Legislature(2009 - 2010)HOUSE FINANCE 519

04/08/2010 09:00 AM House FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 381(JUD) Out of Committee
Moved CSHB 408(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
HOUSE BILL NO. 381                                                                                                            
     "An Act relating to self defense."                                                                                         
HOUSE BILL NO. 408                                                                                                            
    "An Act relating to misconduct involving weapons."                                                                          
9:10:41 AM                                                                                                                    
REPRESENTATIVE JAY  RAMRAS, SPONSOR, called  the legislation                                                                    
[HB  408] a  restoration  of rights  and  explained that  it                                                                    
would  create   an  alignment  between  federal   and  state                                                                    
statute.  The measure  related to  felons convicted  of non-                                                                    
violent crimes  as long as  40 years  ago who have  not been                                                                    
able  to possess  a gun.  He  referred to  testimony in  the                                                                    
House Judiciary Committee.                                                                                                      
Representative  Ramras reminded  the  committee of  previous                                                                    
legislation  related  to  minors  consuming  alcohol;  those                                                                    
affected were not able to  join the military until they were                                                                    
21 years  of age because  of probationary status set  by the                                                                    
state of Alaska, and an  alignment between state and federal                                                                    
law was necessary.  He believed there was a  similar lack of                                                                    
alignment  between  state and  federal  law  related to  gun                                                                    
Representative Ramras continued that  Alaska is assertive in                                                                    
restoring   rights  but   maintains   a  few   prohibitions,                                                                    
including AS 11.61.200(g) and (b)  prohibiting a person from                                                                    
carrying a concealed firearm. The  federal law says that all                                                                    
rights  must  be  restored; although  people  have  regained                                                                    
rights in  Alaska, without the alignment,  the rights cannot                                                                    
be applied.                                                                                                                     
Co-Chair Stoltze thought the titles brought up concerns.                                                                        
9:14:15 AM                                                                                                                    
Representative  Ramras explained  that under  Alaska law,  a                                                                    
person  convicted  of  a  felony   is  not  prohibited  from                                                                    
possessing  a  rifle  or shotgun.  However,  the  person  is                                                                    
prohibited  from  possessing  a  firearm  capable  of  being                                                                    
concealed and  prohibited from possessing a  firearm that is                                                                    
actually concealed.  In other words, an  Alaskan cannot have                                                                    
a  handgun  and  cannot  conceal it.  Alaska  law  currently                                                                    
provides an  affirmative defense for an  ex-felon for either                                                                    
of  the crimes  of a  felon in  possession of  a concealable                                                                    
firearm or a  felon in possession of a  concealed firearm. A                                                                    
person  meeting   one  of  three  conditions   can  use  the                                                                    
affirmative defense  to prove their innocence  in court. The                                                                    
conditions are:                                                                                                                 
   · The person has received a pardon.                                                                                          
   · The conviction has been set aside.                                                                                         
   · A period of ten years has passed since the person was                                                                      
     charged with the crime.                                                                                                    
Representative  Ramras   noted  that   the  state   makes  a                                                                    
distinction  between violent  and non-violent  crimes. Under                                                                    
federal law, a  person convicted by a crime  punishable by a                                                                    
term of imprisonment for more  than one year may not possess                                                                    
a  firearm.  However, federal  law  also  provides that  any                                                                    
conviction that has  been expunged, set aside,  or for which                                                                    
a  person  has  been  pardoned or  had  their  civil  rights                                                                    
restored shall not be considered  a conviction unless it has                                                                    
been expressly  provided that the  person shall  not possess                                                                    
Representative  Ramras pointed  out that  the state  and the                                                                    
federal  government track  similarly, but  unless a  perfect                                                                    
alignment is  created, the  rights of  Alaskans will  not be                                                                    
restored. He  referred to  an interpretation  resulting from                                                                    
the 1998  U.S. Supreme Court  case (Caron v.  United States)                                                                    
which mentions  an "all or  nothing" test. He  asserted that                                                                    
the standard was  the root of the legislation  and should be                                                                    
the objective.  Current Alaska law contains  two limitations                                                                    
on persons  who have  had their  rights to  possess firearms                                                                    
otherwise restored:  the possession  of a  concealed firearm                                                                    
on  their  dwelling  property or  when  engaged  in  outdoor                                                                    
activity; and  the affirmative defense for  a person charged                                                                    
with  possessing   a  concealable  firearm  or   carrying  a                                                                    
concealed  firearm if  they have  been pardoned,  received a                                                                    
suspended sentence,  or if  ten years  has elapsed  since an                                                                    
unconditional discharge.                                                                                                        
Representative   Ramras  argued   that  unless   the  Alaska                                                                    
legislature   amends  existing   law  to   modify  the   two                                                                    
limitations,  the existing  policy allowing  for restoration                                                                    
of rights cannot be carried  out. He underlined that without                                                                    
amendment, Alaskans  who had rights restored  many years ago                                                                    
cannot  participate in  the  enjoyment  of Second  Amendment                                                                    
rights.  He noted  that the  measure would  apply to  a full                                                                    
spectrum  of  Alaskan  lifestyles, including  Natives,  non-                                                                    
Natives, rural, and urban Alaskans.                                                                                             
9:17:53 AM                                                                                                                    
Representative Joule  expressed support for  the legislation                                                                    
and described  the experience of  a person who was  not able                                                                    
to carry a  weapon even to protect himself  and others, even                                                                    
though  he  was  a search-and-rescue  pilot.  Representative                                                                    
Ramras  agreed  that  the  prohibition  was  unnecessary  in                                                                    
Representative  Gara asked  whether  the  Department of  Law                                                                    
(DOL)  would testify  on  the  issue. Representative  Ramras                                                                    
responded that the  committee would hear a  policy call from                                                                    
DOL.  He  reported  that in  the  Judiciary  Committee,  DOL                                                                    
addressed  the question  of switching  the  burden of  proof                                                                    
when  someone from  another state  had rights  restored. The                                                                    
Judiciary Committee  had decided  the policy call  should be                                                                    
for the benefit of the  kind of Alaskans that Representative                                                                    
Joule depicted and not those brought up by DOL.                                                                                 
Representative Gara stated that he  wanted to talk to DOL to                                                                    
understand the  legislation, not  to ascertain  its position                                                                    
on the legislation.                                                                                                             
Co-Chair  Stoltze noted  that there  would be  testimony [by                                                                    
DOL] connected to another [related] bill [HB 381].                                                                              
9:21:14 AM                                                                                                                    
REPRESENTATIVE MARK  NEUMAN, SPONSOR, presented HB  381. The                                                                    
legislation  would expand  the rights  of Alaskans  to stand                                                                    
their  ground  in  self-defense from  just  their  home  and                                                                    
workplace while defending members  of their household to any                                                                    
place  where they  have a  right  to be.  He explained  that                                                                    
current  law  permits the  use  of  deadly force  for  self-                                                                    
defense in a few specific  instances (when threatened with a                                                                    
crime,  murder,   rape,  kidnapping,  physical   injury,  or                                                                    
robbery),  but  Alaska  law  states that  a  person  is  not                                                                    
justified in  using deadly force  if provoking  someone with                                                                    
the intent of causing a threat.                                                                                                 
Representative Neuman  detailed that  a person can  be tried                                                                    
for deadly force if they  provoke an attack while engaged in                                                                    
criminal  behavior such  as a  gang-related shooting.  There                                                                    
must be  justification in using  deadly force; HB  381 would                                                                    
not  change  those statutes.  Current  law  requires that  a                                                                    
person must  retreat when  possible even  if they  are faced                                                                    
with or  involved in a  serious crime. This means  that even                                                                    
when it is beyond dispute  that a person was threatened with                                                                    
the use of  deadly force, a person can be  brought to trial.                                                                    
