HB 408 - MISCONDUCT INVOLVING WEAPONS  1:50:57 PM CHAIR RAMRAS announced that the next order of business would be HOUSE BILL NO. 408, "An Act relating to misconduct involving weapons." 1:51:46 PM CHAIR RAMRAS [moved to adopt] the committee substitute (CS) for HB 408, Version 26-LS1459\K, Luckhaupt, 3/24/10, as a work draft. There being no objection, Version K was before the committee. 1:52:10 PM JANE PIERSON, Staff, Representative Jay Ramras, Alaska State Legislature, presented HB 408 on behalf of the House Judiciary Standing Committee, which is chaired by Representative Ramras. She directed attention to the following changes: The phrase, "do not apply to a person if", has been added in Section 1, on page 1, line 6, and page 2, line 4; and in Section 2, AS 11.61.200(a)(12) was added to those statutes to be repealed. She said Version K would return full gun rights to those with pardons, set-asides, or to those who have gone 10 years since being let off from a felony. CHAIR RAMRAS reviewed that the committee had discussed during a prior hearing that unless there is a perfect alignment between state and federal law, then the federal law preempts people from getting their full rights back. He asked Ms. Pierson if that is the gist of the alignment that the bill would reestablish. MS. PIERSON answered that is correct. 1:53:40 PM BRIAN JUDY, Lobbyist, National Rifle Association of America (NRA), urged support of HB 408. He attempted to assure the committee that HB 408 would not restore firearms to felons. He said it is already the policy of the State of Alaska to restore firearm rights to former offenders. The right to possess rifles and shotguns is restored upon their release from incarceration, while the right to possess handguns is restored if the person receives a pardon, set-aside, or "by operation of law after 10 years from their unconditional discharge." With a person's right to possess a handgun comes his/her right to carry it openly anywhere in the state. However, carrying a concealed handgun after a pardon, set-aside, or the 10-year period is limited to home property and lawful outdoor activity. He noted that 95 percent or more of a person's rights are restored by the state. Currently the only real restriction in current law is that a person who has had his/her rights restored cannot cover a handgun. He noted that a former offender, upon his/her unconditional discharge is also given back voting rights, jury rights, and the right to hold public office. MR. JUDY said that because of a technical and complicated interaction between state and federal law and a U.S. Supreme Court decision, Caron v. United States, persons who have had all these rights restored by the State of Alaska are still not recognized as having any rights restored for the purpose of federal law, and they can be prosecuted under federal law. He stated that the U.S. Supreme Court, in the Caron v. United States decision, held that an all or nothing test must be applied, and that any state's weapons limitation activates the Uniform Federal ban on possessing any firearms at all. In other words, unless Alaska restores 100 percent of a person's rights related to bearing arms, and treats that person like any other law abiding citizen who never lost rights, then under the federal law, the person has no rights. Because the State of Alaska imposes this slight restriction, under federal law, these individuals have no firearms rights whatsoever, he clarified. The intent of the bill is to facilitate the implementation of existing state policy and to allow persons whose rights have been restored by the state to exercise those rights and not have them extinguished by the federal government - to create an alignment between state and federal law. 1:56:44 PM MR. JUDY said there are two existing limitations on persons who have otherwise had their rights to possess firearms restored that are not imposed on persons who have never lost their rights. The first relates to a person's right to carry concealed, which is in AS 11.61.200(g)(2) and would be repealed by HB 408. The second limitation is that a person whose right to bear firearms has been otherwise restored would be in a position of having to raise an affirmative defense to a charge of either possessing a concealable firearm or carrying a firearm concealed. Mr. Judy said the bill proposes to repeal the prohibition on carrying a concealed weapon, because in effect that is contained within the prohibition on possessing a concealable firearm. In other words, he clarified, a person cannot carry a concealed weapon without already possessing that weapon. Repealing AS 11.61.200(a)(12) and (f) and (g) would leave just the prohibition on possessing a firearm capable of being concealed. The bill would further propose to "change the affirmative defend for that crime to an exception." By alleviating those two limitations and treating persons whose rights have been restored in the same manner as persons who have never lost their rights, HB 408 would solve the problem created by the aforementioned U.S. Supreme Court decision. MR. JUDY, in conclusion, offered the NRA's hope that legislators can move beyond the perceived stigma of "giving firearms to felons," which is not being done here, and realize the legitimacy of allowing persons who have long ago paid their debt to society to finally attain the restoration of their rights, which are already provided by the State of Alaska but extinguished because of the interaction between state and federal law, and the U.S. Supreme Court decision. CHAIR RAMRAS mentioned that something similar was accomplished in the realm of a "minor consuming" bill, only in that case, the state was out of alignment with the federal government. MR. JUDY confirmed that HB 408 would create an alignment between the state and federal government. 