Legislature(2009 - 2010)CAPITOL 120

03/15/2010 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Moved CSHB 71(JUD) Out of Committee
Failed To Move Out Of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 355(JUD) Out of Committee
                     HB 381 - SELF DEFENSE                                                                                  
1:17:12 PM                                                                                                                    
CHAIR RAMRAS announced  that the next order of  business would be                                                               
HOUSE BILL NO. 381, "An Act relating to self defense."                                                                          
1:17:55 PM                                                                                                                    
REPRESENTATIVE  MARK NEUMAN,  Alaska State  Legislature, sponsor,                                                               
explained that  HB 381 came about  because of a concern  from the                                                               
National Rifle Association  (NRA) that some of  Alaska's laws may                                                               
not protect Alaskans' rights.   He offered his understanding that                                                               
the Department  of Law (DOL) has  suggestions as to areas  of the                                                               
law needing  to be reviewed.   He requested that  the legislation                                                               
not  be  moved  today  in  order  that  all  involved  can  craft                                                               
appropriate legislation.                                                                                                        
1:20:21 PM                                                                                                                    
JIM  ELLIS,  Staff,  Representative  Mark  Neuman,  Alaska  State                                                               
Legislature,  on behalf  of the  sponsor, Representative  Neuman,                                                               
explained  that  the  sponsor  had  received  some  concern  from                                                               
constituents and the  NRA with regard to existing  state law that                                                               
specifies an individual  has a duty to retreat  when he/she knows                                                               
it  can  be  achieved  with   complete  personal  safety  to  the                                                               
individual and  others.   The concern, he  specified, is  that an                                                               
individual  who is  under  the severe  stress  of a  self-defense                                                               
situation  has to  make a  decision  as to  how a  court or  jury                                                               
[would view  their actions of  self defense].  The  sponsor views                                                               
the aforementioned  as an undue  burden on a  law-abiding citizen                                                               
and  believes  the best  way  to  address  the situation  is  the                                                               
proposed provision specifying that  the individual doesn't have a                                                               
duty  to  retreat, which  would  also  serve  as a  deterrent  to                                                               
criminals.   There  are guidelines,  he  noted, in  terms of  the                                                               
crimes [to which the provision  applies].  The sponsor feels that                                                               
Alaskans have used  the current law responsibly  and expansion of                                                               
it  should  be   considered.    Mr.  Ellis   explained  that  the                                                               
legislation  also intends  to extend  that an  individual doesn't                                                               
have a  duty to retreat when  an individual uses deadly  force in                                                               
the burglary  of his/her home, but  there would need to  be proof                                                               
that the  use of force  was reasonable.   This would also  be the                                                               
case with  carjacking of  an occupied  vehicle.   He acknowledged                                                               
that the  legislation may  need to be  amended to  better reflect                                                               
the aforementioned intent.                                                                                                      
1:24:55 PM                                                                                                                    
REPRESENTATIVE NEUMAN added  that he wants to clarify  that if an                                                               
individual arrives at  his/her home or awakes at  his/her home to                                                               
another  individual  in  the  home,  the  individual  [homeowner]                                                               
should be able to assume that  individual could cause harm to the                                                               
individual or his or her family.   The individual should have the                                                               
full rights to protect oneself  as deemed necessary.  He reminded                                                               
the committee of the situation in  which a church in Big Lake had                                                               
been robbed  multiple times.   The church  had alarms  and motion                                                               
sensors  that [alerted]  the minister  [of a  potential robbery].                                                               
The minister, pistol in hand,  went to the church and encountered                                                               
the armed perpetrators  who he shot.  The minister  went to court                                                               
to  defend  his  actions.    Representative  Neuman  opined  that                                                               
Alaskans should  have the right  to protect themselves  and their                                                               
family without having to rely on  a jury to determine whether the                                                               
individual could've escaped or fled the area.                                                                                   
1:27:15 PM                                                                                                                    
REPRESENTATIVE LYNN surmised  that under HB 381  he wouldn't have                                                               
to be in fear  of his life or that of anyone else  in the home in                                                               
order to use  deadly force against an individual  who has invaded                                                               
his home.                                                                                                                       
REPRESENTATIVE NEUMAN  said if he  found someone in his  home, he                                                               
