HB 171 - ARRESTS FOR MISDEMEANORS 1:06:18 PM CHAIR GATTO announced that the first order of business would be HOUSE BILL NO. 171, "An Act relating to arrests without warrants by peace officers for certain misdemeanors." 1:06:37 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, sponsor by request, explained that HB 171 would allow law enforcement officers to make an arrest without a warrant for certain misdemeanor crimes against a person when there is probable cause. The concept of HB 171 was brought forth by the Juneau Police Department (JPD), and is endorsed by police departments across the state. Under AS 11.41 - offenses against a person - misdemeanor crimes include assault in the fourth degree, reckless endangerment, stalking in the second degree, custodial interference in the second degree, sexual assault in the fourth degree, sexual abuse of a minor in the fourth degree, and indecent exposure in the second degree. She mentioned that law enforcement representatives would be providing testimony regarding why legislation such as HB 171 is needed and how it would improve law enforcement's ability to effectively ensure public safety in Alaska's communities. 1:09:13 PM KRIS SELL, Lieutenant, Juneau Police Department (JPD), City & Borough of Juneau (CBJ); President, Capital City Chapter - Juneau, Member, State Board of Directors, Alaska Peace Officers Association (APOA), after mentioning that she would be testifying only on behalf of the APOA, said that the APOA is supporting HB 171 as part of its agenda to promote victims' rights. She then shared an experience she'd had many years ago as a patrol officer in Juneau as illustrative of the need for HB 171. Back then, there was a man in the downtown area who liked to beat up people who were weaker than himself, especially drunk people because they were easy targets; he would just start punching other people simply because they drew his attention. One night, near the El Sombrero restaurant on Franklin Street, this man punched a much smaller/lighter man in the face. The victim, who either couldn't or wouldn't do much to defend himself, was young and had some mental-health problems but regardless had done nothing to deserve getting beaten. The victim was obviously injured by the time she arrived, she relayed, and witnesses pointed out where the perpetrator had gone, and knowing whom they were referring to, then-Officer Sell gave chase and caught up with him by the bank on Front Street. LIEUTENANT SELL continued: I got in front of him and told him he was detained as part of the investigation. He sized me up and down and said, "No, I'm not." I said, "Yes, you are," and drew my baton from the ring at my waist. He looked at me and thought for a second - I felt like I could almost see the smoke coming out of his ears as he pondered what might happen next - [and] I will admit to being relieved when he said, "Okay," and turned around and put his hands behind his back to be handcuffed - he had a long history of assaulting people, both [domestic partners and others], ... and he knew the drill. I walked him back to the scene to the approval of the gathered crowd, and put him in the back of my patrol car, and spoke with the victim, the victim's friend, and other witnesses. They all agreed I had the right man and that he had viciously punched the much smaller man in the face. It also came out in officer interviews, there and other places, that the man had punched two other people within about 24 hours, one of whom had [come] ... into the police department with his eyes swelled shut. 1:12:12 PM I got out a citizen's arrest report form and offered it to the people who ... saw the assault. No one would sign. They were afraid of him. I was frustrated, but I understood - he was a very scary man, even for us. None of the civilians in the area wanted to be the focus of this violent man's attention and retribution. I told the victim about how I was going to have to let the man go if no one would place him under arrest. This is exactly what happened - [I] took the man out of the car, took off his handcuffs, and let him go. You can imagine what this did for his reputation as someone who was going to do whatever he wanted and nobody, including the police, ... [was] going to stop him. The bully went on to harm additional people in his criminal career, until we finally saw him go to prison for a long period after he robbed a homeless man: a felony, where we didn't need anybody who was a witness to place him under arrest. But I've always wondered how many of those assaults - how many of those criminal acts - could have been prevented if we could have held him accountable more severely and much quicker. I'm asking you to let the police protect citizens and to do so immediately after a citizen is violently attacked. We officers will put our names down on the piece of paper and take the responsibility for arresting those who hurt others. Please don't continue to put that responsibility on people who are frightened and who have every reason to be frightened. It is time to tell the bullies and those who make a lifestyle of intimidating others that we are done with that behavior, and consequences for attacking even a stranger will now be immediate. Thank you - I appreciate your time and attention .... LIEUTENANT SELL, in response to questions, reiterated that the APOA supports HB 171, and said she doesn't anticipate that the arrest authority granted by the bill would be used all the time, particularly given that even with probable cause, law enforcement officers often want to conduct additional investigation before actually arresting someone; instead, HB 171 would give law enforcement officers another tool with which to address violent behavior immediately. She pointed out, too, that an arrest would not be mandatory under the bill like it is under Alaska's domestic violence (DV) statutes. In response to further questions, she explained that law enforcement officers already have to determine whether an assault has actually taken place, whether there really is probable cause to arrest someone, who to arrest, and whether an arrest is going to be the best way of addressing the violent behavior or whether alternative steps could be taken, and the bill wouldn't change that; and that current law already requires mandatory arrest in situations involving DV regardless of whether the violence is witnessed by the officer, and thus the bill wouldn't be used in DV situations. Again, HB 171 would simply give law enforcement officers a tool with which to immediately address [non-DV- related] violent behavior in situations where no one wants to make a citizen's arrest and the officer hasn't witnessed the behavior. 