HB 381 - SELF DEFENSE  1:17:12 PM CHAIR RAMRAS announced that the next order of business would be HOUSE BILL NO. 381, "An Act relating to self defense." 1:17:55 PM REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, sponsor, explained that HB 381 came about because of a concern from the National Rifle Association (NRA) that some of Alaska's laws may not protect Alaskans' rights. He offered his understanding that the Department of Law (DOL) has suggestions as to areas of the law needing to be reviewed. He requested that the legislation not be moved today in order that all involved can craft appropriate legislation. 1:20:21 PM JIM ELLIS, Staff, Representative Mark Neuman, Alaska State Legislature, on behalf of the sponsor, Representative Neuman, explained that the sponsor had received some concern from constituents and the NRA with regard to existing state law that specifies an individual has a duty to retreat when he/she knows it can be achieved with complete personal safety to the individual and others. The concern, he specified, is that an individual who is under the severe stress of a self-defense situation has to make a decision as to how a court or jury [would view their actions of self defense]. The sponsor views the aforementioned as an undue burden on a law-abiding citizen and believes the best way to address the situation is the proposed provision specifying that the individual doesn't have a duty to retreat, which would also serve as a deterrent to criminals. There are guidelines, he noted, in terms of the crimes [to which the provision applies]. The sponsor feels that Alaskans have used the current law responsibly and expansion of it should be considered. Mr. Ellis explained that the legislation also intends to extend that an individual doesn't have a duty to retreat when an individual uses deadly force in the burglary of his/her home, but there would need to be proof that the use of force was reasonable. This would also be the case with carjacking of an occupied vehicle. He acknowledged that the legislation may need to be amended to better reflect the aforementioned intent. 1:24:55 PM REPRESENTATIVE NEUMAN added that he wants to clarify that if an individual arrives at his/her home or awakes at his/her home to another individual in the home, the individual [homeowner] should be able to assume that individual could cause harm to the individual or his or her family. The individual should have the full rights to protect oneself as deemed necessary. He reminded the committee of the situation in which a church in Big Lake had been robbed multiple times. The church had alarms and motion sensors that [alerted] the minister [of a potential robbery]. The minister, pistol in hand, went to the church and encountered the armed perpetrators who he shot. The minister went to court to defend his actions. Representative Neuman opined that Alaskans should have the right to protect themselves and their family without having to rely on a jury to determine whether the individual could've escaped or fled the area. 1:27:15 PM REPRESENTATIVE LYNN surmised that under HB 381 he wouldn't have to be in fear of his life or that of anyone else in the home in order to use deadly force against an individual who has invaded his home. REPRESENTATIVE NEUMAN said if he found someone in his home, he would assume that the intruder was going to cause harm to himself or his family. [Alaskans] should be able to protect their homes and properties. REPRESENTATIVE LYNN asked whether he would have to meet the "fear" requirement prior to using deadly force. Representative Lynn recounted a situation in which he was attending a potluck, during which he went to his car to retrieve something. Upon returning to the potluck, he inadvertently entered the wrong house. In that situation, he asked whether the individual in the wrong house could have used deadly force, under HB 381. MR. ELLIS clarified that his understanding is that HB 381 would apply in the case of burglary, which entails "breaking and entry." He related his further understanding that if the door is open, it would be a different case. REPRESENTATIVE LYNN expressed the need to address the aforementioned [situation]. 1:29:58 PM REPRESENTATIVE GATTO posed a situation in which a homeowner sleeping upstairs hears a noise downstairs. The homeowner retrieves his/her gun and proceeds downstairs to investigate. At the instant the burglar sees the homeowner, the burglar exits the home at which time the homeowner shoots the burglar in the back. He asked if the aforementioned action would be justifiable. [Chair Ramras passed the gavel to Vice Chair Dahlstrom.] 1:30:43 PM MR. ELLIS answered, "Our intent is not necessarily that if they're fleeing, escaping you, ... but we do not want to necessarily second judge the actions of a person within their own home." He noted that in the dark of night it may not always be clear whether an intruder is fleeing or reaching for a weapon. REPRESENTATIVE GATTO remarked that he foresaw many special cases. He questioned whether a vehicle, a public park, a sidewalk, or any other place an individual has a right to be would be considered an extension of an individual's home. He related that he is uncomfortable with allowing it to be sufficient for an individual who feels threatened in a place he/she has a right to be to shoot. He opined that there are unintended consequences to this extension [or rights]. He asked if it's not intending to harm others in the process of an individual protecting himself/herself could be used as a defense. [Vice Chair Dahlstrom returned the gavel to Chair Ramras.] 1:33:26 PM REPRESENTATIVE NEUMAN replied that the aforementioned isn't a defense and the legislation doesn't try to make it a defense. The legislation merely attempts to provide more clarity on this issue. He again relayed that DOL has indicated there is room for improvement with this legislation. CHAIR RAMRAS reminded the committee that the sponsor wants to bring forward the legislation for discussion regarding how to improve it. 1:34:57 PM REPRESENTATIVE GRUENBERG referred to page 2, line 27, and suggested that the language be reviewed because he said he has never viewed language specifying that a type of evidence doesn't apply. He further suggested that it's possibly a typographical error. MR. ELLIS agreed to research that point further. 