would  assume  that the  intruder  was  going  to cause  harm  to                                                               
himself  or his  family.  [Alaskans] should  be  able to  protect                                                               
their homes and properties.                                                                                                     
REPRESENTATIVE  LYNN asked  whether  he would  have  to meet  the                                                               
"fear" requirement  prior to using deadly  force.  Representative                                                               
Lynn recounted a  situation in which he was  attending a potluck,                                                               
during which  he went  to his  car to  retrieve something.   Upon                                                               
returning  to the  potluck, he  inadvertently  entered the  wrong                                                               
house.   In that  situation, he asked  whether the  individual in                                                               
the wrong house could have used deadly force, under HB 381.                                                                     
MR. ELLIS clarified  that his understanding is that  HB 381 would                                                               
apply  in  the case  of  burglary,  which entails  "breaking  and                                                               
entry."   He related his  further understanding that if  the door                                                               
is open, it would be a different case.                                                                                          
REPRESENTATIVE   LYNN  expressed   the   need   to  address   the                                                               
aforementioned [situation].                                                                                                     
1:29:58 PM                                                                                                                    
REPRESENTATIVE  GATTO  posed a  situation  in  which a  homeowner                                                               
sleeping  upstairs  hears  a noise  downstairs.    The  homeowner                                                               
retrieves  his/her gun  and proceeds  downstairs to  investigate.                                                               
At the instant the burglar  sees the homeowner, the burglar exits                                                               
the home  at which time the  homeowner shoots the burglar  in the                                                               
back.     He  asked  if   the  aforementioned  action   would  be                                                               
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
1:30:43 PM                                                                                                                    
MR.  ELLIS  answered, "Our  intent  is  not necessarily  that  if                                                               
they're  fleeing,  escaping  you,  ...  but we  do  not  want  to                                                               
necessarily second  judge the  actions of  a person  within their                                                               
own home."  He noted that in the  dark of night it may not always                                                               
be  clear  whether an  intruder  is  fleeing  or reaching  for  a                                                               
REPRESENTATIVE  GATTO  remarked  that  he  foresaw  many  special                                                               
cases.    He questioned  whether  a  vehicle,  a public  park,  a                                                               
sidewalk, or  any other  place an  individual has  a right  to be                                                               
would be  considered an  extension of an  individual's home.   He                                                               
related  that  he  is  uncomfortable   with  allowing  it  to  be                                                               
sufficient  for an  individual who  feels threatened  in a  place                                                               
he/she has  a right  to be to  shoot.  He  opined that  there are                                                               
unintended consequences to this extension  [or rights].  He asked                                                               
if  it's not  intending  to  harm others  in  the  process of  an                                                               
individual  protecting   himself/herself  could  be  used   as  a                                                               
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
1:33:26 PM                                                                                                                    
REPRESENTATIVE  NEUMAN replied  that the  aforementioned isn't  a                                                               
defense and  the legislation  doesn't try to  make it  a defense.                                                               
The legislation merely  attempts to provide more  clarity on this                                                               
issue.   He again relayed  that DOL  has indicated there  is room                                                               
for improvement with this legislation.                                                                                          
CHAIR RAMRAS  reminded the  committee that  the sponsor  wants to                                                               
bring  forward the  legislation for  discussion regarding  how to                                                               
improve it.                                                                                                                     
1:34:57 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  referred  to  page  2,  line  27,  and                                                               
suggested that  the language be  reviewed because he said  he has                                                               
never viewed language specifying that  a type of evidence doesn't                                                               
apply.  He  further suggested that it's  possibly a typographical                                                               
MR. ELLIS agreed to research that point further.                                                                                
1:36:07 PM                                                                                                                    
BRIAN  JUDY, Alaska  Liaison, National  Rifle Association  (NRA),                                                               
characterized  HB   381  as  simple  legislation   that  provides                                                               
protection  and  assurance that  an  individual  doesn't have  to                                                               
retreat when he/she is lawfully  in a place and feels threatened.                                                               
Existing Alaska law  already specifies that an  individual has no                                                               
duty  to retreat  if  an  individual is  "on  premises which  the                                                               
person owns  or where the person  resides or in a  building where                                                               