1:21:07 PM EDWARD TALIK, Chief, Ketchikan Police Department (KPD), City of Ketchikan, expressed support for HB 171, characterizing it as important legislation that would provide another tool for Alaska's law enforcement officers. He went on to explain that the KPD is a small police force, serving a population that doubles with the influx of seasonal workers and tourists, and thus there is a definite need for the KPD to keep public safety at the forefront of its efforts. If passed, he predicted, HB 171 would give KPD officers greater latitude to address some of the issues they face daily. Often, calls for service pertaining to [non-DV-related] assaults come after the fact, and currently law enforcement officers can't do much unless someone is willing to place the perpetrator under citizen's arrest. By allowing an officer that has probable cause to make an on-scene, warrantless arrest for one of the aforementioned misdemeanor offenses against a person, HB 171 would go a long way towards helping the KPD protect its citizens, particularly given that many times officers end up responding to the same call several times during their shift; by providing the option of taking an individual into custody on the first call and thereby preventing folks from being further injured by that same individual, HB 171 would result in a more efficient use of law enforcement resources. Furthermore, it makes more sense to arrest a perpetrator of a violent crime immediately. 1:24:17 PM MR. TALIK offered his belief that HB 171 would help protect victims from further violence and serve as a deterrent because perpetrators of violence would know that they're going to be arrested immediately when there is probable cause. There must be a balance between protecting the individual's rights and protecting the public at large, and HB 171 would be a small step toward achieving that balance, he opined, additionally offering his belief that HB 171 would survive a constitutional challenge because similar laws in other states have done so. In conclusion, he reiterated his belief that once adopted, HB 171 would help protect people in the community. In response to questions and comments, he stated that arrests should only be made when there is probable cause to make an arrest; pointed out that the bill, already, would only apply to misdemeanor offenses against a person, and that although there might be a cost associated with making more arrests under the bill, there is a huge cost to society and to victims when they are continually being abused, assaulted, or raped by the same perpetrators of violence; offered his belief that the authority granted by the bill would not be used that often, and that it would not be abused because officers are trained to follow the rules of arrest which require them to have probable cause before making an arrest; and surmised that changing the bill such that it would specifically list the crimes to which it could apply would still be in keeping with the spirit of the bill. REPRESENTATIVE HOLMES questioned whether perhaps the bill ought to be changed to specify that it could only be used when the officer also has reasonable cause to believe a danger to the public exists if someone isn't arrested, but acknowledged that whether a person should be arrested under the bill could instead just be left up to the discretion of the officer. MR. TALIK indicated a preference for having the bill be as simple as possible. 1:36:11 PM TERRY VRABEC, Executive Director, Alaska Police Standards Council (APSC), Department of Public Safety (DPS), relayed that both the APSC and the Alaska Association of Chiefs of Police, Inc. (AACOP), support HB 171. In response to a question, he explained that from the very beginning, the training of law enforcement officers stresses the importance of learning what constitutes probable cause and of being able justify all arrests; and that it is the responsibility of the heads of Alaska's various law enforcement agencies to ensure that their officers are following proper procedure. He then offered his belief that HB 171 would be effecting a good law, and cautioned against tightening it up to the point where it would no longer be helpful. 1:39:05 PM JERRY NANKERVIS, Captain, Juneau Police Department (JPD), City & Borough of Juneau (CBJ), shared an experience he'd had many years ago regarding a bar fight he'd responded to as illustrative of the necessity for and appropriateness of HB 171. Back then, when he arrived at the scene, the man who'd lost the fight was unconscious and so couldn't be interviewed, and although witnesses at the scene pointed out the perpetrator, none were willing to sign the arrest form, and therefore [then- Officer Nankervis] was unable to arrest the perpetrator because he had not witnessed the fight. Noting that as a police officer he is charged with public safety, he said he wasn't able to do his job that night, and characterized that inability as just being wrong. Passage of the bill would neither lower the standard requiring that there be probable cause before an arrest is made, nor increase the potential for false arrests; instead, what would change is that law enforcement officers would be better able to address public safety issues immediately under certain circumstances. CAPTAIN NANKERVIS also noted that when an arrest is made, it doesn't necessarily mean that the person is actually put in jail; instead, law enforcement officers might simply take the perpetrator to the police station and issue him/her a ticket before releasing him/her. Expressing a preference for having the bill apply to all misdemeanor crimes so that it would also address [certain] property crimes, he, too, noted that an arrest would not be mandatory under the bill. Furthermore, there are already procedures in place to address abuses of law enforcement's arrest authority, he remarked, and offered his belief that law enforcement officers already have a pretty good idea about what needs to be done in order to maintain public safety, and that HB 171 would assist in those efforts. In response to a question, he relayed that whether an assault warrants a misdemeanor charge or a felony charge depends on the severity of the injury sustained by the victim, and on the severity of assaultive behavior. 