He  relayed the  experience of  a minister  who used  deadly                                                                    
force defending his church and ended up in prison.                                                                              
Representative  Neuman  understood   that  the  courts  were                                                                    
addressing the issue of the  ability to retreat. He believed                                                                    
the determination  had to  be made in  a split  second under                                                                    
threat. He  wanted clarification.  He believed a  person who                                                                    
is threatened  while somewhere they  have a right to  be has                                                                    
the  right to  defend  themselves and  not  be victimized  a                                                                    
second time in court. He  maintained that he had worked with                                                                    
the Judiciary Committee to make the bill better.                                                                                
Co-Chair Stoltze informed  the committee that HB  408 and HB
381  would be  dealt  with separately  but public  testimony                                                                    
would be  taken on both at  the same time. He  opened public                                                                    
9:24:51 AM                                                                                                                    
BRIAN   JUDY,   ALASKA   STATE   LIAISON,   NATIONAL   RIFLE                                                                    
ASSOCIATION (NRA) (via teleconference),  spoke in support of                                                                    
both  HB  408  and  HB   381.  Beginning  with  HB  408,  he                                                                    
emphasized that  the bill was  not about giving  firearms to                                                                    
felons, as  the state  already has  the policy  of restoring                                                                    
firearm  rights to  former offenders.  The right  to possess                                                                    
rifles  and shotguns  is restored  immediately upon  release                                                                    
from incarceration. A person's  right to possess handguns is                                                                    
restored if they receive a  pardon, if the conviction is set                                                                    
aside,  or after  ten years  of an  unconditional discharge.                                                                    
With the right to possess  handguns comes the right to carry                                                                    
handguns openly anywhere  in the state. Third,  the right to                                                                    
carry concealed  weapons is restored; however,  the right is                                                                    
limited  to a  person's home,  property, or  where they  are                                                                    
engaged  in  lawful  activity   such  as  hunting,  fishing,                                                                    
camping, and so on.                                                                                                             
Mr. Judy  informed the committee  that currently  95 percent                                                                    
of  an individual's  rights are  restored by  the state.  He                                                                    
noted that  the only  real restriction  imposed on  a person                                                                    
whose rights were  restored is that the  person cannot cover                                                                    
a  handgun (such  as with  a coat)  that they  can otherwise                                                                    
legally carry openly outside their  home, property, or while                                                                    
engaged  in lawful  activities anywhere.  He added  that the                                                                    
right to  vote, the  right to hold  office, and  jury rights                                                                    
are restored as well.                                                                                                           
Mr. Judy explained that because  of a complicated, technical                                                                    
interaction between  state law and federal  law, persons who                                                                    
have  had all  the listed  rights restored  by the  state of                                                                    
Alaska are  still not  recognized as  having any  rights for                                                                    
the  purpose of  federal  law because  of  the U.S.  Supreme                                                                    
Court decision  in Caron  v. United States  and the  "all or                                                                    
nothing test"  discussed by Representative Ramras  that must                                                                    
be  applied.  The court  ruling  stipulated  that any  state                                                                    
weapon  limitation  activates  the uniform  federal  ban  on                                                                    
possessing  any firearms.  Because  Alaska does  not go  the                                                                    
last step  and allow people  to carry concealed  weapons any                                                                    
place they can  carry openly, the people have  no rights. He                                                                    
emphasized  that HB  408 would  take people  from having  95                                                                    
percent   of  their   rights  to   100  percent;   from  the                                                                    
perspective of  the federal government, they  would be taken                                                                    
from  zero to  100 percent.  He agreed  that the  bill would                                                                    
achieve an alignment of state and federal law.                                                                                  
Mr.  Judy reported  that the  NRA  hoped that  with HB  408,                                                                    
legislators  could  get  beyond   the  perceived  stigma  of                                                                    
"giving firearms  to felons" and  realize the  legitimacy of                                                                    
allowing  people who  have  long since  paid  their debt  to                                                                    
society  to   attain  the  restoration  of   rights  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.                                                                                                         
Mr. Judy spoke to HB 381.  He noted that existing Alaska law                                                                    
provides that  there is no  duty to  retreat if a  person is                                                                    
facing criminal attack  on premises that they  own or lease,                                                                    
or where  they preside  or work. The  bill would  extend the                                                                    
rights to any place a person  has a legal right to be. Under                                                                    
HB  381, a  person who  is attacked  while walking  down the                                                                    
street  would have  no  duty to  retreat;  they could  stand                                                                    
their ground and  fight, and meet force with  force. The NRA                                                                    
believed the measure made common  sense. Under existing law,                                                                    
a  person faced  with  criminal attack  outside their  home,                                                                    
property, or business must ask  two questions: whether there                                                                    
is justification  to use deadly  force in  self-defense, and                                                                    
whether they  can with  complete safety  leave the  area and                                                                    
give ground  to the attacker.  The bill would take  away the                                                                    
second determination.  He emphasized that there  would be no                                                                    
impact on  justification; a person  still must  be justified                                                                    
in employing  self-defense. Under current law,  a person who                                                                    
resists an  aggressor bears the  risk of a finding  in court                                                                    
that  although  their  response   was  proportional  to  the                                                                    
reasonably-perceived   threat,    they   overestimated   the                                                                    
difficulty of getting away and  therefore were not justified                                                                    
in  reacting with  defense of  force.  Removing the  retreat                                                                    
provision shifts  some of the  risk calculation back  to the                                                                    
aggressor.  The NRA  believes that  victims should  have the                                                                    
protection  of  law,  not  criminals;  law-abiding  citizens                                                                    
should  not fear  criminal prosecution  and be  victimized a                                                                    
second time by the criminal justice system.                                                                                     
Mr. Judy  noted that  in past  hearings, the  opposition has                                                                    
suggested  that the  law would  increase violence  in Alaska                                                                    
and could  encourage the needless  taking of human  life. He                                                                    
pointed out that  the same law had been enacted  in at least                                                                    
sixteen other states without increasing violence.                                                                               
Mr.  Judy maintained  that the  "sanctity of  life" argument                                                                    
used by opposition  went both ways. He  believed sanctity of                                                                    
life issues were less compelling  when the person whose life                                                                    
was taken  was behaving in  such a  way that the  person who                                                                    
took their  life "reasonably" feared being  raped or killed,                                                                    
which  is  required  under  the  justification  statute.  He                                                                    
asserted that  rapists are  not deterred  by rape  laws, but                                                                    
the hesitation of  a law-abiding victim to  apply defense of                                                                    
force  while considering  retreat  capability  may mean  the                                                                    
difference between life and death.                                                                                              
9:33:41 AM                                                                                                                    
Representative Gara  did not want  to debate issues  that he                                                                    
did not think were  debatable. Currently, the law stipulates                                                                    
that a person in the middle of  a rape or robbery has a duty                                                                    
to  self-defense and  can shoot  the assailant.  He asserted                                                                    
that the  legislation would not  change that. A  person only                                                                    
has to retreat when it is  100 percent clear that the person                                                                    
can retreat  with complete personal safety.  He believed the                                                                    
facts  were  muddled. He  suggested  that  there were  other                                                                    
circumstances in which the bill  could be useful and needed.                                                                    
He  queried the  existence  of cases  in  which someone  was                                                                    
convicted for defending themselves in the middle of a rape.                                                                     
Mr. Judy distinguished between the  beginning and the middle                                                                    
of a rape. He understood  Representative Gara's point: under                                                                    
existing law a  person who can retreat  with complete safety                                                                    
is required to do so. He  felt that the victim would have to                                                                    
make  another decision  in  the life-or-death,  split-second                                                                    
circumstance:  whether  they  could  retreat  with  complete                                                                    