2:01:33 PM CHAIR RAMRAS noted that Representative Stoltze had brought up a concern regarding reciprocity with eight other states. MR. JUDY opined that there should not be a concern because there are already differences between various states' statutes related to this issue, but many states already recognize all other states' permits. The only potential problem, he surmised, may be where a state has conditional recognition, in which that state will recognize another state whose laws are comparable to its own. He explained that those states may have a problem if their issuance rules do not permit a person who has been convicted of a felony [to get a gun permit]. He indicated that there are eight such states, including Arizona and Montana; however, he noted that Montana will issue permits to those people whose rights have been restored. The other seven states that fall into the two criteria - will not issue a permit for a felony and only recognize states with comparable laws - currently recognize Montana's permits. He concluded, "So, the other state ... that does what we're proposing to do here is recognized by virtually every state out there, including those states that have conditional recognition." 2:04:17 PM REPRESENTATIVE HERRON asked whether, under HB 408, an Alaska State Trooper or Alaska certified local police officer would "follow state law ... under these circumstances." Further, he asked if, under 408, a federal law enforcement officer could approach someone in the state and arrest them for violating the federal law. MR. JUDY said the point of the proposed legislation is to align Alaska's law with federal law. Under HB 408, Alaska would recognize 100 percent of a person's rights regarding arms, thus, the federal government would completely recognize those rights. CHAIR RAMRAS disclosed that Bill Satterberg has done legal work for him and is a friend. 2:06:20 PM WILLIAM R. SATTERBERG, JR., Attorney at Law, Satterberg Law Offices, Fairbanks, Alaska, testifying on behalf of himself, told the committee he has worked as an attorney going on 34 years, and he related that 33-40 percent of his work involves criminal defense, while the rest is civil defense. He said last spring a client plead no contest to a felony suspended imposition of sentence (SIS). Regarding the term SIS, he explained that if a person has committed a crime, there is a mechanism available in criminal statute that allows the person's conviction to be set aside if he/she complies with the court's conditions of probation. He explained this means that although the person was convicted, the sentence was never imposed; therefore, the person is not a convicted felon. He said that particular mechanism has been used for years, and it is beneficial in restoring rights to those who committed non- violent crimes. MR. SATTERBERG said the aforementioned client, after successfully completing his probationary period, went to pick up his weapons, which had been held for safekeeping by the Alaska State Troopers, and he was told the Alaska State Troopers could not return the weapons to him because he was a convicted felon. Mr. Satterberg said the man lives in the Bush and relies heavily on his weapons for subsistence living and protection, but was told the state would be breaking federal law if it gave his weapons back to him. MR. SATTERBERG said there are many people in Alaska who have committed drug offenses, for example, and have paid their debt to society, but cannot get their weapon rights back because of an interpretation that the Department of Law is putting on "the statute that began last April." He mentioned letters he had written to Attorney General Dan Sullivan and Deputy Attorney General Richard Svodony [included in the committee packet] explaining why the interpretation of the federal law was wrong; however, he said because of a bureaucratic roadblock nothing of note happened as a result of the letters. He stated that [Version K] solves the problem, and he said he wholeheartedly supports it. He expressed his hope that there will be reciprocity regarding concealed carry, and he revealed that he is a concealed carry permit holder. However, he said even if there is no reciprocity with the 7 other states previously referenced, there are still far more citizens in Alaska that need to have their firearm rights returned to them. 2:10:56 PM MR. SATTERBERG, in response to Representative Gatto, clarified that an SIS is "a legal fiction of sorts." He said the person is technically convicted for the period of time that the probationary period is outstanding, but since a sentence or judgment of conviction is never imposed, the person is never really convicted. In response to a follow-up question, he clarified that the SIS is not the judgment; the judgment is imposed at sentencing, but ceases to exist at the conclusion of the SIS period. He said there are some people who should never have their rights restored, but he indicated that SIS people are not among them. 2:13:08 PM RON STERLING had his testimony read by Wayne Anthony Ross, Attorney at Law, as follows: My name is Ron Sterling. A few years ago I applied to buy two firearms and was denied by the mixed background check. This denial stems from a legal problem I had when I was 18. My younger brother was found by an Alaska State Trooper in possession of illegal drugs