Legislature(2009 - 2010)CAPITOL 120

03/29/2010 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 348(JUD) Out of Committee
Moved CSHB 381(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                     HB 381 - SELF DEFENSE                                                                                  
1:09:45 PM                                                                                                                    
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE BILL NO. 381, "An Act relating to self defense."                                                                          
1:10:10 PM                                                                                                                    
REPRESENTATIVE  GATTO  moved  to  adopt  the  proposed  committee                                                               
substitute (CS)  for HB 381, 26-LS1534\E,  Luckhaupt, 3/23/10, as                                                               
the working document.                                                                                                           
There being no objection, Version E was before the committee.                                                                   
CHAIR RAMRAS pointed  out that Version E was  a truncated version                                                               
of the original bill, but it will still benefit from discussion.                                                                
1:10:55 PM                                                                                                                    
JIM  ELLIS, Staff  to Representative  Mark  Neuman, Alaska  State                                                               
Legislature,  explained that  Version  E  addresses the  concerns                                                               
which arose  for the original bill.   He noted that  Version E is                                                               
limited to one topic.                                                                                                           
1:11:39 PM                                                                                                                    
REPRESENTATIVE  HERRON  questioned  whether the  term,  "complete                                                               
safety" as used on page 1, line 5, will be statutorily defined.                                                                 
MR.  ELLIS,  in  response  to  a  question,  explained  that  the                                                               
original bill contained  a section for a proposed  addition to AS                                                               
11.81,  which discussed  prima facie  evidence.   He pointed  out                                                               
that this proposed section is removed from Version E.                                                                           
REPRESENTATIVE  GATTO, pointing  to Version  E, page  2, line  3,                                                               
asked  if paragraphs  (1), (2),  (3), and  (4) were  necessary in                                                               
light of (5).                                                                                                                   
MR. ELLIS replied  that he was not sure, and  that there could be                                                               
some  duplication.   He  explained  that  it  was easier  to  add                                                               
paragraph (5).                                                                                                                  
CHAIR  RAMRAS, expressing  his fascination  with  the meaning  of                                                               
different words, asked for the meaning  of "or in any place where                                                               
the person has a right to be."                                                                                                  
MR.  ELLIS  offered his  belief  that  this  is any  place  where                                                               
someone is not trespassing.                                                                                                     
1:16:52 PM                                                                                                                    
CHAIR RAMRAS,  reading Section  1, echoed  Representative Gatto's                                                               
question for the need of paragraphs (1)-(4).                                                                                    
MR.  ELLIS agreed  that  paragraph (5)  would  include the  other                                                               
1:19:58 PM                                                                                                                    
REPRESENTATIVE   MARK  NEUMAN,   Alaska  State   Legislature,  in                                                               
response to Chair Ramras, explained  that paragraph (1) refers to                                                               
premises that a person owns, leases,  or resides in.  He declared                                                               
that paragraph  (5) was added  to allow an individual  to protect                                                               
themselves in a place where they have a legal right to be.                                                                      
CHAIR RAMRAS  asked how paragraph  (5) expands the  rights beyond                                                               
the prior four paragraphs.                                                                                                      
REPRESENTATIVE  NEUMAN named  the  places a  person  could be  as                                                               
described in paragraph  (1), and noted that this  also included a                                                               
member of  the person's family,  as noted  in paragraph (4).   He                                                               
opined that  paragraph (5) expands  the current definition  for a                                                               
"place  where you  have  a right  to  be to  be  able to  protect                                                               
yourself or  your family."   He relayed that  earlier discussions                                                               
with the Department of Law  (DOL), the National Rifle Association                                                               
(NRA), and  his staff  had revolved around  the "razor's  edge on                                                               
where you fall on rights."   Under the bill, there would still be                                                               
a  determination  of   whether  the  use  of   deadly  force  was                                                               
justified.  He suggested that this would prevent vigilantism.                                                                   
1:24:49 PM                                                                                                                    
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section,   Criminal   Division,    Department   of   Law   (DOL),                                                               
acknowledged  that   Version  E  addresses  many   of  the  DOL's                                                               
concerns, but she pointed out that  it does not include the "duty                                                               
to retreat,"  which is required  in Alaska if  it can be  done in                                                               
complete  safety.   In Alaska,  self defense  is a  valid defense                                                               
only  if it  can be  proven beyond  a reasonable  doubt that  you                                                               
could  not  retreat in  complete  safety.    In response  to  the                                                               
question from  Representative Gatto, DOL offered  its belief that                                                               
paragraph (5) eliminates the need for  paragraphs (1) - (4).  She                                                               
explained that these  were places that an individual  has a right                                                               
to be,  so it  is not necessary  to list them.   She  pointed out                                                               
that Alaska statutes do not define the term "complete safety".                                                                  
MS. CARPENETI, in response to  Chair Ramras, stated that although                                                               