safety  before  the  rape happened.  He  asserted  that  the                                                                    
legislation would  not modify the justification;  however, a                                                                    
person  could be  found to  have been  justified, but  could                                                                    
also be found  to have overestimated the  ability to retreat                                                                    
and could be charged with a crime.                                                                                              
Representative  Gara stated  that he  was not  aware of  any                                                                    
circumstance  in which  a  person in  a  rape situation  was                                                                    
charged  with  inappropriately  defending  themselves  under                                                                    
existing law. He reiterated concerns.                                                                                           
9:37:30 AM                                                                                                                    
RICHARD  PATTERSON, BUSH  PILOT,  KOTZEBUE  AND BARROW  (via                                                                    
teleconference), spoke in support of  HB 408. He provided an                                                                    
overview  of  his  experience  in  Alaska  as  a  pilot.  He                                                                    
informed the committee of past  mistakes he had made; he had                                                                    
gotten  help,  corrected  his ways,  and  become  a  helpful                                                                    
citizen.  He  asserted  that executive  clemency  (which  he                                                                    
received) is  vested solely in  the executive branch  and is                                                                    
assured by  the separation  of powers doctrine  (Handbook of                                                                    
Alaska State Government, page 4).  The clemency power of the                                                                    
governor is  guaranteed by the Alaska  Constitution, Article                                                                    
III,  subpart  21,  which  all  legislators  have  sworn  to                                                                    
protect and defend.                                                                                                             
Mr. Patterson  stressed that the  governor has  absolute and                                                                    
unfettered authority  to pardon under the  law. The clemency                                                                    
process is long and arduous  and rarely granted; it has only                                                                    
been granted  twice since 1995.  Extraordinary circumstances                                                                    
and exemplary rehabilitation must be proved.                                                                                    
Mr. Patterson described the pardon  he had been given, which                                                                    
specifically  restored   his  right   to  possess   and  use                                                                    
handguns. He read from Alaska's Clemency Handbook:                                                                              
     A  pardon is  a form  of executive  clemency, which  if                                                                    
     full  and  unconditional   relieves  an  offender  from                                                                    
     further punishment  and disabilities imposed  by reason                                                                    
     of  a criminal  offense. It  is an  act of  grace which                                                                    
     represents forgiveness for a particular crime.                                                                             
Mr. Patterson  noted that  both state  and federal  law rule                                                                    
that  words  are to  be  interpreted  according to  ordinary                                                                    
meaning   and  both   recognize  the   pardon's  valid   and                                                                    
restorative power regarding firearms.  He argued that even a                                                                    
person wrongfully  convicted and pardoned could  not possess                                                                    
firearms currently  under AS 11.61.200.  He did  not believe                                                                    
distant officials  could understand what  it was like  to be                                                                    
stalked by  grizzly or  polar bears,  or to,  unarmed, clear                                                                    
the area  around his home  of dangerous animals so  that his                                                                    
children could  safely get  to school.  He thought  case law                                                                    
had been misinterpreted and applied incorrectly.                                                                                
Mr.  Patterson maintained  that he  still endured  the worst                                                                    
punishment  of all,  in spite  of the  pardon: the  right to                                                                    
defend his life and the lives  of those around him. He noted                                                                    
that  other  states  have   similar  statutes  that  restore                                                                    
firearm  rights  to  fully-pardoned state  ex-offenders.  In                                                                    
addition,  presidential pardons  restore  firearm rights  to                                                                    
federal  ex-offenders. He  stressed  that the  ramifications                                                                    
are great, even  if the numbers of people  affected might be                                                                    
Mr. Patterson described  the risks of serving  others in the                                                                    
Arctic while not being adequately prepared.                                                                                     
9:42:37 AM                                                                                                                    
Representative Joule acknowledged Mr. Patterson's effort.                                                                       
ERIC STANLEY,  KENAI (via teleconference), spoke  in support                                                                    
of  HB  408.  He  agreed with  the  previous  testifier.  He                                                                    
described experience of not being  able to defend or protect                                                                    
his  family while  engaging  in  subsistence activities.  He                                                                    
acknowledged  past mistakes  and  believed he  had paid  his                                                                    
debt to  society. He  thought people  saw felons  as violent                                                                    
people, comparable  to pit bulls,  but asserted that  he was                                                                    
not  a  violent person.  He  believed  people who  had  made                                                                    
mistakes in the  past and were convicted of a  felony have a                                                                    
label that burdens them.                                                                                                        
9:45:41 AM                                                                                                                    
WAYNE  A. ROSS,  ATTORNEY,  ANCHORAGE (via  teleconference),                                                                    
spoke in support  of both HB 408 and HB  381. He believed HB
408  would affect  subsistence hunters  who have  paid their                                                                    
debt  to society  but  cannot  own a  gun,  even though  the                                                                    
legislature has  said they can  under state law.  He pointed                                                                    
out that  the legislation would  affect people who  have had                                                                    
pardons but  still cannot bear  arms. He called  the measure                                                                    
the "Stand Up for Alaskans" bill.                                                                                               
TRAVIS   MAXIM,   CO-OWNER,   SECURETRANS   ARMORED,   INC.,                                                                    
ANCHORAGE (via  teleconference), testified in support  of HB
408.  He relayed  experience with  an employee  who was  not                                                                    
allowed to  bear arms because  of a  past charge for  a non-                                                                    
violent  theft. He  thought  there was  a  lot of  confusion                                                                    
about  the  current law,  evidenced  by  how the  state  had                                                                    
handled the employee's licensing  requirement. The state had                                                                    
said  the employee  was  allowed to  carry  a firearm  while                                                                    
working  as an  armed guard.  The state  then said  he could                                                                    
work,  but would  not  be  issued a  license,  based on  his                                                                    
criminal record. Two years went  by at that status, and then                                                                    
he was told  he could not carry a handgun.  His job duty was                                                                    
changed to  inside the building,  where he would not  need a                                                                    
handgun, while  anticipating his ability  to carry a  gun at                                                                    
the ten-year mark,  as the state had  promised. However, the                                                                    
employee  had just  completed the  ten-year period,  but the                                                                    
state changed  direction and determined that  he would never                                                                    
be  allowed  to carry  a  firearm.  He  hoped HB  408  would                                                                    
rectify the situation.                                                                                                          
9:50:50 AM                                                                                                                    
BILL SATTERBERG,  FAIRBANKS (via  teleconference), testified                                                                    
in support of HB 408.  He thought the measure was important.                                                                    
He thought there  was a problem in Alaska  related to people                                                                    
who  have  made  mistakes  in their  youth  for  which  they                                                                    
received  a  suspended  imposition  of  sentence  (SIS).  He                                                                    
emphasized that the crimes discussed  were not those against                                                                    
people but  against property.  The people  had been  told by                                                                    
the  courts, by  counsel,  and by  Probation  and Parole  up                                                                    
until last April  that they would have  their weapons rights                                                                    
restored upon completion  of an SIS, upon  completion of the                                                                    
ten-year period, or upon receiving  a pardon. He thought the                                                                    
problem  was  that state  law  says  that  a person  can  be                                                                    
charged with misconduct involving  a weapon, but showing the                                                                    
SIS, ten-year passage, or pardon  is an affirmative defense.                                                                    
The defendant  has to come forward  and prove affirmatively;                                                                    
the standard of proof is lower,  but still must be raised by                                                                    
the defendant and overcome by  the state. On the other hand,                                                                    
the federal law does  not recognize the affirmative defense.                                                                    
Therefore the  problem is that  the federal  government says                                                                    
that unless there  is a complete parallel  between the state                                                                    
and  federal systems,  the state  law  cannot recognize  any                                                                    
type of  exception. The exception is  an affirmative defense                                                                    
under  state  law  but  not  recognized  under  the  federal                                                                    
system.  As a  result, there  have been  numerous people  in                                                                    
Alaska who have  been unable to get  weapons rights restored                                                                    