and told the trooper that he got them from my room. My father allowed the Trooper to search my bedroom, where he found one ounce of marijuana and a few pills. The Trooper stated that I was selling drugs, but I told him that I was not selling drugs. My dad told me not to lie to the Trooper. This went on for a long period of time until I finally gave up that I would agree to whatever they wanted. I was arrested many months later and charged with possession with intent to sell. I retained an attorney who, even though I told him I wasn't guilty, at trial persuaded me to plead guilty. He told me I would get probation, and that at some point my record would be clean. This happened with the State of Alaska. I've gone to the State Trooper headquarters on Tudor Road and gotten a background check to coach high school and American League in baseball at Service High School. My background and check from the State of Alaska shows no criminal record. After being denied by the next people, I retained the law firm of Ross & Miner to contest my case. My attorney filed to have my record expunged. This was approved without being contested. After this court approval, I again applied and was again denied the right to purchase firearms. The NICS [National Instant Criminal Background Check System] stated that it is perfectly legal for me to own, possess, or use firearms for any legal purpose, but because the State of Alaska didn't state that it was okay for me to purchase firearms, they're going to continue to deny me the right to purchase any firearms. This is incredibly twisted logic, as it is legal for me to have a firearm, but illegal for me to purchase one. I am 58 years old. I lived in Soldotna for 11 years; sold a home; bought and paid for a home in Anchorage where I currently live with my wife of 26 years. We have raised two sons and a daughter. I've worked the same job for 36 years, paid my taxes, and voted in every election. I work with the football staff at Soldotna High School for five years and was an assistant coach for Soldotna High School basketball team for three years. I also coached for Soldotna Little League for five years, (indisc.) Rabbits for five years, and Service High School and American League in baseball for two years. I served on the executive board of the Anchorage Independent Longshoremen Union for 12 years. By any measure I am a good citizen and to be in a position where the federal government can continue to penalize me 40 years after the fact, using twisted Alice In Wonderland logic, is a folly. I would certainly appreciate any and all help that you can give me in this manner. Sincerely, Ron Sterling 2:16:40 PM WAYNE ANTHONY ROSS, Attorney at Law, Ross & Miner, Inc., estimated that in his 42 years of practice, he has had six clients that have been affected by the federal inconsistency with Alaska law. He said Mr. Satterberg has had such clients, and he said he is sure there are hundreds of others similarly affected. He urged the committee to support HB 408. MR. ROSS, in response to Representative Herron, said under present law, Alaska State Troopers and police officers can use federal law to arrest someone merely for possession of a rifle or a shotgun. He said HB 408 should correct that problem, because federal law recognizes people's rights to own firearms, provided they have gotten their full rights restored, and the proposed legislation would make that happen. 2:20:06 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), stated that DOL has a concern with the bill because it believes that by changing these provisions from an affirmative defense to making the law not apply to these people will make it extremely difficult to prosecute anybody for being a felon in possession of a firearm - even people who have not had 10 years pass by. Currently, the defendant has the burden of proving that those circumstances exist. For example, she said, if a person has a prior offense, for which he/she received a pardon, then that is information that is uniquely in the possession of that person. [Under HB 408], DOL would have to disprove beyond a reasonable doubt that the person did not have a pardon or an SIS that was set aside. 2:22:59 PM MS. CARPENETI, in response to Chair Ramras, offered an example in which, under current law, a person charged with being a felon in possession would bring forth evidence of a pardon. In response to a follow-up question from Chair Ramras, she said drug offenders and others in that milieu get guns one way or another - not necessarily legally - and if they are found with a gun by a police officer, and the state wanted to prosecute them, the state would have to prove that they did not get a pardon for the underlying offense for which they were convicted. REPRESENTATIVE GATTO asked, "Isn't it impossible to prove a negative?" MS. CARPENETI responded that that is the department's concern, that the information that a person has a pardon is in that person's possession, and he/she should be able to come present that information to the court. The same applies to an SIS, she relayed. She said she thinks the department would have information about an SIS for a conviction in Alaska, but not necessarily from other states. In response to a follow-up remark from Representative Gatto, Ms. Carpeneti said by saying that these provisions do not apply to a person in these circumstances, the person would have no duty to come forward and say, "I was pardoned." CHAIR RAMRAS asked for suggestions on how to make it possible to "create this accommodation" without compromising the work of the department. MS. CARPENETI indicated that finding such suggestions is difficult, because the state is dealing with federal law, which is supreme over state law. She said she does not have a suggestion at this point, but the department is certainly willing to work with the bill sponsor. She emphasized the difficulty of this area of law. CHAIR RAMRAS concluded then, that this is a policy call whether to come up with a mechanism to restore rights for convicted felons who have paid their debts to society and then have to deal with the burden of proving pardons and SIS claims from those from other states. MS. CARPENETI replied that under Version K, the department believes that it would have to "disprove that beyond a reasonable doubt." 