HB 381 - SELF DEFENSE  1:09:45 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 381, "An Act relating to self defense." 1:10:10 PM REPRESENTATIVE GATTO moved to adopt the proposed committee substitute (CS) for HB 381, 26-LS1534\E, Luckhaupt, 3/23/10, as the working document. There being no objection, Version E was before the committee. CHAIR RAMRAS pointed out that Version E was a truncated version of the original bill, but it will still benefit from discussion. 1:10:55 PM JIM ELLIS, Staff to Representative Mark Neuman, Alaska State Legislature, explained that Version E addresses the concerns which arose for the original bill. He noted that Version E is limited to one topic. 1:11:39 PM REPRESENTATIVE HERRON questioned whether the term, "complete safety" as used on page 1, line 5, will be statutorily defined. MR. ELLIS, in response to a question, explained that the original bill contained a section for a proposed addition to AS 11.81, which discussed prima facie evidence. He pointed out that this proposed section is removed from Version E. REPRESENTATIVE GATTO, pointing to Version E, page 2, line 3, asked if paragraphs (1), (2), (3), and (4) were necessary in light of (5). MR. ELLIS replied that he was not sure, and that there could be some duplication. He explained that it was easier to add paragraph (5). CHAIR RAMRAS, expressing his fascination with the meaning of different words, asked for the meaning of "or in any place where the person has a right to be." MR. ELLIS offered his belief that this is any place where someone is not trespassing. 1:16:52 PM CHAIR RAMRAS, reading Section 1, echoed Representative Gatto's question for the need of paragraphs (1)-(4). MR. ELLIS agreed that paragraph (5) would include the other paragraphs. 1:19:58 PM REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, in response to Chair Ramras, explained that paragraph (1) refers to premises that a person owns, leases, or resides in. He declared that paragraph (5) was added to allow an individual to protect themselves in a place where they have a legal right to be. CHAIR RAMRAS asked how paragraph (5) expands the rights beyond the prior four paragraphs. REPRESENTATIVE NEUMAN named the places a person could be as described in paragraph (1), and noted that this also included a member of the person's family, as noted in paragraph (4). He opined that paragraph (5) expands the current definition for a "place where you have a right to be to be able to protect yourself or your family." He relayed that earlier discussions with the Department of Law (DOL), the National Rifle Association (NRA), and his staff had revolved around the "razor's edge on where you fall on rights." Under the bill, there would still be a determination of whether the use of deadly force was justified. He suggested that this would prevent vigilantism. 1:24:49 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), acknowledged that Version E addresses many of the DOL's concerns, but she pointed out that it does not include the "duty to retreat," which is required in Alaska if it can be done in complete safety. In Alaska, self defense is a valid defense only if it can be proven beyond a reasonable doubt that you could not retreat in complete safety. In response to the question from Representative Gatto, DOL offered its belief that paragraph (5) eliminates the need for paragraphs (1) - (4). She explained that these were places that an individual has a right to be, so it is not necessary to list them. She pointed out that Alaska statutes do not define the term "complete safety". MS. CARPENETI, in response to Chair Ramras, stated that although Version E is better than the original bill, DOL still has concerns. She agreed with Chair Ramras that Version E "makes a bad bill, better." 1:26:39 PM REPRESENTATIVE HERRON asked Ms. Carpeneti to comment on the title of the bill. MS. CARPENETI said that juries will evaluate whether a person is justified. She explained that the use of deadly force raises the question of whether the person had the duty to retreat. 1:27:42 PM REPRESENTATIVE GATTO asked for examples of places that a person had no legal right to be. He asked if a sign declaring "No Trespassing" constituted such a place. [CHAIR RAMRAS passed the gavel to Representative Herron.] MS. CARPENETI agreed. REPRESENTATIVE GATTO asked if his house or his property would be included. MS. CARPENETI, in response, said that his house would be protected, but that it would depend on whether his property was clearly marked. REPRESENTATIVE GATTO asked about a paved driveway off a dirt road, which was the only pavement for a mile, and went directly to his house. [Representative Herron returned the gavel to Chair Ramras.] MS. CARPENETI replied that all of these instances would be "factually based." REPRESENTATIVE GATTO expressed concern about determining the boundaries of someone's unmarked property, which could lead to an accidental trespass. [CHAIR RAMRAS passed the gavel to Representative Herron.] 