the  person   works."    From  NRA's   perspective,  the  primary                                                               
component of HB  381 would extend that no duty  to retreat to the                                                               
individual's vehicle  as well  as any  place where  an individual                                                               
has a  legal right to  be.  Mr. Judy  pointed out that  under the                                                               
proposed  language  of  HB  381,  in  a  situation  in  which  an                                                               
individual is walking down the street  and a rapist tries to drag                                                               
the  individual in  the alley  or a  kidnapper tries  to drag  an                                                               
individual  into  his/her car,  the  individual  has no  duty  to                                                               
retreat.  Furthermore,  if the individual so  chooses, he/she can                                                               
fight back  with force.   He characterized the  aforementioned as                                                               
common  sense.   Mr.  Judy emphasized  that law-abiding  citizens                                                               
shouldn't fear  criminal prosecution  when he/she  stands his/her                                                               
ground and defends  himself/herself when at a place  he/she has a                                                               
legal right to be.  In  conclusion, Mr. Judy urged support for HB
CHAIR  RAMRAS   noted  that  the  committee   packet  includes  a                                                               
compelling letter from DOL regarding concerns with HB 381.                                                                      
1:40:01 PM                                                                                                                    
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section,  Criminal Division,  Department of  Law, apologized  for                                                               
the late delivery  of the letter and fiscal note.   Ms. Carpeneti                                                               
related that  DOL is confused  and concerned about HB  381, which                                                               
DOL reads as  contributing to violence in Alaska.   Under current                                                               
law,  an  individual  only  has   the  duty  to  retreat  if  the                                                               
individual knows that he/she can  retreat with complete safety to                                                               
the  individual and  others.   In response  to Chair  Ramras, Ms.                                                               
Carpeneti  said that  she doesn't  understand  the problem  being                                                               
addressed  by HB  381.   She characterized  the state's  existing                                                               
self-defense  law  as  fairly  strong.    She  pointed  out  that                                                               
individuals  don't  have  to  retreat  in  a  number  of  places,                                                               
including one's home,  vehicle, and place of  business.  However,                                                               
if the  law is changed to  every place an individual  has a right                                                               
to be, then it's every  place unless an individual is trespassing                                                               
or burglarizing  a place.   She expressed concern  about removing                                                               
the duty to retreat under those circumstances.                                                                                  
MS. CARPENENTI  opined that Section  2, the prima  facie evidence                                                               
provisions, would encourage vigilantism  because there is no time                                                               
limit.   For instance, an  individual could use deadly  force two                                                               
hours after  an individual burglarized his/her  house rather than                                                               
call the  police.   After discussions  with the  sponsor's staff,                                                               
Ms.  Carpeneti   surmised  that   wasn't  the  intention.     The                                                               
department  is also  concerned by  the arrest  provisions because                                                               
those provisions mean that a  police officer can't make an arrest                                                               
without  making a  complicated legal  decision regarding  whether                                                               
the law  of self  defense would  apply.  For  example, in  a gang                                                               
situation wouldn't it be best to  get everyone off the street and                                                               
then determine the details [with  regard to whether self defense]                                                               
MS. CARPENETI,  in response to  Chair Ramras, specified  that DOL                                                               
had  the  following three  primary  concerns.   Firstly,  HB  381                                                               
deletes  the   requirement  to  retreat  in   Alaska,  even  when                                                               
retreating  can be  done in  complete safety  and the  individual                                                               
knows  that.   Secondly, the  provisions related  to prima  facie                                                               
evidence are  of concern.   She explained that one  must remember                                                               
that the  state, the  prosecution, is  required to  disprove self                                                               
defense beyond  a reasonable doubt  and the prima  facie evidence                                                               
considerations  will make  it that  much harder  to do  so.   The                                                               
sponsor's  concern, she  related, was  that a  law-abiding person                                                               
who  didn't retreat  would have  to prove  that he/she  shouldn't                                                               
have  had to  retreat.   However, that's  not the  way it  works;                                                               
instead the state must disprove,  beyond a reasonable doubt, that                                                               
the law-abiding person  didn't have a duty to  retreat.  Thirdly,                                                               
the  legislation specifies  that a  law enforcement  official may                                                               
not  make  an arrest  until  it's  determined that  self  defense                                                               
applies.  The  aforementioned is difficult to  determine, even in                                                               
