SSHB 33 - ARRESTS BY PRIVATE PERSONS CHAIRMAN KOTT announced the next order of business is Sponsor Substitute for House Bill No. 33, "An Act relating to bounty hunters and to capturing criminal suspects or fugitives." CHAIRMAN KOTT called on Representative Fred Dyson, sponsor of the bill. Number 2035 REPRESENTATIVE FRED DYSON, Alaska State Legislature, came before the committee as sponsor of SSHB 33. He referred to a federal law back in the 1800s and some federal decisions that allowed for bounty hunters. This bill was prompted by the unfortunate experience when two or three gentlemen under contract, broke into a home in the Kenai area wearing black outfits and brandishing weapons, took a person out at gunpoint, and handcuffed him. There was quite a bit of concern. The public safety officers are concerned also for the people who are contracting to provide this service, particularly in the areas of Alaska where people take exception to having their homes broken into in the middle of the night and are prepared and equipped to resist those efforts. The first draft just forced the bounty hunters to register with the local law enforcement. The public safety officers asked them to just prohibit it. The public safety officers pick up any felony warrants as soon as they know about them. Any other jurisdiction, as in Canada or other countries, where they are willing to extradite, the public safety officers are willing to go out and get them. The public safety officers don't want people who are ducking warrants in other states or areas to be running around. REPRESENTATIVE DYSON further stated he is concerned about the well-being of the Alaskan citizen who is in custody of some non-sworn folks, and how they are going to be treated. He also wonders how the neighbors are supposed to respond to somebody getting rousted in the middle of the night at gunpoint. It is an area that needs to be addressed. Number 2289 REPRESENTATIVE JAMES asked whether this bill just eliminates bounty hunters or does it eliminate citizen's arrest. REPRESENTATIVE DYSON replied that it not their intention to do anything about citizen's arrest. Citizen's arrests are allowed. REPRESENTATIVE CROFT asked what was the law before Section 1. TAPE 99-44, SIDE A Number 0001 REPRESENTATIVE DYSON said, "...for a crime you didn't witness without a warrant. The only exception to that has been this old federal decision that empowered bounty hunters in essence do it on contract. If the person employing them had a warrant or they themselves or they could contract for folks to go get them. The law expects you to call the police and report, but they would choose to have you as a verifying witness not an enthusiastic participant." Number 0090 REPRESENTATIVE MURKOWSKI asked whether there is anything on the state books now that regulates bounty hunters. REPRESENTATIVE DYSON said that it is his understanding that there is not. Number 0136 REPRESENTATIVE MURKOWSKI asked whether there is anything in federal statute that could be used within the individual states that would give some guidance or direction. REPRESENTATIVE DYSON didn't know the answer. Whenever this has come up, it always goes back to the case in 1867 or 1878 in a federal court where the decision authorized it. Several states are moving towards regulating it. Number 0222 DAVID HUDSON, First Sergeant, Division of Alaska State Troopers, Department of Public Safety, testified via teleconference from Anchorage. In regard to the situation in the Kenai area recently, they support this bill. By placing the onus of arrest on peace officers in a majority of situations in eliminating the private persons arrest in crimes not committed or attempted the presence of the person making the arrest, they hope to eliminate some of the problems which they have seen regarding bounty hunting. National news has been responsive to these issues of bounty hunters across the nation, and there is national bounty hunters association where anybody, under federal statutes dating back to the 1800s, can go into another state, or they have no limits to what they can do in regards to making arrests under the federal statutes of someone who has absconded from a bail or bondsman or something of that nature. It is a way of the bail bondsman not losing his/her money when they put up the funds to have a person released in their community. They will lose those funds if the person is not brought back before the court in a specific time. That is what the impetus is for bounty hunters. There are no particular statutes or licensing requirements for bounty hunters in the state of Alaska. He doesn't know of any in other states either. They are in support of the bill and believe it will preclude situations like the previous one. REPRESENTATIVE GREEN asked Sergeant Hudson how many arrests have been made by bounty hunters roughly per year, or per decade. SERGEANT HUDSON can think of several in his personal experience, however he has no statistical documentation to provide today to answer that. REPRESENTATIVE GREEN asked whether this is not an uncommon thing to have people being arrested by someone coming in as a bounty hunter. SERGEANT HUDSON said he is aware of a situation approximately a year ago in Homer that there was a person in that area, or believed to be in that area, for whom bounty hunters came after. When they were