Version  E  is better  than  the  original  bill, DOL  still  has                                                               
concerns.  She  agreed with Chair Ramras that Version  E "makes a                                                               
bad bill, better."                                                                                                              
1:26:39 PM                                                                                                                    
REPRESENTATIVE  HERRON  asked Ms.  Carpeneti  to  comment on  the                                                               
title of the bill.                                                                                                              
MS. CARPENETI said that juries  will evaluate whether a person is                                                               
justified.   She explained  that the use  of deadly  force raises                                                               
the question of whether the person had the duty to retreat.                                                                     
1:27:42 PM                                                                                                                    
REPRESENTATIVE GATTO asked  for examples of places  that a person                                                               
had no  legal right  to be.   He  asked if  a sign  declaring "No                                                               
Trespassing" constituted such a place.                                                                                          
[CHAIR RAMRAS passed the gavel to Representative Herron.]                                                                       
MS. CARPENETI agreed.                                                                                                           
REPRESENTATIVE GATTO asked if his  house or his property would be                                                               
MS.  CARPENETI,  in  response,  said  that  his  house  would  be                                                               
protected, but that  it would depend on whether  his property was                                                               
clearly marked.                                                                                                                 
REPRESENTATIVE  GATTO asked  about a  paved driveway  off a  dirt                                                               
road, which was  the only pavement for a mile,  and went directly                                                               
to his house.                                                                                                                   
[Representative Herron returned the gavel to Chair Ramras.]                                                                     
MS.  CARPENETI  replied that  all  of  these instances  would  be                                                               
"factually based."                                                                                                              
REPRESENTATIVE  GATTO  expressed  concern about  determining  the                                                               
boundaries of  someone's unmarked  property, which could  lead to                                                               
an accidental trespass.                                                                                                         
[CHAIR RAMRAS passed the gavel to Representative Herron.]                                                                       
1:30:46 PM                                                                                                                    
REPRESENTATIVE   GATTO   expressed  concern   about   unknowingly                                                               
trespassing onto unmarked private property.                                                                                     
1:31:42 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG referred  to AS  11.46.350(b)-(c) which                                                               
addresses criminal trespass.  He  noted that criminal trespass in                                                               
the first degree  is defined as entering  or remaining unlawfully                                                               
with the  intent to commit  a crime, a  Class A misdemeanor.   He                                                               
defined  criminal trespass  in the  second  degree as  a Class  B                                                               
misdemeanor.     He  pointed  out  that   entering  or  remaining                                                               
unlawfully is defined in the  statute.  He further explained that                                                               
a person entering  land, without intent to commit  a crime, which                                                               
is unused,  unimproved, and  not enclosed,  is "privileged  to do                                                               
so,   unless  there   is  notice   against  trespass   personally                                                               
communicated to  that person  by the  owner of  the land  or some                                                               
other authorized person."                                                                                                       
The committee took an at-ease from 1:34 p.m. to 1:35 p.m.                                                                       
1:35:17 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked if being  on a paved road could be                                                               
MS.  CARPENETI, in  response, said  that it  would depend  on the                                                               
circumstances.   The  road would  have to  be marked  as private.                                                               
She agreed that a mailbox would  indicate that it is private, but                                                               
it would still depend on the circumstances.                                                                                     
1:36:22 PM                                                                                                                    
MS. CARPENETI, in response to  Representative Lynn, declared that                                                               
any person  who is  invited in, including  service people,  has a                                                               
right to be there.                                                                                                              
REPRESENTATIVE LYNN  asked about  people entering to  retrieve an                                                               
object, such as a ball or a model airplane.                                                                                     
MS. CARPENETI replied that it would depend on the circumstances.                                                                
1:38:49 PM                                                                                                                    
REPRESENTATIVE HOLMES,  referring to  the DOL letter  dated March                                                               
15,  2010  [Included  in  the members'  packets],  asked  if  DOL                                                               
maintained its objection.  She  read from the second paragraph on                                                               
page  one:   "...if  person A  could avoid  killing  person B  by                                                               
walking away,  he/she would no longer  be required to do  so, but                                                               
instead would be authorized by law  to kill person B."  She asked                                                               
if this would also now apply with Version E.                                                                                    
MS. CARPENETI replied that it is correct.                                                                                       
REPRESENTATIVE HOLMES read from page  three, paragraph two:  "The                                                               
proposed  subsection...  would  almost completely  eliminate  the                                                               
duty to  retreat." and  she asked  if this was  also still  a DOL                                                               
concern of Version E.                                                                                                           
MS. CARPENETI replied that it was still a concern.                                                                              