2:27:56 PM MR. ROSS offered his understanding that if a person is arrested and charged with being a felon in possession, then the defense would be: "I'm not a felon in possession; it's not against the law for me to do it." He said he does not understand the logic behind the argument of the department. He said if a person is charged, he/she comes up with a defense; it should not have to be an affirmative defense, because "the average person does not have to come up with an affirmative defense." He stated, "But certainly if anyone is charged, they're going to have to come up with a defense, they just don't have to prove their aspect of the defense." He indicated that it is the roll of the prosecutor to prove that the charges against someone are correct. 2:29:18 PM MR. SATTERBERG concurred with Mr. Ross that anytime there is an affirmative defense, the burden of persuasion shifts to the other side to have to come forward with evidence to prove the allegations. He said when the affirmative defense is made such that a person must provide proof of "the following," there is a failure to realize that that person is still being charged initially. The government, under constitutional law, has the burden of proof beyond reasonable doubt; however, if the government is going to charge somebody with being a felon in possession of a weapon, the government should be in possession of the evidence it needs to prove that case. He interpreted the testimony of Ms. Carpeneti to mean that the state is going to charge the person, then make that person come forward with evidence to disprove the state's charge. He said it is rare in our society's system that a person has to come forward with any proof; the person has constitutional rights to remain silent and the government has the requirement to prove the person guilty beyond a reasonable doubt. He said "our" position is that if the state does not have its facts in order, it should not bring forth charges in the first place. He concluded, "If we're talking about aligning things up with federal law again, the problem is if you don't do it this way, you're going to find a disjoint between the federal law and the state law, and we're right back to the problem that started this." 2:31:01 PM MS. CARPENETI noted that under current law, the fact that person had a pardon is an affirmative defense, and under Alaska law, an affirmative defense is one that the defendant has the burden of proof of establishing. On the other hand, she said, a defense is a defense that the state has to disprove beyond a reasonable doubt. She offered self-defense as an example of defense. The bill would change Alaska law from affirmative defense to say that the prohibition against carrying concealed does not apply to a person with a pardon. She said that is an unusual way of drafting [law], and DOL's position is that that, in effect, makes it a defense that the state has to disprove. So, in bringing a charge of felony possession, the state would have to be prepared, as Mr. Satterberg said, to disprove that the person got a pardon, and that pardon might have come from any state in the Union. CHAIR RAMRAS said this is a policy call. He indicated that he understands the concerns of the state, but does not empathize with the department's position, because of the compelling stories he has heard from Alaskans who have paid their debts to society and cannot get their gun rights back. 2:34:14 PM MS. CARPENETI said she understands the confusion regarding this issue, but the concern of the department is, for example, that a drug dealer who has been convicted of an unclassified felony is still carrying a concealed weapon, even though that is against the law, and if he is charged with being a felon in possession, the state would have to prove that he was not pardoned in other states, which would be a difficult burden of truth. REPRESENTATIVE GATTO indicated that he cannot envision a judge saying, "We have to do a lot of work on every one of you guys." He said the judge would simply make a ruling; however, the attorney may say the ruling is out of order. He asked Ms. Carpeneti if that is the scenario that is of concern. MS. CARPENETI answered that a judge must follow the law adopted by the legislature. She said the department's concern is that "saying that it does not apply to people in these circumstances" would "make it part of the case in chief for us to have to disprove." She offered her understanding that Mr. Satterberg had just said as much. 2:35:58 PM CHAIR RAMRAS, after ascertaining that no one else wished to testify, close public testimony on HB 408. 2:36:13 PM REPRESENTATIVE HERRON moved to report the proposed committee substitute (CS) for HB 408, Version 26-LS1459\K, Luckhaupt, 3/24/10, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 408(JUD) was reported from the House Judiciary Standing Committee.