1:36:07 PM BRIAN JUDY, Alaska Liaison, National Rifle Association (NRA), characterized HB 381 as simple legislation that provides protection and assurance that an individual doesn't have to retreat when he/she is lawfully in a place and feels threatened. Existing Alaska law already specifies that an individual has no duty to retreat if an individual is "on premises which the person owns or where the person resides or in a building where the person works." From NRA's perspective, the primary component of HB 381 would extend that no duty to retreat to the individual's vehicle as well as any place where an individual has a legal right to be. Mr. Judy pointed out that under the proposed language of HB 381, in a situation in which an individual is walking down the street and a rapist tries to drag the individual in the alley or a kidnapper tries to drag an individual into his/her car, the individual has no duty to retreat. Furthermore, if the individual so chooses, he/she can fight back with force. He characterized the aforementioned as common sense. Mr. Judy emphasized that law-abiding citizens shouldn't fear criminal prosecution when he/she stands his/her ground and defends himself/herself when at a place he/she has a legal right to be. In conclusion, Mr. Judy urged support for HB 381. CHAIR RAMRAS noted that the committee packet includes a compelling letter from DOL regarding concerns with HB 381. 1:40:01 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, apologized for the late delivery of the letter and fiscal note. Ms. Carpeneti related that DOL is confused and concerned about HB 381, which DOL reads as contributing to violence in Alaska. Under current law, an individual only has the duty to retreat if the individual knows that he/she can retreat with complete safety to the individual and others. In response to Chair Ramras, Ms. Carpeneti said that she doesn't understand the problem being addressed by HB 381. She characterized the state's existing self-defense law as fairly strong. She pointed out that individuals don't have to retreat in a number of places, including one's home, vehicle, and place of business. However, if the law is changed to every place an individual has a right to be, then it's every place unless an individual is trespassing or burglarizing a place. She expressed concern about removing the duty to retreat under those circumstances. MS. CARPENENTI opined that Section 2, the prima facie evidence provisions, would encourage vigilantism because there is no time limit. For instance, an individual could use deadly force two hours after an individual burglarized his/her house rather than call the police. After discussions with the sponsor's staff, Ms. Carpeneti surmised that wasn't the intention. The department is also concerned by the arrest provisions because those provisions mean that a police officer can't make an arrest without making a complicated legal decision regarding whether the law of self defense would apply. For example, in a gang situation wouldn't it be best to get everyone off the street and then determine the details [with regard to whether self defense] applies. MS. CARPENETI, in response to Chair Ramras, specified that DOL had the following three primary concerns. Firstly, HB 381 deletes the requirement to retreat in Alaska, even when retreating can be done in complete safety and the individual knows that. Secondly, the provisions related to prima facie evidence are of concern. She explained that one must remember that the state, the prosecution, is required to disprove self defense beyond a reasonable doubt and the prima facie evidence considerations will make it that much harder to do so. The sponsor's concern, she related, was that a law-abiding person who didn't retreat would have to prove that he/she shouldn't have had to retreat. However, that's not the way it works; instead the state must disprove, beyond a reasonable doubt, that the law-abiding person didn't have a duty to retreat. Thirdly, the legislation specifies that a law enforcement official may not make an arrest until it's determined that self defense applies. The aforementioned is difficult to determine, even in the quiet of an office with the law and the facts. She opined that requiring this of law enforcement is asking too much, particularly since the situation is often one in which the police officer needs to stop the behavior, make an arrest, and then later decide who the charge should be appropriately levied against. 1:46:00 PM MS. CARPENENTI, in regard to the sponsor's suggestion, said that she would be happy to work with the sponsor and Mr. Judy on this legislation. 1:46:24 PM REPRESENTATIVE NEUMAN offered that people are being arrested after defending themselves. After being arrested, these individuals have to prove they didn't have a way to escape, which is often left to the jury to decide. Representative Neuman related that the goal with HB 381 is to not arrest individuals who have defended themselves. CHAIR RAMRAS surmised then that the legislation attempts to address those situations in which an individual who felt he/she was being attacked and defended himself/herself ultimately ended up in trouble in court. REPRESENTATIVE NEUMAN indicated that to be the case and reminded the committee of the earlier mentioned real situation of the minister in Big Lake. REPRESENTATIVE GATTO agreed with Representative Neuman's earlier point that a fleeing individual may be doing so simply to reload. 1:50:07 PM REPRESENTATIVE HOLMES offered her understanding that under current law, there would be no duty to retreat in a situation in which the individual believes the fleeing individual is merely moving to a location to reload. In such a situation, it would still be considered self defense. MS. CARPENETI concurred. In response to an earlier question, Ms. Carpeneti stated that one doesn't have to be afraid under current law. Deadly force, so long as it's reasonable under the circumstances, can be used in one's own home to terminate a burglary. In response to Representative Gatto, Ms. Carpeneti reiterated that the state must disprove self defense beyond a reasonable doubt. MR. JUDY acknowledged that it's a fine line in these situations. The notion that self defense must be disproved beyond a reasonable doubt is contrary to the fact that when the state is doing so, the individual who utilized self defense is in court. Furthermore, the individual has likely hired an attorney, been in prison for some time, and is a defendant in a court of law. The desire is to prevent the aforementioned. "We don't want a victim to be victimized a second time by the criminal justice system," he opined. He mentioned that he would be happy to continue to be involved in a dialogue to define this fine line. 1:53:49 PM REPRESENTATIVE GRUENBERG suggested the need to research the laws of other states on this matter. REPRESENTATIVE DAHLSTROM noted her support of the sponsor's intent. She then inquired as to the outcome of the situation in which the minister encountered a burglary at his church. REPRESENTATIVE NEUMAN answered that the minister was found innocent, but only after he expended a tremendous amount of money [in the case], was imprisoned for a time. Furthermore, it upset his family and his life. 1:55:15 PM CHAIR RAMRAS encouraged DOL, Mr. Judy, and the sponsor to work on HB 381. [HB 381 was held over.]