because  the  interpretation  even  by  the  state  attorney                                                                    
general  is  that federal  law  precludes  the ownership  of                                                                    
weapons and does not recognize the affirmative defense.                                                                         
Mr.  Satterberg believed  that the  current  revision was  a                                                                    
good and  necessary one.  He stated  concerns that  it might                                                                    
not  make it  through  the legislative  process. He  thought                                                                    
people   who   had   made   previous   mistakes   but   have                                                                    
rehabilitated should  have rights. He urged  passage to make                                                                    
the  people  law-abiding  citizens.  He  asserted  that  the                                                                    
effect in rural areas was serious.                                                                                              
9:55:07 AM                                                                                                                    
Representative Gara  encouraged him  to keep  advocating for                                                                    
the bill.                                                                                                                       
Co-Chair  Stoltze referred  to  similar  legislation in  the                                                                    
Mr.  Satterberg questioned  those  in DOL  who believe  that                                                                    
there would  be problems  prosecuting the cases.  He thought                                                                    
that the government  had the burden of  proving guilt beyond                                                                    
a reasonable doubt.                                                                                                             
C.  E.  TANNER,  ANCHORAGE (via  teleconference),  spoke  in                                                                    
support of HB  408 and HB 381. He relayed  his experience as                                                                    
a  40-year   resident  of  Alaska.   He  noted   an  earlier                                                                    
conviction  for a  crime; upon  release he  applied for  and                                                                    
received a  federal firearms  relief from  disability, which                                                                    
restored all  of his  rights to  firearms. After  ten years,                                                                    
the concealed-weapon legislation came  along. He applied and                                                                    
received a concealed-carry  permit, with subsequent renewals                                                                    
over the  years until  last year.  The Department  of Public                                                                    
Safety denied renewal  of the permit based  on the confusion                                                                    
in AS  11.61.200. He  felt that  he was  being discriminated                                                                    
against and should receive the renewal.                                                                                         
MIKE  MILLIGAN,   KODIAK  (via   teleconference),  testified                                                                    
against HB 381.  He relayed experience using  guns for self-                                                                    
protection from bears. He referred  to the Second Amendment,                                                                    
which begins  with a well-regulated militia.  He opined that                                                                    
guns were too often used to solve problems.                                                                                     
Mr.  Milligan   explained  that   he  personally   had  been                                                                    
threatened  with  deadly  force. He  thought  more  systemic                                                                    
questions needed  to be  asked. He  believed taking  a human                                                                    
life was very  serious. He reviewed history in  the West and                                                                    
spoke  of  a  town  that  thrived  after  passing  a  no-gun                                                                    
ordinance. He did  not think all guns were bad;  they have a                                                                    
place in the  defense of property, but  he cautioned against                                                                    
using guns to solve all problems.                                                                                               
10:01:24 AM                                                                                                                   
ROD  ARNO,  EXECUTIVE   DIRECTOR,  ALASKA  OUTDOOR  COUNCIL,                                                                    
PALMER, testified in support of both  HB 381 and HB 408.  He                                                                    
detailed  that the  Alaska Outdoor  Council represents  over                                                                    
10,000 Alaskans  and is a  state affiliate with the  NRA. He                                                                    
related that  the organization  supports anything  that will                                                                    
allow members  to carry  a concealed  weapon or  firearm for                                                                    
personal protection.  He thought food security  might become                                                                    
an issue.                                                                                                                       
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION-JUNEAU,  CRIMINAL DIVISION,  DEPARTMENT OF  LAW (via                                                                    
teleconference),  testified  regarding  HB 408.  She  stated                                                                    
that the  department was concerned that  bringing Alaska law                                                                    
into conformance  with the requirements of  the U.S. Supreme                                                                    
Court would  make it difficult  to prosecute  people charged                                                                    
with carrying  a concealed  weapon as  a felon.  She assured                                                                    
the  committee that  she understood  the  situation of  law-                                                                    
abiding citizens.                                                                                                               
Representative  Salmon  asked   when  the  ten-year  waiting                                                                    
period would start and what  proof would be required to show                                                                    
that the time period was over.                                                                                                  
10:05:28 AM         RECESSED                                                                                                  
10:15:54 AM         RECONVENED                                                                                                
Ms. Carpeneti replied that the  statute stipulates ten years                                                                    
from the  date of  defendant's unconditional  discharge; ten                                                                    
years would  have to  elapse from  when the  person finishes                                                                    
probation  or  parole.  She assumed  a  statement  could  be                                                                    
obtained from  a probation parole  officer to  establish the                                                                    
Representative  Salmon  queried  the proof  required  for  a                                                                    
person  to restore  their  rights.  Ms. Carpeneti  responded                                                                    
that a statement  would be required showing  that the period                                                                    
of probation or parole ended on a certain date.                                                                                 
Representative Gara  had technical  questions related  to HB
408.  He pointed  to  Section 2,  which  appeared to  repeal                                                                    
three statutes; he  thought at least one  was something that                                                                    
would not be a crime any  more. He stated concerns. He asked                                                                    
what would  be repealed  related to AS  11.61.200(a)(12) and                                                                    
why.  Ms. Carpeneti  responded that  HB 408  would repeal  a                                                                    
prohibition against a person  knowingly possessing a firearm                                                                    
that  is  concealed  on  their   person  after  having  been                                                                    
convicted of  a felony  (or conduct that  would be  a felony                                                                    
for  an adjudicated  delinquent).  She added  that it  would                                                                    
still  be  against  the  law  under  AS  11.61.200(a)(1)  to                                                                    
possess a firearm capable of being concealed.                                                                                   
10:19:53 AM                                                                                                                   
Representative  Gara  asked  whether the  rights  of  people                                                                    
other  than  felons-in-possession  could  be  hampered.  Ms.                                                                    
Carpeneti  replied   that  DOL   was  concerned   about  the                                                                    
provision.  She stated  that the  department was  neutral on                                                                    
the  bill but  has concerns  about the  effect of  the bill,                                                                    
including the one that was being discussed.                                                                                     
Representative Gara  asked which  crime the state  would not                                                                    
able to prosecute if AS  11.61.200(a)(12) were repealed. Ms.                                                                    
Carpeneti  responded that  the state  would not  be able  to                                                                    
prosecute a person carrying a  concealed weapon after having                                                                    
been  convicted  of  a felony  (or  adjudicated  delinquent)                                                                    
under the  particular provision,  but could  still prosecute                                                                    
under AS 11.61.200(a)(1), which  covers possessing a firearm                                                                    
capable of being concealed.                                                                                                     
Representative  Gara questioned  whether anything  was being                                                                    
lost. He  clarified that  a person  could not  be prosecuted                                                                    
for  carrying   concealed,  but  could  be   prosecuted  for                                                                    
something capable  of being concealed. Ms.  Carpeneti agreed                                                                    
that   the    person   could   be   prosecuted    under   AS                                                                    
11.61.200(a)(1). She  added that  HB 408 would  provide that                                                                    
AS  11.61.200(a)(1)  would  not apply  to  certain  persons,                                                                    
including those  with an  SIS, a pardon,  or those  for whom                                                                    
ten years have elapsed since an unconditional release.                                                                          
Representative  Gara  queried  the next  provision  that  he                                                                    
believed would  no longer apply,  AS 11.61.200(f).  He asked                                                                    
whether the section was a  crime provision that HB 408 would                                                                    
eliminate. Ms.  Carpeneti replied no; AS  11.61.200(f) would                                                                    
provide that  for purposes of AS  11.61.200(a)(12); it would                                                                    
define what is meant by "concealed."                                                                                            
10:23:15 AM                                                                                                                   
Representative  Gara   asked  whether  the   department  had                                                                    
concerns  about  repealing  AS 11.61.200(f).  Ms.  Carpeneti                                                                    
replied that  the section describes  what is  concealed; she                                                                    
stated  that   if  AS  11.61.200(a)(12)  was   going  to  be                                                                    
repealed, subsection  (f) should be repealed  as well, since                                                                    
