SB 309 - USE OF NONLETHAL AND DEFENSIVE WEAPONS CHAIR JAMES announced the next order of business would be SB 309, "An Act relating to the use of force by peace officers and correctional officers," sponsored by Senator Jerry Ward. Number 0017 CRAIG JOHNSON, Legislative Administrative Assistant to Senator Jerry Ward, Alaska State Legislature, came before the committee to present the sponsor statement. He indicated this is a very simple bill. He stated that technology has somewhat caught up with some of our laws and said the way the law currently reads is that any projectile fired from a weapon capable of firing a lethal projectile is considered a lethal weapon. He explained that SB 309 removes the incapacitating rounds that the police officers use in situations that are not intended to permanently injure or kill someone. It takes them off the list of nonlethal weapons. He referred to an article from the Anchorage Daily News entitled, "Bullet stops suicide", which is in the committee members' packets. He said the incident described in the newspaper happened after Senator Ward filed SB 309. He indicated they didn't plan it, but it couldn't have happened at a better time. Mr. Johnson explained that it was a situation where a woman was holding herself hostage with a knife, threatening to commit suicide. The police department determined that the best way to stop this attempt was to use a beanbag round. He noted that it prevented an officer from having to go in and disarm the individual; it protected her life and it protected his life. MR. JOHNSON noted that this bill was generated as a request from the Anchorage Police Department SWAT Team. He pointed out that Senator Ward's son-in-law is a member of the Anchorage SWAT Team. He indicated that the SWAT team doesn't feel like they're protected. He said if they use one of these rounds under specific orders from their supervisors with proper training, there is still the opportunity that they could face liability based upon using a lethal firearm in a nonlethal situation. Number 0045 REPRESENTATIVE JOE RYAN stated that on the surface, SB 309 doesn't appear to have any problems. He then asked what if a peace officer/guard used a nonlethal firearm and he's a little close and causes grievous bodily harm or death. He said a person can be killed if they're close enough from the (indisc.) on a blank round. He said he is concerned about taking the liability away from police officers, especially prison guards, and he is concerned that someone will get hurt and the peace officer/guard will walk free. He asked how the legislature can make sure that the officers are responsible for their actions. MR. JOHNSON said, "The bill clearly states that operating within the guidelines and by a fully-trained officer." He said the bill would not cover an officer who has not been properly trained or is not operating within the specified guidelines set forth by the Department of Corrections. The bill would not cover someone who blatantly did it. This bill would cover the rare accident. SB 309 does not indemnify someone from being sued. He said if an officer acts negligent, they should be held responsible for their actions. Number 0067 REPRESENTATIVE RYAN said if he inadvertently kills someone, it's manslaughter. If a public employee inadvertently kills someone, it's a civil law suit and he indicated that that bothers him that public employees are not tried under the same criminal statutes that any other citizen would be. He said he does not trust any officers or guards because if you don't watch them, they will do some of the worst things that have ever been done. CHAIR JAMES said she would like to respond to Representative Ryan's last statement from her position on that issue. Speaking only for herself, she said there is a world of people who make mistakes; and there is a world of people who have the wrong attitude and are not trustworthy. She said she is not willing to take the position that no one is trustworthy. She likes to believe that everyone is trustworthy and when she finds they are not, then she will know that. She can't live in fear of every single person. Number 0080 REPRESENTATIVE KIM ELTON stated that he does not see a distinction between correctional officers who are employed by the state or correctional officers who are employed by a private firm. He asked what the definition of a peace officer is. MR. JOHNSON advised that there is a statutory definition of peace officer and correctional officer. He noted that one of the amendments proposed in a previous committee mentioned "guard" throughout the legislation and the Department of Corrections testified on behalf of that bill in support of it and asked to have the term "guard" changed to "correctional officers." They found that correctional officers have no status in statute, where guard did, and it would have required a substantial rewrite to make that change. He then referred to Representative Elton's question