the quiet of  an office with the  law and the facts.   She opined                                                               
that  requiring  this of  law  enforcement  is asking  too  much,                                                               
particularly  since  the situation  is  often  one in  which  the                                                               
police officer  needs to stop  the behavior, make an  arrest, and                                                               
then later decide  who the charge should  be appropriately levied                                                               
1:46:00 PM                                                                                                                    
MS. CARPENENTI, in regard to  the sponsor's suggestion, said that                                                               
she would be happy to work with  the sponsor and Mr. Judy on this                                                               
1:46:24 PM                                                                                                                    
REPRESENTATIVE  NEUMAN offered  that  people  are being  arrested                                                               
after  defending   themselves.    After  being   arrested,  these                                                               
individuals  have to  prove they  didn't  have a  way to  escape,                                                               
which  is often  left  to  the jury  to  decide.   Representative                                                               
Neuman  related that  the  goal  with HB  381  is  to not  arrest                                                               
individuals who have defended themselves.                                                                                       
CHAIR  RAMRAS  surmised then  that  the  legislation attempts  to                                                               
address those situations  in which an individual  who felt he/she                                                               
was being attacked and  defended himself/herself ultimately ended                                                               
up in trouble in court.                                                                                                         
REPRESENTATIVE NEUMAN indicated that to  be the case and reminded                                                               
the  committee of  the earlier  mentioned real  situation of  the                                                               
minister in Big Lake.                                                                                                           
REPRESENTATIVE GATTO agreed  with Representative Neuman's earlier                                                               
point  that  a fleeing  individual  may  be  doing so  simply  to                                                               
1:50:07 PM                                                                                                                    
REPRESENTATIVE  HOLMES  offered   her  understanding  that  under                                                               
current law, there would be no  duty to retreat in a situation in                                                               
which the  individual believes the  fleeing individual  is merely                                                               
moving to  a location to reload.   In such a  situation, it would                                                               
still be considered self defense.                                                                                               
MS. CARPENETI  concurred.   In response  to an  earlier question,                                                               
Ms. Carpeneti  stated that  one doesn't have  to be  afraid under                                                               
current law.  Deadly force, so  long as it's reasonable under the                                                               
circumstances,  can be  used in  one's  own home  to terminate  a                                                               
burglary.   In  response to  Representative Gatto,  Ms. Carpeneti                                                               
reiterated that  the state  must disprove  self defense  beyond a                                                               
reasonable doubt.                                                                                                               
MR. JUDY acknowledged that it's  a fine line in these situations.                                                               
The  notion  that  self  defense   must  be  disproved  beyond  a                                                               
reasonable doubt is  contrary to the fact that when  the state is                                                               
doing so, the  individual who utilized self defense  is in court.                                                               
Furthermore, the  individual has  likely hired an  attorney, been                                                               
in prison for  some time, and is  a defendant in a  court of law.                                                               
The desire  is to prevent the  aforementioned.  "We don't  want a                                                               
victim to  be victimized  a second time  by the  criminal justice                                                               
system,"  he opined.   He  mentioned that  he would  be happy  to                                                               
continue to be involved in a dialogue to define this fine line.                                                                 
1:53:49 PM                                                                                                                    
REPRESENTATIVE GRUENBERG suggested the  need to research the laws                                                               
of other states on this matter.                                                                                                 
REPRESENTATIVE  DAHLSTROM  noted  her support  of  the  sponsor's                                                               
intent.  She then inquired as  to the outcome of the situation in                                                               
which the minister encountered a burglary at his church.                                                                        
REPRESENTATIVE  NEUMAN  answered  that  the  minister  was  found                                                               
innocent,  but only  after  he expended  a  tremendous amount  of                                                               
money [in the case], was imprisoned  for a time.  Furthermore, it                                                               
upset his family and his life.                                                                                                  
1:55:15 PM                                                                                                                    
CHAIR RAMRAS  encouraged DOL, Mr.  Judy, and the sponsor  to work                                                               
on HB 381.                                                                                                                      
[HB 381 was held over.]                                                                                                         

Document Name Date/Time Subjects
1 HB 381 Sponsor Statement HJUD.pdf HJUD 3/15/2010 1:00:00 PM
HB 381
3 HB381 Sectional Analysis.pdf HJUD 3/15/2010 1:00:00 PM
HB 381
4 HB381 AS 11 81 335.pdf HJUD 3/15/2010 1:00:00 PM
HB 381