation of constitutional
privilege'. In Cockrum v. State of Texas (1859) the
court ruled that 'The right of a citizen to bear arms,
in lawful defense of himself or the State, is
absolute. He does not derive it from the State
government. It is one of the "high powers" delegate
directly to the citizen, and `is excepted out of the
general powers of government.' A law cannot be passed
to infringe upon or impair it, because [the
Constitution] is above the law, and independent of the
lawmaking power.'
Given these court cases and historical analysis the
Second Amendment recognizes the individual's right to
self-defense; a free person is entitled to defend
themselves from harm or mortal peril. Therefore, Board
of Regents policy and regulations that prohibit the
right to and bear arms are unconstitutional.
2:39:47 PM
Facts and Statistics concerning firearm use and
concealed carry: For clarity, the facts and stats I am
referencing are on BASIS and available to the public.
There are now 41 Right to Carry States, 38 are shall
issue.
Since 1991, when the nation's violent crime rate
peaked, 24 states have adopted shall issue laws,
meanwhile gun laws have become more liberal on the
federal and state level, and private ownership of
firearms has risen by about 100 million guns.
Subsequently, as of 2010 the murder rate has decreased
52% a 47 year low, and the total violent crime rate
has decreased 48% to a 37 year low. Allowing citizens
to carry concealed weapons deters crime. Studying
every county in the US, economist John Lott and David
Muster concluded that violent crime is deterred
because of RTC. When concealed handgun laws went into
effect in a county, murder rates fell by 8.5%, rapes
rates fell by 5% and aggravated assault rates fell by
8%.
In the 1990s criminologist Gary Kleck and Marc Gertz
found that guns were used for self-protection between
21.-2.5 million times annually. A study conducted for
the Justice Department found that 34% of felons had
been scared off, shot, wounded or captured by an armed
victim, the study also found that 40% didn't commit
crimes because they feared victims were armed.
Evidence does not exist showing that gun control laws
reduce crime. Using Kleck's numbers, of those 2.5
million times a gun is by law-abiding citizens for
self-defense, less than 8% of the time a citizen kills
or wounds his/her attacker. It is important to note
for Alaska because of our nation leading rape and
sexual abuse rates- as many as 200,000 women use a gun
every year to defend themselves against sexual abuse.
Nationwide over ½ million self-defense uses away from
home- these would be attributed to concealed carry.
Handguns are the weapon of choice. They are used 1.9
million times a year to protect citizens. The courts
have ruled that the police do not have an obligation
to protect individuals; they protect the public in
general. In about 75% of defensive firearm instances,
a shot is never even fired and the threat is evaded
via a defensive display or warning (from Gary Kleck
study). Lott also found that in states adopting shall-
issue carry laws, the incidence of mass murders drops
on the order of 80%. Nearly every shootout between two
armed individuals is over in roughly 10 seconds, mass
shootings can exceed 30 minutes.
There has been a huge success in Florida concerning
RTC and crime rates. Florida has issued the most carry
permits, nearly 2 million, but revoked only 168
(0.008%), due to gun crimes by permit holders. During
the first 15 years of Florida's right to carry, their
murder rate fell 52% during that time period, which
put their rate below the national average.
2:43:12 PM
Warning of Arguments to Come: The committee might hear
that 'Guns on campus will lead to more violent crime.'
However, this is not the case. Since 2006 state law
has allowed licensed individuals to carry concealed
handguns on the campuses of Utah's public
universities. This has also been the case at Colorado
State Univ. and at Blue Ridge Community College in VA,
over 100 semesters have passed and not a single
instance of gun violence (including threats and
suicides) an incident of a person brandishing or
eluding a firearm in a threat- no firearm issues on
these campuses.
The committee might hear that 'guns on campus will
distract from the learning environment.' Again, this
is not the case. The essence of carrying concealed is
to be discrete and avoid attention. Furthermore,
concealed carry does not distract people or increase
crime throughout the rest of Alaska. Campuses are no
more crowded than move theaters, office buildings,
shopping malls and numerous other locations where
concealed carry is already occurring.
The committee might hear that 'because dorms
experience fair amounts of theft the university has an
obligation to ban firearms.' This is a weak argument
and does not necessitate a prior restraint on our
rights. Furthermore, the majority of students living
on dorms or in residential units are not even of the
legal age to possess a concealed firearm. Also, bolt
down safes can be purchased. A study done at the
University of Texas (with over 50,000 students) found
that there would likely be no more than 10 to 20
concealed handgun license holders living on campus.
The emotionally charged argument that we must ban
firearms from campuses to ensure healthy debate so
that arguments don't turn into gun fights is not
backed up by data on crime rates after concealed carry
laws were passed. Law abiding adults exercising their
rights throughout the rest of Alaska are statistically
unlikely to suddenly become emotional and lose their
cool simply because they enter the grounds of a public
university. We have seen no increases in violent crime
from individuals carrying concealed firearms
throughout the rest of Alaska.
For concerns about drug abuse and alcohol on campus-
state law already makes it a crime to possess a
concealed firearm while consuming liquor or consuming
a controlled substance. Furthermore, drinking is more
likely to occur off campus. Allowing firearms on
campus would have no impact on the laws regulating
concealed carry at bars and off-campus parties.
Two last arguments to be wary of. The idea that in an
active shooter scenario the UPD would not be able to
determine who is good guy vs. the bad guy; how does
this necessitate a campus wide ban? What is morally
worse, allowing a mass execution shooting to continue
or give law-abiding adults the means to stop or slow
the killer? Furthermore, there is no evidence to show
that cops have had this problem outside of the
university- most shootings/armed encounters occur one-
on-one and not with police standing by. Most
encounters last 10 seconds and the situation is over
according to a 1997 FBI study; also the rate of carry
of individuals in their 20s is about one half of one
percent.