regarding the definition of peace officer. He indicated that private correctional officers are very new to Alaska and he does not know if they have defined that yet. He commented that the operative term in the bill is "properly trained." If a correctional officer has been through the SWAT team training and has been trained to use the nonlethal firearm and beanbags, he thinks they would fall under this legislation. He reiterated that "proper training" and "under orders" covers that area. Number 0095 REPRESENTATIVE ELTON asked if "proper training" would be defined by the court. MR. JOHNSON replied he believes it's a police standard that they would have to meet. Currently, there are only about half a dozen police officers in Anchorage that are trained to use the nonlethal firearms, which is the SERT (Special Emergency Reaction Team) team and the SWAT (Special Weapons And Tactics) team. He indicated that they are highly trained and go through regular psychological testing, which is the type of training that would have to be met prior to anyone being allowed to use the nonlethal weapons and be covered by this legislation. If a police officer used the nonlethal weapon and was not properly trained they would be liable and this legislation would not be in effect. Number 0104 REPRESENTATIVE ETHAN BERKOWITZ commented that he has worked with a number of police officers and correctional officers and in response to Representative Ryan's comments, he would venture to say that their degree of trustworthiness is "higher than in this body." He said in his way of thinking, this bill is simple; it just defines nonlethal firearms. He said, "These ballistics that you show in here clearly are not designed for lethal purposes. But like anything they can be used in a lethal fashion and there's no exemption under this statute when these are used in a lethal fashion. And there's no immunization. Part of this, it seems to me this is a straight-forward definitional bill." CHAIR JAMES noted for the record that Representatives Ivan is present. Number 0113 REPRESENTATIVE MARK HODGINS agreed with Representative Berkowitz on the nonlethal firearm definition, however, he would like a definition of "defensive weapon." He indicated he would like to know if a "357" is a defensive weapon, as well as stun guns and pepper sprays. He said there are numerous weapons that might be used that would fit under the definition of defensive weapon. MR. JOHNSON responded that this was designed primarily for prison guards who may be in a riot situation. Regarding the different types of weapons that fall under the definition of defensive weapon, he indicated that the way that the statute reads currently is "any projectile fired from a weapon capable of firing a lethal projectile is considered a lethal projectile" even though they were not designed to do so. He is not certain that there is a projectile designed for a 357 that's designed not to be lethal. The statutes cover pepper spray and the other types of net guns that are fired out of a special weapon. This bill is designed to address that very narrow definition of what a lethal projectile is. If a person fired a 357 in a defense mode, that's not what this bill is designed to do. REPRESENTATIVE BERKOWITZ said it seems the concerns that Mr. Johnson raised are addressed in a nonlethal definition. He indicated the definition of nonlethal as it is used in the statute is the projectile and that defines what type of firearm is being used. He said "defensive weapon" has no meaning and it's vague and he thinks the intent of this bill is covered by using the nonlethal firearm definition. Number 0138 REPRESENTATIVE RYAN said he has a question about the physical properties. He gave an example using a 12-gauge shotgun and asked what is the range on the shotgun before a shot delivers "X" amount of force and a shot that could concentrate that force and cause some serious harm and/or penetration. MR. JOHNSON explained that the design of bag is such that when it hits on a corner, the lead shot expands. It is designed to distribute the weight evenly, less so if it hits flat. He indicated that's where the "proper training" and "under direction" comes in. He said he would be remiss to say that people have not been injured by this. When a police officer has to make a decision whether or not to fire a projectile, it is a very unique situation similar to the suicide situation addressed earlier, but not to the level of a police officer taking their revolver out and firing it, but at a level below that. He said the police view it as a long baton. If you hit someone in the head with a baton, you can do serious damage, but if a person is properly trained and needs to subdue a suspect and if it's used properly, it's a very effective tool. Mr. Johnson referred to the suicide case and said the way the law is currently written, the officer that fired the projectile was equivalent to an officer pulling out his 38 mm