1:51:50 PM LAREN J. ZAGER, Chief, Fairbanks Police Department (FPD), City of Fairbanks, ventured that proof of the value of HB 171 lies with existing law, specifically the laws pertaining to the crimes of domestic violence (DV) and driving under the influence (DUI); years ago, the legislature determined that the state needed to more effectively and more efficiently address situations involving DV and DUI, and so provided law enforcement officers with the authority to arrest in those situations based on probable cause. House Bill 171 would merely be an extension of that authority, and wouldn't require law enforcement officers to change their probable-cause standards, or interfere with their existing discretion to determine whether an arrest should be made in any given case. An arrest would not be mandatory under HB 171, and it has the potential for making law enforcement more efficient while also being of benefit to the public. MR. ZAGER then pointed out that there is a distinction between arresting a person and charging a person; one could be arrested but not charged, and one could be charged but not arrested. Under HB 171, a law enforcement officer would be allowed to establish whether a particular person is going to be a danger to himself/herself or others, and then, if the existing probable- cause standards are met, put the person in handcuffs and take him/her to jail; the bill wouldn't affect law enforcement's ability to charge the person with a misdemeanor, but it would sure affect law enforcement's ability to take the perpetrator out of play for whatever period of time is necessary to ensure the safety of the public. In conclusion, he said he supports HB 171, though he wishes it applied to "virtually all misdemeanors." 1:55:32 PM PAGE DECKER, Assistant Chief, Juneau Police Department (JPD), City & Borough of Juneau (CBJ), relayed that he has worked as a police officer in other states that have had laws similar to that being proposed by HB 171, and considers such laws to be great tools, adding that he has not seen them abused, surmising that that's due to the training law enforcement officers receive and the internal systems that are in place to deal with abuses. He then provided members with a handout listing those similar laws. Characterizing the law proposed by HB 171 as a critical tool, he opined that Alaska's law enforcement officers need it in order to succeed in their mission of keeping the peace. Without the ability to bring control to disorderly-conduct incidents without the assistance of a willing citizen, communities can't be assured that their law enforcement officers will be effective when called upon for help, particularly given that in such [misdemeanor] cases, law enforcement officers have no more authority than any other citizen to arrest a perpetrator of violence. Without adoption of HB 171, there will continue to be no immediate consequence for those who choose to [violently misbehave]. 1:58:51 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), said that officially, the DPS is neutral on HB 171, though it agrees with the comments made by the previous testifiers. Regardless that HB 171 might slightly increase the number of arrests made by law enforcement officers, the DPS anticipates that the additional time required to make those arrests would be offset by a reduction in the officers' workloads because they would no longer need to be continually responding to the same scene, and by a reduction in the number of subpoenas and warrants issued. Law enforcement officers in rural areas of the state would also benefit by the adoption of HB 171 because it's not always possible for them to contact a judicial officer immediately [in order to obtain a warrant]. 2:00:15 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), said that HB 171 raises concerns for the PDA because the bill in essence bypasses any review of the arrest decisions made in [certain misdemeanor] cases, even those with no exigency requiring immediate arrest. He predicted that under the bill, arrests without sufficient probable cause would occur. Furthermore, as currently written, HB 171 would apply to some very low-level misdemeanor offenses against a person, and this, too, is of concern to the PDA, he indicated; for example, the crime of reckless endangerment could [perhaps] involve something as simple as driving too fast on an icy road and not being able to stop at a stop sign. 2:02:57 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), in response to a question, said that the DOL's concerns regarding HB 171 - as expressed in a letter dated February 7, 2011 - have been significantly alleviated by the bill's limited application to only the aforementioned misdemeanor offenses against a person instead of to all misdemeanors. She said she shares the PDA's concern that the bill would allow an arrest for an offense committed outside the officer's presence even in cases that don't involve exigent circumstances. In conclusion, she acknowledged, though, that the examples such as the one shared by Lieutenant Sell illustrate how legislation such as HB 171 could provide a useful tool for law enforcement. CHAIR GATTO indicated a belief that with very few exceptions, most law enforcement officers, given all their training, probably wouldn't abuse the bill. CHAIR GATTO, after ascertaining that no one else wished to testify on the bill, closed public testimony, and relayed that HB 171 would be held over.