Finally, the idea that concealed carry cannot occur on
campus because the university has visitors and
students under the age of 18 is a moot point. These
young members of society are always around individuals
who are carrying concealed throughout the rest of
Alaska. Law abiding adults carrying concealed are
responsible and not dangerous throughout the rest of
Alaska. The university's point that somehow these
adults become threatening when stepping onto
university property or in university buildings is
completely baseless in fact and reason.
2:45:25 PM
CHAIR COGHILL thanked Mr. Rodvik.
MR. RODVIK concluded that SB 176 is requiring the Board of
Regents to comply with the state constitution and state law. SB
176 recognizes the individual right to keep and bear arms for
self-defense and the defense of others shall not be denied or
infringed by a political subdivision of the state. SB 176 is
supported by the state constitution, state law, court cases,
historical analysis of the Second Amendment, and data on
firearms and crime. He asked the committee to consider that the
United States is ruled by law and not emotions. SB 176 restores
the rule of law to Alaska.
2:46:58 PM
PAT GAMBLE, President, University of Alaska System, Anchorage,
Alaska, testified in opposition to SB 176. He began by saying he
is not a lawyer and did not want to talk about the Second
Amendment. He provided his extensive history of gun experience
and ownership and as an installation commander in the Air Force,
where he was responsible for the protection of an installation,
which comes into play in this discussion.
2:49:08 PM
PRESIDENT GAMBLE maintained that the issue is not the Second
Amendment and the two categories of people surrounding it, the
collective rights folks and the standard model of folks - two
opposing groups. He recalled some of the history of gun
legislation.
PRESIDENT GAMBLE related that today he would look at the
language in the legislation, state law, how the two come
together, and what effect it has on the university as an
educational institution. He pointed out that states differ in
opinion about gun laws; their reasons and laws differ. He said
it is his intention to focus on what is the right thing for
Alaska. He noted that Alaska's gun laws are a combination of
federal and state laws. The bottom line, in both cases, is that
a person can possess a hand gun at age 18. With parent
permission a person can possess a rifle or shotgun at age 16. A
person can conceal carry at age 21.
PRESIDENT GAMBLE said the bill, as it is written, is not about
concealed carry; the issue is the carrying of weapons. The
university is an educational institution and is concerned with
two things, to take care of students and to educate them. In the
history of the Supreme Court there are limits to where a weapon
can be carried for the good of the public. One exception is K-12
schools.
2:53:50 PM
PRESIDENT GAMBLE questioned whether the bill protects the
university property or the students. He concluded that it was
the students. He brought up the difficulty of protecting
schools. He used the example of proposed legislation banning
cell phones around schools in order to protect kids. He noted
the numbers of K-12 students on campus every day, all year long
- 15,000 to 20,000 total. Students of all ages attend summer
programs and visit college libraries and those colleges are
responsible for protecting those kids. He assumed that the
university is going to be responsible for ensuring the safety of
those kids if the bill passes.
PRESIDENT GAMBLE read from the bill: "The Second Amendment may
not be abridged by the Board of Regents except as provided by
statute" He said he didn't have an argument with not abridging
Second Amendment rights, but that there may be a constitutional
issue with the exception.
With regard to the Board of Regents ability to adopt and enforce
policies, he said guns currently are allowed on campus, but they
must be locked in a car. If someone has a gun on campus, they
are instructed to lock it up. When this law is passed, the
university will no longer be able to tell a student to lock up a
gun, even if they are distraught or drunk. Until they commit a
crime, the university cannot act. That is a problem, he said.
2:58:19 PM
PRESIDENT GAMBLE said the Alaska Constitution, in Article I,
Section 19, guarantees the right of the individual to bear arms
in defense of self and others. He said he can find no mention of
"others" in the U.S. Constitution. That suggests that a person
has the option to decide when it is ok to use a weapon to help
someone else. The Stand Your Ground Law, when coupled with self-
defense, is one type of scenario. The Stand Your Ground Law and
deciding to go help others is another matter and needs
clarification.
2:59:41 PM
MR. GAMBLE said the last point in the bill refers to firearms,
not concealed carry, which allows for all types of firearms
everywhere on campus. He noted the bill defines restricted
access as not including common areas of ingress or egress open
to the public. He pointed out that K-12 students are everywhere
on campus in the summer. He questioned how to protect those
students in the 16 campuses. He called it a huge undertaking. He
said he would hire a company to provide protection and he would
provide a fiscal note to that effect - a large fiscal note. He
stressed that it is a problem to claim that he can protect the
campus. He said the solution is to kick the K-12 students off
the campus and only have to worry about the professors and the
college students.
3:02:34 PM
PRESIDENT GAMBEL concluded that state law protects K-12 students
in their schools. He questioned whether K-12 students should be
protected when they are on a university campus. He said the
answer is yes.
3:03:02 PM
CHAIR COGHILL summarized that there is a practical problem, and
a need for legal questions to be resolved, as well as the K-12
student issue to address. He said any time there is a
constitutional question, it warrants a discussion. He thanked
President Gamble for his testimony.
CHAIR COGHILL held SB 176 in committee.
3:04:47 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
at 3:04 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Legislative Legal Opinion.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Sectional Analysis.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Written Testimony .zip |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Supporting Documents.zip |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| Sponsor Statement.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 176 |
| SB 128 CS Version O Summary of Changes.pdf |
SJUD 3/3/2014 1:30:00 PM |
SB 128 |