unable to locate that individual on their own, they did contact the Alaska State Troopers. The troopers then verified that there was a warrant for the individual, and they went out, located and arrested him. He felt that if the bounty hunters had been able to find the person in a timely manner, they would have made the arrest and would have removed the individual from the state and the troopers probably would have never known about it. As it is now, they would probably not know about these arrests if they happened smoothly, and the law enforcement wasn't called in as it was in the Soldotna case. REPRESENTATIVE GREEN asked whether Sergeant Hudson has any idea of how much mischief has been caused by either false arrests or the Kenai area situation. SERGEANT HUDSON agreed the scenario in the Kenai area could have played out extremely different than what it had. If he remembers correctly, the individual was seized from the father's home, and the father then took a gun and went looking for the bounty hunters. There were numerous law enforcement officers who were called to the scene into areas looking for them for the potential home invasion, which it sounded like when the call was made for help on 911. There is no doubt in anybody's mind that the situation could have turned out extremely different; however, in that case no one was injured. Number 0604 REPRESENTATIVE JAMES asked how there wouldn't also be a charge against these folks for unlawful use of deadly force. SERGEANT HUDSON replied that these individuals were charged with assault under Alaska statutes. He is not familiar with what the status is of the current case. REPRESENTATIVE DYSON told Representative James that the court case is going on this week. He asked Sergeant Hudson if he thinks that the bail bonds industry will almost disappear if the bill does pass. SERGEANT HUDSON finds that hard to believe. People are entitled to bail under the constitution so he suspects that they will continue to operate no matter how this law changes. REPRESENTATIVE DYSON asked what the remedy will be if someone jumps bails or fails to appear on a misdemeanor. SERGEANT HUDSON answered that if a person fails to respond to court, the judge would then issue a bench warrant for that person and they would eventually be arrested through the normal arrest system. He is unfamiliar with the statutes in regard to bail bondsmen if a subject doesn't show up to court on Monday, but is subsequently arrested and taken in front of a magistrate or judge on Tuesday that is of the bail bondsman's fees would be, so he can't answer that. REPRESENTATIVE DYSON commented that bail bondsmen are very inventive and they will find a way to look after their own interests. Number 0772 REPRESENTATIVE CROFT commented that he is still trying to understand the current law, AS 12.25.030, as to his ability to make a citizen's arrest. He interprets that he could under part (a) under three situations: if the crime was committed in his presence, if he is right about who did it, and if it is a felony even though it was not committed in his presence, or if he is right about a felony having been committed, and he has reasonable cause for believing that the person he goes out and grabs did it. SERGEANT HUDSON indicated that Representative Croft's interpretation is similar to what he also sees when he reads this statute. Currently under AS 12.25.030 under parts (2) and (3), it allows citizens of the state of Alaska to make an arrest, as a law enforcement officer could, for a felony either committed or not committed in their presence or with reasonable suspicion or cause. Whereas under the amendment that is before them under 12.25.025 which would be in Section 1, lines 6-8, a private person would now be eliminated from making a felony arrest for a crime committed not in their presence. REPRESENTATIVE CROFT asked whether Sections 2 and 3, not including bounty hunters, have been problematic for the state troopers. He asked whether they have a lot of vengeance arrests and some that have been wrong. SERGEANT HUDSON answered that he is not aware of any specific problems across the state where a citizen has made a felony arrest, and it has been an issue. He doesn't have any statistical information to offer, just his own personal experience. Number 0954 REPRESENTATIVE GREEN asked Sergeant Hudson if he is familiar with the article where Dean Guaneli, Chief Assistant Attorney General, was quoted about untrained people getting liquored up and kicking in the wrong doors. He asked whether all bounty hunters are licensed to carry concealed weapons. SERGEANT HUDSON answered as far as carrying concealed weapons under the Alaska concealed handgun permit program, there is no formal carrying concealed weapons for bounty hunters or any other individuals specifically other than the citizens of the state of Alaska meeting the criteria as so deemed. There are not any statutes or laws or licensing in regards to allowing any particular business, such as a bounty hunter, to carry a concealed weapon. Even in their security guard licensing program, they are required to be working for their company, and the weapons are not concealed. The weapons are exposed, and they wear a uniform and identification from their company. He is not aware of any specifics in regard to bounty hunters being legally authorized in the state