HB 80-SELF DEFENSE  1:33:30 PM CHAIR FRENCH announced the consideration of HB 80, "An Act relating to self defense in any place where a person has a right to be." 1:33:42 PM REX SHATTUCK, staff to Representative Mark Neuman, a prime sponsor of HB 80, characterized the bill as the "no duty to retreat" legislation. He explained that HB 80 amends AS 11.81.335(b) by adding a new paragraph (5) to clarify a person does not have a duty to retreat and can instead apply deadly force in defense of self if he/she is anywhere he/she has a right to be. He noted that approximately 18 other states had already passed or were working on similar legislation. CHAIR FRENCH noted that Lieutenant Dial with the Department of Public Safety (DPS), Brian Judy with the National Rifle Association, Quinlan Steiner with the Public Defender Agency and Anne Carpeneti with the Department of Law (DOL) were available to answer questions. He asked Mr. Shattuck if a particular incident in Alaska served as a catalyst for the bill. MR. SHATTUCK relayed that a number of constituents and groups expressed interest in the issue after the question was raised in several cases in the Lower 48. 1:39:54 PM CHAIR FRENCH reviewed the bill packet and observed that it contained an impressive amount of supporting material and messages from across the state. Promising that the committee would conduct a detailed examination of the self defense law, he emphasized that the current law was reasonable and that it was a misconception that the duty to retreat means that a person has to give up in the face of a criminal attack. He asked Ms. Carpeneti to provide an overview of the self defense law as it currently stands. 1:41:18 PM ANNE CARPENETI, Assistant Attorney General representing the Criminal Division, Department of Law (DOL), said the first thing to understand is that self-defense is a defense which the state has to disprove beyond a reasonable doubt. CHAIR FRENCH posed a hypothetical situation to clarify the meaning of that statement. A mother with two children is carrying groceries to her car and is beset by a robber in the parking lot. Believing the man is armed, she uses her own gun to shoot him. The district attorney's office has to screen that case and decide whether or not to accept a charge of homicide against the mother. MS. CARPENETI added that the screening decision in that example would be not to prosecute the woman, because in Alaska the duty to retreat only applies when a person knows that he or she can retreat in complete safety to him or herself and others they are protecting. CHAIR FRENCH summarized that the DA would make the decision not to prosecute because no crime had occurred. It was a lawful use of self-defense under current Alaska law. MS. CARPENETI replied that is correct. CHAIR FRENCH asked if Senator Coghill, for example, would be authorized to shoot and kill the attacker, assuming the woman was unarmed and he saw a gun in the attacker's hand. MS. CARPENETI confirmed that he would not have the duty to retreat under that circumstance. If he had reasonable belief that the woman was in danger he could use deadly force to protect the woman and her children. CHAIR FRENCH asked if in the second scenario the duty to retreat pertains to the victim and not so much to Senator Coghill. The issue is whether the victim can get away. MS. CARPENETI confirmed that was correct. CHAIR FRENCH read the current law under AS 11.81.335(b) "A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity..." He adjusted the hypothetical to illustrate that every situation has to be analyzed. In this instance the woman is walking to her car and a man gets out of another car that is parked 20 yards away. The man has a gun. He asked what the obligation would be under that scenario. MS. CARPENETI agreed that ever situation is different and each has to be analyzed on its facts. If Senator Coghill had reasonable belief that there was deadly danger to that woman, he would have the right to use the defense of third parties in defense of others. Under that circumstance he would not have the duty to retreat. 1:45:26 PM MR. SHATTUCK agreed with Ms. Carpeneti and highlighted that there are both objective and subjective considerations. He noted that Justice Oliver Wendell Holmes questioned how subjective a person needed to be when the objective justification was that there was a gun in your face. CHAIR FRENCH agreed that Justice Oliver Wendell Holmes said there is no duty to retreat under certain circumstances. He said, "detached reflection cannot be demanded in the presence of an uplifted knife." That is common sense and the current law in the state of Alaska. Senator Coghill would not be expected to go through a calculated analysis of the situation. If he sees someone being beset by an armed robber, he can kill that robber and the Department of Law would not prosecute. If he were prosecuted, Senator Coghill would go to court with the legal advantage of the state not only having the burden of convicting him beyond a reasonable doubt, but also of disproving his self- defense claim beyond a reasonable doubt. CHAIR FRENCH said he was going through this in detail because of the seeming misperception that people cannot already exercise the right of self-defense. That is not the case; people in the state of Alaska have an absolute right to defend themselves. 1:48:40 PM BRIAN JUDY, Senior State Liaison, National Rifle Association - Institute for Legislative Action (NRA-ILA), Sacramento, California, stated strong support for HB 80. He relayed that the sponsor suggested that he hold his testimony until the next hearing when the full committee and the sponsor could be present. He offered to answer questions as they came up during this hearing. CHAIR FRENCH asked if he had any comment about what he'd heard today, and if the NRA had any good examples of an innocent person being prosecuted for homicide when a bill like this would have prevented such a prosecution. MR. JUDY confirmed that the bill was not introduced based on any specific circumstance; it was brought on the philosophical discussion nationwide on the issue of self defense. He acknowledged that existing Alaska law provides that there is no duty to retreat if a person is justified and on premises they own, lease, reside, or work. However, the NRA's position is that if a person is out in public where they have a right to be and they are justified, they should not have to go through that mental exercise as to whether or not they can retreat with complete safety. He urged caution in saying there is an absolute right to defend oneself. The prosecutor is going to consider whether the person was justified and whether the person could retreat with complete safety so the person in the circumstance has to consider that as well in deciding whether to employ deadly force. 1:53:59 PM CHAIR FRENCH asked if the NRA had analyzed what it means to have a right to be in a particular place. For example, does a person that goes to Disneyland or the movies have a right to be there or are they there as a guest or at the permission of the corporate or business owner. MR. JUDY replied the NRA's analysis would be that a person who is not trespassing and has the legal right to be in a place would be covered under the provisions of HB 80. He acknowledged that private property owners have a right to impose limitations on the use of their property, and that the limitations are different when the private property is closed to the public as opposed to private property that is open to the public. CHAIR FRENCH asked the public defender if passage of HB 80 would essentially remove the duty to retreat from Alaska law. 1:57:05 PM QUINLAN STEINER, Director, Public Defender Agency, Department of Administration (DOA), advised that there would be a remaining duty to retreat in situations like trespass where a person did not have a legal right to be there. CHAIR FRENCH asked if he would agree that a person who was in a parking lot that was closed to the public for the night would not have a legal right to be in that parking lot. MR. STEINER responded that if someone were charged under that circumstance there would probably be litigation about whether or not the person had the duty to retreat. CHAIR FRENCH observed that the first question is whether or not the person had a legal right to be in the parking lot, and once that is resolved it would be clear whether or not the person had a duty to retreat. MR. STEINER responded that in the instance where somebody has used deadly force, the preliminary question is whether or not he or she had that authority. He opined that it's in that regard that HB 80 may have no impact. Under the statute the two events are theoretically mutually exclusive. If a person can retreat in total safety, he or she does not have the authority to use deadly force. If a person has the authority to use deadly force, arguably there are no circumstances under which he or she could retreat in total safety. CHAIR FRENCH asked if the Public Defender Agency had a position on the bill. MR. STEINER said no. SENATOR COGHILL said he will be looking at the issue from two perspectives. One is how the courts will interpret the statute and the other is how the public will interpret their rights under the statute. CHAIR FRENCH agreed that people will look to the law for direction and it should be as clear as possible. 2:02:25 PM CHAIR FRENCH announced he would hold HB 80 in committee.