it applies to offenses under subsection (a)(12).                                                                                
Representative Gara queried the  third subsection that would                                                                    
be repealed, AS 11.61.200(g).  Ms. Carpeneti replied that AS                                                                    
11.61.200(g)  would have  the  same  affirmative defense  to                                                                    
carrying concealed  as described in AS  11.61.200(a)(12): if                                                                    
a person has an SIS, a  pardon, or if ten years has elapsed,                                                                    
as well as  having been in their own dwelling  or engaged in                                                                    
lawful   hunting  or   another  activity   that  necessarily                                                                    
involves   carrying  a   weapon  for   personal  protection.                                                                    
Repealing AS  11.61.200(a)(12) would allow a  felon to carry                                                                    
a  concealed  weapon even  if  they  are  not on  their  own                                                                    
property or engaged in hunting, fishing, or trapping.                                                                           
Representative Gara  summarized that current  law stipulated                                                                    
that  after  ten years  a  person  can  have a  firearm  for                                                                    
limited  purposes, such  as  in their  own  dwelling or  for                                                                    
hunting; under HB 408, after  ten years a person could carry                                                                    
concealed. Ms. Carpeneti agreed.                                                                                                
Representative Gara  did not know  that currently a  gun was                                                                    
allowed for home and field use.                                                                                                 
10:25:25 AM                                                                                                                   
JANE  PIERSON, STAFF,  REPRESENTATIVE JAY  RAMRAS, explained                                                                    
that  a person  did not  have the  right because  of federal                                                                    
law. Ms. Carpeneti agreed that  federal law was the problem.                                                                    
The department  was concerned that  changing a state  law to                                                                    
accommodate  a  federal law  that  does  not make  sense  in                                                                    
relation  to Alaska  law  would make  it  difficult for  the                                                                    
prosecution  to prove  beyond a  reasonable doubt  for other                                                                    
cases  of   a  felon  carrying  concealed.   The  department                                                                    
understood the  situation of people like  Mr. Patterson, but                                                                    
had concerns.                                                                                                                   
Representative   Gara  asked   for  more   information.  Ms.                                                                    
Carpeneti   responded  that   the  concern   was  that   the                                                                    
prosecution  would  have  to disprove  beyond  a  reasonable                                                                    
doubt for  current affirmative defenses (facts  in the hands                                                                    
of a person  charged with a crime). She  gave a hypothetical                                                                    
example of a  person pardoned in another  state twenty years                                                                    
prior; the department  would have to go find  the person who                                                                    
was  pardoned. Under  current law,  it  is the  duty of  the                                                                    
person  charged  to  show  proof   of  pardon  or  SIS.  She                                                                    
emphasized that the information is difficult to find.                                                                           
Representative Doogan asked why the  fiscal note was zero if                                                                    
the  issue  would  be  a problem  for  the  department.  Ms.                                                                    
Carpeneti did  not know the  answer and offered to  get more                                                                    
Co-Chair Stoltze pointed out that  the fiscal note said that                                                                    
enactment  of  the  bill was  not  anticipated  to  fiscally                                                                    
impact DOL.                                                                                                                     
Representative Doogan  thought there was a  problem with her                                                                    
assertion  that the  department  would have  more work.  Ms.                                                                    
Carpeneti agreed.                                                                                                               
10:29:43 AM                                                                                                                   
Representative Salmon  clarified the  meaning of "SIS"  as a                                                                    
suspended imposition of sentence.                                                                                               
Representative  Joule referenced  Ms. Carpeneti's  statement                                                                    
that the  bill was a worthy  effort but she was  not sure it                                                                    
was the  right approach.  He asked  what the  right approach                                                                    
would be. He queried her  proposed solution to the concerns.                                                                    
Ms. Carpeneti responded that the  department had not come up                                                                    
with a  solution to  the problem;  it cannot  change federal                                                                    
law or federal decision-making. The  issue was caused by the                                                                    
U.S.  Supreme Court  ruling on  the Caron  case, which  puts                                                                    
people  in a  difficult  situation. The  department was  not                                                                    
sure the proposals in HB 480 would justify the concerns.                                                                        
Ms. Pierson  informed the committee  that the bill  had gone                                                                    
through many drafts;  the proposed version was  the only way                                                                    
the  sponsor had  found that  could  work under  the law  as                                                                    
Ms. Carpeneti interjected that DOL  was not sure that HB 408                                                                    
would  satisfy federal  law. She  warned that  HB 408  could                                                                    
make the  difference, but she  did not  think it was  a sure                                                                    
10:33:54 AM                                                                                                                   
JAMES   HOTAI   WILLIAMS,   VALDEZ   (via   teleconference),                                                                    
testified in  support of  HB 408.  He thought  good citizens                                                                    
were being held  back from legally carrying a  gun. He urged                                                                    
passage of the legislation.                                                                                                     
Mr. Judy asserted that HB 408  was the only way to solve the                                                                    
problem.  He  emphasized  that  federal  law  took  people's                                                                    
rights away.  He thought  the bill  would restore  rights to                                                                    
people who had paid their debt to society.                                                                                      
Ms.  Pierson   believed  that  the   policy  call   was  the                                                                    
restoration  of rights  for ex-felons  who have  proved they                                                                    
can function appropriately in society.                                                                                          
Representative Gara clarified that  HB 408 would not restore                                                                    
rights to a  person who had committed a  personal crime with                                                                    
a  weapon. Ms.  Pierson agreed  that the  measure would  not                                                                    
restore  the  rights  of  a person  who  committed  a  crime                                                                    
against another person.                                                                                                         
Representative Gara  added that the crimes  covered were the                                                                    
subsection  AS 11.41  crimes,  including  murder, rape,  and                                                                    
violent assault. Ms. Pierson agreed.                                                                                            
Co-Chair Stoltze closed public testimony.                                                                                       
10:38:50 AM                                                                                                                   
Co-Chair  Hawker  MOVED  to  report  CSHB  408(JUD)  out  of                                                                    
Committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes.                                                                                                      
CSHB  408(JUD) was  REPORTED  out of  Committee  with a  "do                                                                    
pass" recommendation and  with attached previously published                                                                    
fiscal notes: FN1 (LAW), FN2 (DPS).                                                                                             
Co-Chair  Stoltze turned  the  committee's  attention to  HB
Representative  Neuman referred  to an  earlier question  by                                                                    
Representative  Gara. He  explained that  the issue  was the                                                                    
ability  to use  deadly force  before a  crime happens.  The                                                                    
bill (page  1, lines 8  to 12) would expand  current statute                                                                    
to  describe where  a person  has a  right to  be. A  person                                                                    
would have the right to  defense using deadly force anywhere                                                                    
they have  a legal right to  be, not just in  their home. He                                                                    
emphasized  that   the  offense  would  still   have  to  be                                                                    
justifiable. He  pointed out  that there  are other  ways to                                                                    
use deadly force besides using a gun.                                                                                           
Representative  Gara referred  to the  case with  the Mat-Su                                                                    
minister. He recalled  that the minister shot  the robber in                                                                    
the back as the robber ran  away; he did not want to justify                                                                    
Representative Doogan also wanted the question answered.                                                                        
Representative  Neuman agreed  that the  person was  shot in                                                                    
the back,  but added that  the person  running had a  gun in                                                                    
his pocket  and could have  shot back. The defendant  had to                                                                    
prove   in  court   that   the   deadly-force  defense   was                                                                    
justifiable; the court  found that it was. He  argued that a                                                                    
person has the  right to defense wherever they  have a legal                                                                    
right  to  be.  He  questioned  allowing  the  rights  of  a                                                                    
criminal to overrule the rights of an honest person.                                                                            
Representative  Gara  asked whether  HB  381  would have  an                                                                    
impact on  a case like  the one  being discussed in  which a                                                                    
person  shot a  fleeing robber  in the  back. Representative                                                                    