of Alaska carrying concealed weapons. REPRESENTATIVE GREEN are these people uniformed and showing weapons when they go after these bond jumpers. SERGEANT HUDSON said in his limited experience with people who profess to be bounty hunters, they put on what they call a uniform, put a sign on their back saying that they are bounty hunters or call themselves whatever they choose to call and wear sidearms and go about their business. In our state, if they are not carrying a concealed weapon, if they are carrying a firearm exposed, that is not against the law unless they are a felon, or there is a municipal code against that so they can wear some type of identifying marks as long as they were not impersonating a public officer, they wouldn't be breaking the law. REPRESENTATIVE JAMES said she doesn't understand, under existing laws, that private persons may arrest a person without a warrant. That means they have to convince them that they are arrested. She doesn't believe they can pull their sidearm without violating the unlawful use of deadly force, unless that person is threatening them in some way. She can't imagine anybody arresting somebody without some power to overcome them, either physically or with a gun, and it seems like the law is clear that they can't do that unless their life is being threatened. She asked Sergeant Hudson to respond to that. SERGEANT HUDSON said he didn't understand exactly what she is asking, other than the fact that he believes the law allows during the making of an arrest, to utilize reasonable force. If they could legally make an arrest, then they could use whatever would be the justifiable minimum force. He assumes that if a bounty hunter or citizen had a legitimate reason to make an arrest, then they could utilize a level of justifiable force up to the level needed to make that arrest. It is not appropriate for a citizen or a law enforcement officer to start waving firearms around and assaulting people, even during an arrest, unless that level of force is justified. REPRESENTATIVE JAMES mentioned a case where someone was up on a ladder trying to steal something, and the homeowner took away the ladder and held the person at gunpoint until the police came. SERGEANT HUDSON said it is not uncommon in Alaska for the citizens to apprehend individuals burglarizing their homes or stealing their property and utilizing such methods. Number 1348 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, appreciates the bill and is not making a position on it. The majority of the bounty hunters going after these people have a contract. They have been bailed out for serious crimes, hardcore felony crimes. They actually go in, they have been taken into custody, and they bond out. They sign a contract that basically says if I'm not showing up for these things you have the right to go into my house, the people that come in and sign for them actually say you can come into my house to find him if you need to if he doesn't show up. By that contract it is spelled out, we have been doing a bail type system since the country's inception. All of them are those types of contracts and then the bounty hunters actually are attached to or are employees to for the companies that do the bailing. You have a contract down and say I promise to pay you guys 10 percent of this or x amount, we're going to bail you out at ten percent of this and you are going to show up for every single one of your hearings and if you don't, we are going to chase you down. Officer Hudson did talk about cross-jurisdictional boundaries. They are basically enforcing a contract and the situations do get sticky. If he can argue on behalf of Representative Dyson, there was an occurrence in Arizona where someone actually kicked down the wrong door and there was killing that occurred. They killed innocent people. So accidents do occur. However, by enacting this bill they are going to making substantial inroads into the bail system. It is by contract that they do these things for the most part. He doesn't know any posses that say "Hey, let's go find us some felons and make some arrests because we can under an 1800s statutes." It is a contractual basis, a bail bonding basis and one concern is the misdemeanors. Police officers perhaps won't have the time, the energy, the gumption, practically speaking, if they force the policeman to go out and execute warrants, even if these folks are bailed out on misdemeanor charges, practically is just might not happen. He spoke to Representative Dyson for amendments to placing a registration in regard to bounty hunters, getting into their background, history and ensuring that they are not psychopaths, and the second thing is for any felony warrants that they are actually executing that they contact local law enforcement, that they make it mandatory by statute, as to the time, whether they are under contract to go into that house, to ensure that the contract is being complied with on both ends and/or to ask for backup or have the police do it on the more serious felony levels. REPRESENTATIVE GREEN asked whether Mr. Winchell was saying if this is passed that the cost of bail bonding will go up or that there will be people who will no longer serve as bail bondsmen. MR. WINCHELL answered no. He said under Washington's system, the courts themselves can offer bonding arrangements so it can