and shooting the woman in the arm. He said that situation would be totally frowned upon and the officer would be in a lot of trouble, but by statute it's the same because he fired a lethal projectile. He noted that it is the belief of the sponsor that a person acting under training, under the rules of engagement of the Department of Corrections, should not be held accountable as if they pulled out their 38 revolver out and shot someone. He indicated that the purpose of the statute is only for projectiles fired from weapons capable of firing a lethal projectile. It's a fairly narrow definition of what this does. It doesn't take in the new technologies of the nets and the phone and the pepper sprays, but those are not designed to be fired from weapons capable of firing lethal projectiles. CHAIR JAMES said, "The feelings I have on this bill is that I think that it has gone through other committees and come out this way. I'm a little uncomfortable with the defensive weapons that you say that it's the load that makes the determination, not the physical- ness of the weapon. This does have a Judiciary referral, which I feel real comfortable with [Representative] Brian Porter on that and his police experience. I guess without anyone giving me any real ways that we need to amend this bill, I would be comfortable sending it on to Judiciary where it will get another review." Number 0180 REPRESENTATIVE BERKOWITZ made a motion to delete "(1)" and ", or (2) defensive weapon" on page 1, line 8, to so it would read: "...use includes the use of a nonlethal firearm." Also, on page 1, line 9, to delete "or a defensive weapon" so it would read "...a nonlethal firearm does not amount to the use of deadly force...." CHAIR JAMES asked whether there was any objection. REPRESENTATIVE RYAN asked Mr. Johnson if the sponsor would be comfortable with the amendments made by Representative Berkowitz. MR. JOHNSON said any time there's a change to someone's bill, there's a certain level of uncomfortableness. He indicated that the bill was drafted with the assistance of the Anchorage Police Officers Association and their attorneys, and it is based on a bill that was drafted out of Iowa and they basically had the same problem. He said, "This bill has been thought out by people who know more about this than I and probably more than the sponsor does." He noted that it was done at the request of the Anchorage Police Department with a lot of input. He said until he can communicate with the sponsor, attorneys, and other people that had input, the sponsor might want to have the opportunity to review the amendment by Representative Berkowitz before it is enacted. Number 0205 CHAIR JAMES said the definition of "defensive weapons" is broad. She indicated that she doesn't expect legislators/staffers to submit legislation to the committee without the possibility of it being amended, and she feels a little uncomfortable that Mr. Johnson is not able to respond to the amendment. However, if the committee passes the amendment and the bill moves to the Judiciary Committee, she would suggest - if the amendment is not a good amendment and if Mr. Johnson has a good argument that it should not be changed - that the sponsor has a right to bring that up when they present the bill to the Judiciary Committee. She indicated if this was the last committee of referral she would like to hold the bill and check with the sponsor, but since it is not, she would rather not hold the bill. MR. JOHNSON reiterated that he still has a certain level of uncomfortableness. CHAIR JAMES said she understands that Mr. Johnson can't tell about another person's comfort level. Number 0216 REPRESENTATIVE HODGINS said he wanted more information on the mechanics of the bill. He said if the committee changes the bill and then it's changed back to it's present form in the next committee because of an argument, he asked, "Does that mean that that is a [committee substitute] CS and it has to go back through the Senate side?" CHAIR JAMES advised that two things can happen: they could amend the bill in committee today and it can go to the Judiciary Committee and Judiciary can take the original bill and not the amended one. She explained that Judiciary cannot take their CS, but they can take the one that State Affairs passes out, and/or if they wanted to, they can do a different CS. She indicated that anytime there is a change to a bill on one side or the other, the bill has to go back for concurrence. She remarked that intense scrutiny of a legislation is certainly warranted. Number 0227 CHAIR JAMES again asked if there was an objection to the motion made by Representative Berkowitz. There being no objection, it was so ordered. Number 0229 REPRESENTATIVE BERKOWITZ made a motion to move HCSSB 309 as amended out of committee with individual recommendations and attached zero fiscal notes. There being no objection, HCSSB 309(STA) moved out of the House State Affairs Standing Committee.