Neuman  replied that  the  bill would  not  affect the  case                                                                    
because the court had to  determine whether he was justified                                                                    
in  using   deadly  force.  He  maintained   that  the  bill                                                                    
addressed the duty to retreat.                                                                                                  
10:45:17 AM                                                                                                                   
Representative  Kelly opined  that HB  381 would  not change                                                                    
the discussed case. He believed  the bill would say a person                                                                    
on their  own property would  not have  to run. He  spoke in                                                                    
support of the legislation.                                                                                                     
Representative  Doogan wondered  where  a  person would  not                                                                    
have a right to be.                                                                                                             
Representative Gara  pointed out that laws  already in place                                                                    
that  do not  allow  shooting another  person  are aimed  at                                                                    
protecting  the victim,  but  also  preventing someone  from                                                                    
shooting another person for no good reason.                                                                                     
Co-Chair  Stoltze suggested  that the  case being  discussed                                                                    
might not be the best example.                                                                                                  
Representative  Neuman   acknowledged  that  the   case  was                                                                    
complex.  He  addressed   Representative  Doogan's  question                                                                    
about where  a person does not  have a right to  be. He gave                                                                    
the  example of  a  person  being in  a  yard  that was  not                                                                    
Representative Kelly  noted that  people had not  yet caught                                                                    
up with  the changes in  the CS  and asserted that  the bill                                                                    
had been changed  substantially. He pointed out  that HB 381                                                                    
was only about  not having a duty to run  from a place where                                                                    
a person has a legal right to be.                                                                                               
Ms.  Carpeneti reported  that the  department was  concerned                                                                    
that HB  381 would  increase violence in  Alaska. Currently,                                                                    
the duty  to retreat  is fairly limited;  a person  does not                                                                    
necessarily have a  duty to retreat, especially  if they are                                                                    
home, in  a place of  work, or  a guest in  another person's                                                                    
home. In  addition, self-defense  is a defense  under Alaska                                                                    
law;  the state  is  obliged to  prove  beyond a  reasonable                                                                    
doubt  that a  person knew  they could  retreat in  complete                                                                    
10:50:36 AM                                                                                                                   
Ms.  Carpeneti emphasized  that  currently a  person has  no                                                                    
duty to retreat if they are  being attacked by a rapist, for                                                                    
example,  unless they  can  do so  in  complete safety.  She                                                                    
reiterated that  DOL is concerned  that the bill  would help                                                                    
eliminate the duty to retreat  in Alaska, since a person has                                                                    
a  legal  right  to  be  anywhere,  except  where  they  are                                                                    
trespassing on another person's property.                                                                                       
Co-Chair   Stoltze  reported   that  communication   he  had                                                                    
received regarding the legislation  was not about the desire                                                                    
to  use deadly  force but  about  the long  legal process  a                                                                    
person has  to go through to  justify the use of  force. Ms.                                                                    
Carpeneti  responded that  prosecutors would  still have  to                                                                    
prove beyond  a reasonable doubt  that the victim  knew they                                                                    
could  retreat in  complete safety.  She  asserted that  the                                                                    
problem with  changing a  law across the  board was  that it                                                                    
would also  apply to criminals  and complex  situations such                                                                    
as a gang  shoot-out in a public parking  lot where everyone                                                                    
involved is where they have a right to be.                                                                                      
Representative Gara  queried whether the  only circumstances                                                                    
addressed  by the  bill were  cases related  to self-defense                                                                    
against death,  serious physical injury,  kidnapping, sexual                                                                    
assault, sexual abuse  of a minor, or robbery  (listed in AS                                                                    
11.81.335(a)).  Ms.  Carpeneti  replied  that  the  duty  to                                                                    
retreat  applies  to  situations  in which  a  person  would                                                                    
otherwise be  justified to  use deadly  force, but  they can                                                                    
retreat  in  complete  safety.  A person  first  has  to  be                                                                    
justified to use force at  all in self-defense; a person can                                                                    
use  deadly  force to  defend  self  or others  against  the                                                                    
listed circumstances when the duty to retreat applies.                                                                          
Representative  Gara  summarized  that the  places  where  a                                                                    
person  could  potentially  be   justified  were  the  seven                                                                    
situations listed;  otherwise, the duty to  retreat applies.                                                                    
Ms. Carpeneti agreed.                                                                                                           
Representative Gara  asked whether currently a  person has a                                                                    
duty to retreat when it is clear they can do so safely.                                                                         
10:55:36 AM                                                                                                                   
Ms. Carpeneti replied  that it must be clear  and the person                                                                    
must know  that they  can retreat safely;  if the  person is                                                                    
confused or does not realize  that they can retreat, they do                                                                    
not have to retreat before using deadly force.                                                                                  
Representative Gara  offered both  sides of the  argument in                                                                    
order to get  further clarification: On the one  hand, if it                                                                    
is clear that a person can  retreat safely, the law does not                                                                    
want  to  provide  the  option   of  shooting  someone.  Ms.                                                                    
Carpeneti agreed.                                                                                                               
Representative  Gara  asked  someone   else  to  provide  an                                                                    
example of the other side of the argument.                                                                                      
Representative   Neuman  disagreed   with  Ms.   Carpeneti's                                                                    
statement that  a person  can always  be justified  in using                                                                    
deadly  force. He  opined  that  during certain  activities,                                                                    
deadly force cannot  be used, such as  when participating in                                                                    
a crime, felony,  or criminal objective, or  when fleeing or                                                                    
in  an  attack  with  gang-related  robberies;  AS  11.81.33                                                                    
stipulates that  a person cannot  use deadly force  in cases                                                                    
including  participation  in  a felony  transaction,  acting                                                                    
alone or with  others in revenge or retaliation,  and so on.                                                                    
He emphasized  that HB  381 is  not about  being in  a gang-                                                                    
related fight or participating in criminal activities.                                                                          
Representative Neuman  provided an  example that  raises the                                                                    
question of  whether a defendant would  be second-guessed in                                                                    
court. A person  has to know that they could  not retreat in                                                                    
complete  safety and  has to  make the  decision in  a split                                                                    
second. He  stressed that people  are finding  themselves in                                                                    
court over the issue of trying to defend with deadly force.                                                                     
Representative   Doogan  queried   the  perimeters   of  the                                                                    
proposed  legislation.   He  wondered  whether   there  were                                                                    
circumstances in which a person  would not be subject to the                                                                    
law because  they were in  a place  where they did  not have                                                                    
the right to  be. Ms. Carpeneti answered that  a person does                                                                    
not have a right to be  on someone else's property. A person                                                                    
who was trespassing  would not be justified  in using deadly                                                                    
force  against the  property owner  and  then claiming  that                                                                    
they did not have to retreat.                                                                                                   
Representative  Doogan asked  whether there  were any  other                                                                    
circumstances  in which  the  description  would apply.  Ms.                                                                    
Carpeneti replied  that the  main one  was being  on someone                                                                    
else's property; otherwise a person could be anywhere.                                                                          
Representative Doogan provided a  scenario: A person goes to                                                                    
a courthouse where  it is posted that a  person cannot carry                                                                    
a weapon,  there is  a shoot-out, and  the person  pulls out                                                                    
their weapon and  shoots someone else. He  asked whether the                                                                    
person  in the  scenario was  in a  place where  they had  a                                                                    
right to be.                                                                                                                    
11:00:56 AM                                                                                                                   
Ms. Carpeneti  opined that the person  has a right to  be in                                                                    
the courtroom, but the question  would be whether the person                                                                    