1:30:46 PM REPRESENTATIVE GATTO expressed concern about unknowingly trespassing onto unmarked private property. 1:31:42 PM REPRESENTATIVE GRUENBERG referred to AS 11.46.350(b)-(c) which addresses criminal trespass. He noted that criminal trespass in the first degree is defined as entering or remaining unlawfully with the intent to commit a crime, a Class A misdemeanor. He defined criminal trespass in the second degree as a Class B misdemeanor. He pointed out that entering or remaining unlawfully is defined in the statute. He further explained that a person entering land, without intent to commit a crime, which is unused, unimproved, and not enclosed, is "privileged to do so, unless there is notice against trespass personally communicated to that person by the owner of the land or some other authorized person." The committee took an at-ease from 1:34 p.m. to 1:35 p.m. 1:35:17 PM REPRESENTATIVE GRUENBERG asked if being on a paved road could be trespassing. MS. CARPENETI, in response, said that it would depend on the circumstances. The road would have to be marked as private. She agreed that a mailbox would indicate that it is private, but it would still depend on the circumstances. 1:36:22 PM MS. CARPENETI, in response to Representative Lynn, declared that any person who is invited in, including service people, has a right to be there. REPRESENTATIVE LYNN asked about people entering to retrieve an object, such as a ball or a model airplane. MS. CARPENETI replied that it would depend on the circumstances. 1:38:49 PM REPRESENTATIVE HOLMES, referring to the DOL letter dated March 15, 2010 [Included in the members' packets], asked if DOL maintained its objection. She read from the second paragraph on page one: "...if person A could avoid killing person B by walking away, he/she would no longer be required to do so, but instead would be authorized by law to kill person B." She asked if this would also now apply with Version E. MS. CARPENETI replied that it is correct. REPRESENTATIVE HOLMES read from page three, paragraph two: "The proposed subsection... would almost completely eliminate the duty to retreat." and she asked if this was also still a DOL concern of Version E. MS. CARPENETI replied that it was still a concern. REPRESENTATIVE HERRON, referring to Version E, page 2, line 3, asked if this was a re-write from the original bill. 1:40:16 PM MS. CARPENETI explained that Version E merely changes the numbering of the paragraphs. 1:40:41 PM REPRESENTATIVE GRUENBERG asked whether there had been discussion with the bill sponsor for inserting "that you only have a duty to retreat when you know you can safely do so." He opined that this was the basic principle of the common law. MS. CARPENETI replied that this was already included on page 1, lines 4-7, of Version E. MS. CARPENETI, in response to Representative Gruenberg, said that DOL did discuss with the bill sponsor the "burden of going forward and the burden of proof." MS. CARPENETI, in response to Representative Gruenberg, stated that the duty of presenting evidence of self defense was discussed in general terms. 1:43:10 PM REPRESENTATIVE GRUENBERG suggested a statement that "the burden to disprove the defense is on the prosecution beyond a reasonable doubt." He stated further that "all the defendant has to do is put in some evidence, enough to raise the issue, like to say, 'gee, I thought he was gonna go after me' and then the duty to disprove it, to show that didn't occur, is back on the prosecution and it's the highest burden in the law, beyond a reasonable doubt." 1:44:09 PM MR. ELLIS replied that he would speak with the bill sponsor. He offered his understanding that, for this defense, the burden shifts to the prosecutors to prove beyond a reasonable doubt. REPRESENTATIVE GRUENBERG agreed, and suggested that this be written into Version E. In response to Representative Herron, he explained that this is a convoluted area of law, which is not clarified in Version E. He suggested that making this change in Version E could better clarify the law. 1:46:23 PM REPRESENTATIVE HOLMES expressed her concern with gang violence. She offered her belief that Version E would extend the "no duty to retreat" to public places such as malls and parks. She asked if this might unwittingly legalize gang violence. MS. CARPENETI agreed that DOL also shared this concern. She said that the burden of "beyond a reasonable doubt" could be difficult to prove for either side. In response to a question from Representative Gatto, she explained that for this defense, the prosecution has the burden of disproving beyond a reasonable doubt, as defined in the justification section of Title 11. MS. CARPENETI, in response to Representative Gatto, said that it would be unusual to have this written in two places in the law, as it could lead to confusion. 