be incorporated back into the court, and perhaps that is the flavor of where the law is going. They want the courts to do it and not private individuals. He was only suggesting that if they can't private bounty hunters for bail bonding agents under contract and if they require policemen in general to do it, they might have bail bonding agencies that are not willing to bond out on the smaller measures because they know they are going to fly and perhaps law enforcement can get to it. They have more pressing issues. There will be a burden on that. There is a contract involved; they know if they skip or run that someone will chase them. REPRESENTATIVE GREEN asked, if the bounty hunters were to register, would that go so far down the road that they might as well allow the peace officer to go get them rather than the bounty hunter. MR. WINCHELL answered yes they have taken the felonies and placed them into the police officer's arms and notable so in the case of felonies. REPRESENTATIVE MURKOWSKI asked Mr. Winchell if Washington had a registration for bounty hunters. MR. WINCHELL said he was associated with one of the bail bonding agencies and they would go after unclassified. Whether they were registered or not, he didn't have to put that within the purview. He linked on as an associate. He was not registered, but he doesn't know if they were or not. On the weapon's issue, he does have a concealed weapon in Washington and can carry it. Number 1747 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage saying they support the legislation. It is better to leave this type of thing to professional law enforcement people. He wonders whether the statute conditions of release on the amendment should be AS 12.30.020 rather than AS 12.30.030. He had a question on the type of force allowed in making arrest or terminating his case, that is found in the justification statutes AS 11.81.390. It is important to note that they can use non-deadly force in making arrests that have occurred in their presence, but deadly force should only be used where there is a felony against the person or involving use of force against the person involving a firearm. There have been cases of someone making a citizen's arrest on minor vandalism and being charged with assault in that situation and not have a justification defense. CHAIRMAN KOTT noted that they do have an amendment to replace AS 12.30.030 with AS 12.30.020. MR. McCUNE wondered if the words "conditions of release" referred to the conditions of release that are set by the judicial officer and those are usually in AS 12.30.020. MS. TORKELSON told them that Legislative Legal and Research Services explained to her that the portion on page 4, line 7, that is taken out 12.25.030(b), they moved (b) to (a), therefore it should read 12.25.030. It was a typographical error. Number 1990 REPRESENTATIVE JAMES made a motion to adopt Amendment 1, which reads as follows: Page 4, following line 7: Insert a new bill section to read: "* Section 3. AS 12.70.130 is amended to read: Sec. 12.70.130. Arrest without warrant. The arrest of a person may also be lawfully made by a peace officer [OR A PRIVATE PERSON] without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year, When [,but when] arrested, the accused must be taken before a judge or magistrate without unnecessary delay and, in any event, within 24 hours after arrest, including Sundays and holidays. A [, AND] complaint shall be made against the accused under oath setting out the ground for the arrest as in AS 12.70.120. Thereafter, the answer of the accused shall be heard as if the accused had been arrested on a warrant." REPRESENTATIVE GREEN objected for discussion purposes. He noted that the amendment says Section 3, and he believes it should be Section 6. CHAIRMAN KOTT agreed that it should read Section 6. With that change noted, he asked whether there was any objection. There being none, Amendment 1 was so adopted. Number 2024 REPRESENTATIVE JAMES made a motion to move Amendment 2, which reads as follows: Page 4, Line 7 Delete "AS 12.30.030" Add "AS 12.25.030" CHAIRMAN KOTT asked whether there is any objection. There being none, Amendment 2 was so adopted. Number 2042 REPRESENTATIVE CROFT said they have dealt with the bounty hunter issue to his satisfaction, but he is still struggling with the change in the authority of a private person to do something. He noted that it is a fairly significant change in the law that a private person cannot arrest somebody who committed a felony unless it was done in his presence. For example, somebody breaks into his house, he gets home and the person is outside on the street, his wife says "That is the one," and now he is limited to calling the police. It may be what they want to do, but he would like more discussion on that issue. REPRESENTATIVE DYSON responded to Representative Croft that his wife could make the arrest with his assistance. As long as somebody who witnessed the crime was there, he/she is the one technically making the arrest. They don't want people without any knowledge of the crime doing it. REPRESENTATIVE JAMES made a motion to move SSHB 33, Version 1-LSO240\D, as amended, from the committee with individual recommendations and the attached zero fiscal note(s). There being no objection, CSSSHB 33(JUD) was so moved from the House Judiciary Standing Committee.