has the right to have a gun there.                                                                                              
Representative  Doogan   asked  whether  a  person   in  the                                                                    
hypothetical case  might be prosecuted for  having a firearm                                                                    
in  a  place they  should  not  have  had  it, but  not  for                                                                    
shooting someone  with the firearm. Ms.  Carpeneti responded                                                                    
that it  would depend on  the circumstances, but  she agreed                                                                    
it was a possibility.                                                                                                           
Co-Chair Stoltze  asked how likely the  possibility was. Ms.                                                                    
Carpeneti  answered that  none  of the  situations that  had                                                                    
been described were very likely.                                                                                                
Ms.   Carpeneti   responded   to   Representative   Neuman's                                                                    
statement about  criminal acts. She opined  that the problem                                                                    
in  a gang-related  incident  was  that past  investigations                                                                    
have shown  that everyone  claims that  the other  side shot                                                                    
first, leaving  both sides  in a position  to say  that they                                                                    
had a  right to be there  and did not shoot  first and could                                                                    
not be charged. She pointed out  that it is not always clear                                                                    
who is the criminal and who is not.                                                                                             
Co-Chair  Stoltze  recalled   other  predictions  and  grave                                                                    
concerns related  to past firearms legislation  that had not                                                                    
come  to pass.  He did  not want  to get  mired in  unlikely                                                                    
Representative Gara  expressed concern about  giving someone                                                                    
the  ability to  shoot someone  they do  not need  to shoot,                                                                    
while  still  maintaining  the  right  to  self-defense.  He                                                                    
described the opposite  argument to the one  he had proposed                                                                    
earlier: AS  11.31.335(a) stipulates that a  person can only                                                                    
use  deadly force  if they  can prove  it was  necessary for                                                                    
self-defense  in one  of the  seven  types of  circumstances                                                                    
listed.  He asked  whether  in advocating  for  the bill  he                                                                    
could  say the  state was  not giving  someone the  right to                                                                    
shoot someone  else in the  back because they have  to prove                                                                    
that the shooting was necessary for self-defense.                                                                               
11:05:01 AM                                                                                                                   
Ms. Carpeneti replied  that the person who  did the shooting                                                                    
would not have  to prove anything, because  in Alaska, self-                                                                    
defense  is  a  defense;   the  prosecution  would  have  to                                                                    
disprove self-defense  beyond a  reasonable doubt.  In other                                                                    
jurisdictions,   the   defense   of   self-defense   is   an                                                                    
affirmative defense;  a person charged  with a crime  has to                                                                    
prove by a preponderance of evidence.                                                                                           
Representative  Gara was  not worried  about the  burden-of-                                                                    
proof  issue.  He  asked  whether   HB  381  would  make  it                                                                    
allowable  to  shoot  someone  only   if  the  shooting  was                                                                    
necessary  for  self-defense.  Ms. Carpeneti  answered  that                                                                    
under HB  381, a  person would be  authorized to  use deadly                                                                    
force when  justified under the statutes  that authorize the                                                                    
use of  force in self-defense,  even though the  person knew                                                                    
they could retreat  in complete safety. In the  example of a                                                                    
person coming  into a committee  room and showing  a weapon,                                                                    
she did not think the people  sitting in the room could know                                                                    
whether  they could  retreat in  complete  safety, so  there                                                                    
would not  be a  duty to  retreat. On the  other hand,  if a                                                                    
person is  a couple blocks  away from an incident  and knows                                                                    
they can retreat by turning  around or going into a building                                                                    
and call the  police in complete safety to  self and others,                                                                    
the person should  retreat and should call  the police, even                                                                    
though they could be justified in using deadly force.                                                                           
Representative Gara  thought the duty-to-retreat  part could                                                                    
be irrelevant; setting the  burden-of-proof issue aside, the                                                                    
state would have  to show that the action  was necessary for                                                                    
self-defense,  or   the  person  would  be   convicted.  Ms.                                                                    
Carpeneti responded that the state  would have to prove that                                                                    
the  use  of  force  in  defense  of  self  and  others  was                                                                    
reasonable;  the  person has  to  believe  they had  to  use                                                                    
force, and the  belief has to be reasonable.  At that point,                                                                    
deadly force  could be  used to  avoid the  things described                                                                    
before (death,  serious physical injury, kidnapping,  and so                                                                    
on). Then, if  the person can retreat in  complete safety to                                                                    
self and others  and the person knows they  can retreat, the                                                                    
law requires retreat before using deadly force.                                                                                 
Representative Gara  did not  understand where  the duty-to-                                                                    
retreat issue would  ever come into play  under current law;                                                                    
if  the requirement  is  only using  it  when necessary  for                                                                    
self-defense, it  would not matter  whether there was  a law                                                                    
saying a person should retreat when it is safe.                                                                                 
11:09:16 AM                                                                                                                   
Ms.  Carpeneti provided  an example:  In the  middle of  the                                                                    
night, a person  is asleep in bed. Someone  outside runs out                                                                    
of gas  and does  not have  a cell phone  and knocks  on the                                                                    
door of  the sleeping  person to use  the telephone  to call                                                                    
for help. The person inside  gets their handgun (since it is                                                                    
the middle of  the night) and goes to the  door with the gun                                                                    
in hand. The  person on the other side of  the door sees the                                                                    
gun,  and is  afraid that  the person  with the  gun intends                                                                    
harm, and the  fear is reasonable. The  person outside would                                                                    
then be justified in using  deadly force rather than turning                                                                    
around  and  running  in the  other  direction.  The  person                                                                    
outside is in a  place where they have a right  to be, has a                                                                    
reasonable and personal  fear of the person  inside with the                                                                    
gun, and would  not have a duty to retreat.  She thought the                                                                    
example  turned the  tables  on the  example  of the  person                                                                    
inside the house having the right to use deadly force.                                                                          
Co-Chair Stoltze noted the importance  of having cell phones                                                                    
in cars.                                                                                                                        
11:11:52 AM                                                                                                                   
Co-Chair Stoltze closed public  testimony. He asked Mr. Judy                                                                    
to testify.                                                                                                                     
Representative  Doogan  questioned  why  Mr.  Judy  was  not                                                                    
testifying  as   a  member   of  public.   Co-Chair  Stoltze                                                                    
explained that he was being called as an expert witness.                                                                        
Mr. Judy addressed the question  of whether it would only be                                                                    
allowable  to  shoot  someone when  necessary.  He  answered                                                                    
"absolutely."  He asserted  that HB  381 had  nothing to  do                                                                    
with justification;  the basic principle still  remains that                                                                    
in self-defense,  a person  may only  use deadly  force upon                                                                    
another when and to the  extent that they reasonably believe                                                                    
the use  of deadly force  is necessary for  self-defense. He                                                                    
added  that the  use of  deadly force  is limited  for self-                                                                    
defense   in  the   listed  circumstances   (death,  serious                                                                    
physical  injury, kidnapping,  sexual assault,  or robbery).                                                                    
In addition, the  no duty to retreat only  relates to deadly                                                                    
force; AS  11.81.335(a) is the  justification. A  person may                                                                    
not use deadly force [unless] the  person is in a place they                                                                    
have a legal  right to be. He stated that  the perimeters of                                                                    
"a  legal right  to be"  are  related to  no trespassing;  a                                                                    
person committing a crime has no  right to be in that place.                                                                    
He did not think HB 381  would impact the issue. He stressed                                                                    
that the bill was very narrow and simple.                                                                                       
11:15:16 AM                                                                                                                   
Representative Gara  requested comment  from DOL  related to                                                                    
the gang issue.                                                                                                                 
LT.  RODNEY  DIAL,  ALASKA  STATE  TROOPERS,  DEPARTMENT  OF                                                                    