1:48:58 PM BRIAN JUDY, Senior State Liaison, National Rifle Association - Institute for Legislative Action (NRA-ILA), offered his belief that the intent of the bill is to allow a person to kill someone who criminally threatens him/her. He said there are two questions to answer when someone is criminally threatened: first, is there justification for deadly force; and second, is there the possibility for retreat in complete safety. The NRA believes that no one should have to be burdened with this determination if they are in a lawful place. He agreed that there may still be a need to justify their action. He opined that Version E merely removed the duty to retreat. He opined that gang violence was an issue where justification was necessary. He stated that NRA just wanted to protect the law abiding citizen. REPRESENTATIVE HERRON declared that HB 381 [Version E] would be set aside until later in the meeting. HB 381 - SELF DEFENSE  2:27:44 PM CHAIR RAMRAS announced that as its final order of business, the committee would return to the hearing on HOUSE BILL NO. 381, "An Act relating to self defense." [Before the committee was the proposed committee substitute (CS) for HB 381, Version E, which had been adopted as the work draft earlier in the meeting.] CHAIR RAMRAS, after ascertaining that no one else wished to testify, closed public testimony on HB 381. 2:28:09 PM REPRESENTATIVE HERRON moved to report the proposed committee substitute (CS) for HB 381, 26-LS1534\E, Luckhaupt, 3/23/10, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GATTO objected, and suggested an oral amendment, which he stated: Page 1, lines 4-15: Delete all Page 2, lines 1-2: Delete all He opined that this would retain the essence of the bill. CHAIR RAMRAS objected, offering his belief that it was not the will of the bill sponsor. He asked Mr. Ellis to agree that the sponsor would include a statement outlining the suggested amendment from Representative Gatto as part of the bill package when it moved to the next committee. He opined that he preferred the specificity of Version E, but he recognized the value of the suggested amendment, as it offered an "umbrella over the whole bill." REPRESENTATIVE GRUENBERG reflected that more work needed to be done on the suggested amendment. He pointed out that paragraph (1) referenced "where this occurs"; paragraph (2) referenced "who this applies to"; paragraph (3) referenced "where it occurs'; and paragraph (4) referenced "what the person is doing". He stated that paragraph (5) should only be substituted for paragraphs (1) and (3). REPRESENTATIVE HERRON stated that he did not support the suggested amendment. He nominated that the bill title be changed to "An Act relating to self defense in any place where a person has the right to be." REPRESENTATIVE GRUENBERG offered his support for a title change, and he asked if the bill sponsor would support this. MR. ELLIS said that he could not speak for the bill sponsor, Representative Neuman. 2:31:42 PM The committee took an at-ease from 2:31 p.m. to 2:32 p.m. 2:32:45 PM CHAIR RAMRAS summarized the suggested amendment, and the subsequent discussion. He also spoke about the proposed title change. REPRESENTATIVE GATTO clarified that he had not made a motion for an amendment. CHAIR RAMRAS asked Representative Neuman, as the bill sponsor, for his response to a title change. 2:34:40 PM REPRESENTATIVE NEUMAN expressed his appreciation and offered his support to a title change. 2:35:09 PM The committee took a brief at-ease. 2:35:40 PM REPRESENTATIVE HERRON [although an objection had been stated to the motion to move the bill from committee and neither the objection nor the motion were withdrawn] moved to adopt Conceptual Amendment 1 for a title change, which he stated: Page 1, line 1: Following "defense" Insert "in any place where the person has a right to be." There being no objection, Conceptual Amendment 1 was adopted. 2:36:13 PM REPRESENTATIVE HERRON restated his motion to report the proposed committee substitute (CS) for HB 381, Version 26-LS1534\E, Luckhaupt, 3/23/10, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 381(JUD) was reported from the House Judiciary Standing Committee.