PUBLIC  SAFETY  (via  teleconference),  commented  that  the                                                                    
department was neutral on the bill.                                                                                             
Co-Chair Hawker spoke  to the fiscal note. Based  on what he                                                                    
had heard in testimony, he  had concerns about the immediate                                                                    
employment of  two full-time employees at  the Department of                                                                    
Law at  a cost  of $400,000.  He felt  that the  fiscal note                                                                    
should be indeterminate.                                                                                                        
Representative  Kelly  thought the  law  itself  would be  a                                                                    
deterrent to crime and argued  that there would be less need                                                                    
for law enforcement to get involved.                                                                                            
Representative Doogan  stated that he was  willing to accept                                                                    
an indeterminate fiscal note but not a zero note.                                                                               
Representative Gara did not think  there was a good argument                                                                    
about which  way the fiscal  note should go. He  opined that                                                                    
some people  could read the law  as having a right  to shoot                                                                    
people.  He  did not  think  criminals  would read  the  law                                                                    
before assaulting somebody and did  not think it would deter                                                                    
Representative Gara stated concerns  about what DOL had said                                                                    
about gang  violence, which he  viewed as a  substantial and                                                                    
growing  problem. He  maintained that  the traditional  gang                                                                    
defense was "they  shot first." He was  less concerned about                                                                    
someone shooting someone else in  the back, which he did not                                                                    
think people  had a right to  do in general; he  wanted that                                                                    
to  be made  clear  if  HB 381  passed.  Regarding the  gang                                                                    
issue,  he wondered  whether an  exception could  be written                                                                    
into  the law  so that  a person  involved in  gang violence                                                                    
could  not claim  that  they had  a right  to  be there.  He                                                                    
understood that it  was hard to define "gang."  He wanted to                                                                    
exempt people who are part of  a gang of a convenient excuse                                                                    
to kill.                                                                                                                        
11:21:47 AM                                                                                                                   
Co-Chair Hawker thought the issue  of gang violence had been                                                                    
addressed in AS 11.81.330, the  justification for the use of                                                                    
non-deadly  force, a  prerequisite for  a justification  for                                                                    
deadly force. He argued that  the statute clearly stipulated                                                                    
that  a person  is justified  in using  non-deadly force  on                                                                    
another unless  the person  is acting  alone or  with others                                                                    
for  revenge,   retaliation,  or   response  to   actual  or                                                                    
perceived conduct by a rival,  perceived rival, or member of                                                                    
a perceived  rival group.  He did not  care if  gang members                                                                    
shot each  other, but he  cared about innocent  citizens. He                                                                    
felt  that AS  11.81.330(c) would  specifically protect  the                                                                    
state from issues raised by Representative Gara.                                                                                
Representative Kelly agreed.                                                                                                    
Representative Neuman  added that the bill  would not change                                                                    
justification  laws,   which  are   still  in   statute.  He                                                                    
emphasized that a  person may not use deadly force  if it is                                                                    
not  necessary. He  pointed out  that HB  381 would  clarify                                                                    
current statute related to where  a person has a legal right                                                                    
to  be.  He opined  that  criminals  will be  criminals  and                                                                    
honest people are not criminals.                                                                                                
Co-Chair  Hawker requested  the committee  aide to  redo the                                                                    
fiscal  note to  make it  an indeterminate  fiscal note  for                                                                    
Representative  Gara  commented  that  Co-Chair  Hawker  had                                                                    
addressed  his  concerns about  the  gang  issue. He  wanted                                                                    
DOL's opinion on the issue.                                                                                                     
Co-Chair  Stoltze thought  the department  could comment  at                                                                    
another time. He  thought some of the issues  would be dealt                                                                    
with on the floor.                                                                                                              
11:26:40 AM                                                                                                                   
Vice-Chair  Thomas  relayed  personal experience  and  noted                                                                    
that different  people have  different "breaking  points" in                                                                    
various  kinds  of confrontations.  He  had  learned not  to                                                                    
retreat in confrontations. The military  had also taught him                                                                    
not to  retreat. He pointed  out that veterans are  often in                                                                    
confrontations  and  do not  retreat.  He  referred to  more                                                                    
frequent  shootings   in  Anchorage  and  his   decision  to                                                                    
consider obtaining a concealed  handgun for self-defense. He                                                                    
agreed with Co-Chair Hawker about  the gangs: let them shoot                                                                    
each  other. He  supported  passing the  legislation out  of                                                                    
Representative Doogan  stated that  he could not  support HB
381 because  he felt the  bill would simply remove  the duty                                                                    
to  retreat and  create more  violence. Since  people had  a                                                                    
right to  be almost  anywhere, a  person in  a confrontation                                                                    
would  no longer  be required  to retreat  if they  have the                                                                    
opportunity  to  do  so. He  believed  more  confrontations,                                                                    
violence, and  more shootings would  be inevitable.  He felt                                                                    
that basically  everyone would have  the opportunity  to use                                                                    
force; some would use it well and some would not.                                                                               
11:32:16 AM                                                                                                                   
Representative Salmon stated that  he supported the bill. He                                                                    
reported that  he had  been trying to  apply the  measure to                                                                    
rural  areas. He  thought there  were unclear  situations in                                                                    
which someone  was shooting  and pointed  out that  there is                                                                    
nowhere to  retreat in  rural areas because  of the  lack of                                                                    
law enforcement.  He noted that  it could take two  or three                                                                    
days for  a state trooper  to arrive. He supported  the bill                                                                    
for  rural  areas.  He  understood   that  urban  areas  had                                                                    
different issues.                                                                                                               
Representative  Gara  argued that  no  law  would stop  gang                                                                    
members from shooting  one another. He pointed  out that Ms.                                                                    
Carpeneti's  point was  not that  they  would stop  shooting                                                                    
each  other,  but  that  the  state would  not  be  able  to                                                                    
prosecute  gang  members.  He   believed  the  question  was                                                                    
whether  the state  would be  able to  prosecute and  send a                                                                    
murderer to jail.                                                                                                               
Representative  Foster stated  support for  the legislation,                                                                    
noting that  he had  gone back  and forth  on the  issue. He                                                                    
felt  that victims  or potential  victims and  not criminals                                                                    
should be  given the benefit  of the doubt in  situations in                                                                    
which a person has to make a split-second decision.                                                                             
11:35:44 AM                                                                                                                   
Co-Chair  Hawker bill  emphasized  that the  bill would  not                                                                    
change any of the issues  regarding justification of the use                                                                    
of deadly force.                                                                                                                
Co-Chair  Hawker  MOVED  to  report  CSHB  381(JUD)  out  of                                                                    
Committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes. There  being NO OBJECTION, it was                                                                    
so ordered.                                                                                                                     
CSHB  381(JUD) was  REPORTED  out of  Committee  with a  "do                                                                    
pass" recommendation  and with  attached new fiscal  note by                                                                    
the House  Finance Committee for  the Department of  Law and                                                                    
previously published fiscal note: FN1 (DPS).                                                                                    

Document Name Date/Time Subjects
2 CS HB 381 Sponsor Statement HJUD.pdf HFIN 4/8/2010 9:00:00 AM
HB 381
3 HB 381 HJUD explanation of changes.pdf HFIN 4/8/2010 9:00:00 AM
HB 381
6 2009 Florida Statutes.pdf HFIN 4/8/2010 9:00:00 AM
7 Utah Code.pdf HFIN 4/8/2010 9:00:00 AM
HB381 AS 11 81 335[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 381
HB381CS(JUD)-LAW-CRIM-03-30-10NEW.pdf HFIN 4/8/2010 9:00:00 AM
HB 381
HB 408 NRA support letter[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
HB 408 Letter.pdf HFIN 4/8/2010 9:00:00 AM
HB 408
06 HB408 Caron v. US[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
04 HB408 NRA Background information[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
HB 381 Support Letter.pdf HFIN 4/8/2010 9:00:00 AM
HB 381
07 HB408 Gabrielle v. DPS[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
08 HB408 Support[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
HB408 AS11.61.20011_05_08[1].pdf HFIN 4/8/2010 9:00:00 AM
HB 408
HB408 Sponsor Statement 4.6.10.pdf HFIN 4/8/2010 9:00:00 AM
HB 408
HB 381 LAW LETTER.pdf HFIN 4/8/2010 9:00:00 AM
HB 381
HB381CS(JUD)-LAW-CRIM-04-08-10.xls HFIN 4/8/2010 9:00:00 AM
HB 381