REPRESENTATIVE HERRON,  referring to Version  E, page 2,  line 3,                                                               
asked if this was a re-write from the original bill.                                                                            
1:40:16 PM                                                                                                                    
MS.  CARPENETI  explained  that  Version  E  merely  changes  the                                                               
numbering of the paragraphs.                                                                                                    
1:40:41 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked whether  there had been discussion                                                               
with the  bill sponsor for inserting  "that you only have  a duty                                                               
to retreat when you  know you can safely do so."   He opined that                                                               
this was the basic principle of the common law.                                                                                 
MS. CARPENETI replied  that this was already included  on page 1,                                                               
lines 4-7, of Version E.                                                                                                        
MS.  CARPENETI, in  response  to  Representative Gruenberg,  said                                                               
that DOL did  discuss with the bill sponsor the  "burden of going                                                               
forward and the burden of proof."                                                                                               
MS. CARPENETI,  in response  to Representative  Gruenberg, stated                                                               
that  the  duty  of  presenting  evidence  of  self  defense  was                                                               
discussed in general terms.                                                                                                     
1:43:10 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  suggested a statement that  "the burden                                                               
to  disprove  the   defense  is  on  the   prosecution  beyond  a                                                               
reasonable doubt." He stated further  that "all the defendant has                                                               
to do  is put in some  evidence, enough to raise  the issue, like                                                               
to say, 'gee,  I thought he was  gonna go after me'  and then the                                                               
duty to  disprove it, to show  that didn't occur, is  back on the                                                               
prosecution  and it's  the highest  burden in  the law,  beyond a                                                               
reasonable doubt."                                                                                                              
1:44:09 PM                                                                                                                    
MR. ELLIS replied that he would  speak with the bill sponsor.  He                                                               
offered  his understanding  that,  for this  defense, the  burden                                                               
shifts to the prosecutors to prove beyond a reasonable doubt.                                                                   
REPRESENTATIVE  GRUENBERG  agreed,  and suggested  that  this  be                                                               
written into  Version E.   In response to  Representative Herron,                                                               
he explained that this is a  convoluted area of law, which is not                                                               
clarified in Version E.  He  suggested that making this change in                                                               
Version E could better clarify the law.                                                                                         
1:46:23 PM                                                                                                                    
REPRESENTATIVE HOLMES  expressed her concern with  gang violence.                                                               
She offered her  belief that Version E would extend  the "no duty                                                               
to retreat" to public places such  as malls and parks.  She asked                                                               
if this might unwittingly legalize gang violence.                                                                               
MS.  CARPENETI agreed  that DOL  also shared  this concern.   She                                                               
said  that the  burden of  "beyond a  reasonable doubt"  could be                                                               
difficult to  prove for either side.   In response to  a question                                                               
from Representative  Gatto, she explained that  for this defense,                                                               
the prosecution has the burden  of disproving beyond a reasonable                                                               
doubt, as defined in the justification section of Title 11.                                                                     
MS. CARPENETI, in response to  Representative Gatto, said that it                                                               
would be unusual  to have this written in two  places in the law,                                                               
as it could lead to confusion.                                                                                                  
1:48:58 PM                                                                                                                    
BRIAN JUDY,  Senior State Liaison,  National Rifle  Association -                                                               
Institute for  Legislative Action  (NRA-ILA), offered  his belief                                                               
that the intent of the bill is  to allow a person to kill someone                                                               
who  criminally  threatens  him/her.    He  said  there  are  two                                                               
questions  to  answer  when  someone  is  criminally  threatened:                                                               
first, is  there justification for  deadly force; and  second, is                                                               
there the  possibility for retreat  in complete safety.   The NRA                                                               
believes  that  no one  should  have  to  be burdened  with  this                                                               
determination if  they are  in a  lawful place.   He  agreed that                                                               
there may  still be a  need to justify  their action.   He opined                                                               
that Version  E merely removed  the duty  to retreat.   He opined                                                               
that  gang   violence  was  an  issue   where  justification  was                                                               
necessary.   He stated that  NRA just  wanted to protect  the law                                                               
abiding citizen.                                                                                                                
REPRESENTATIVE HERRON declared  that HB 381 [Version  E] would be                                                               
set aside until later in the meeting.                                                                                           
                     HB 381 - SELF DEFENSE                                                                                  
2:27:44 PM                                                                                                                    
CHAIR RAMRAS announced  that as its final order  of business, the                                                               
committee would return to the hearing  on HOUSE BILL NO. 381, "An                                                               
Act relating  to self  defense."  [Before  the committee  was the                                                               
proposed committee substitute  (CS) for HB 381,  Version E, which                                                               
had been adopted as the work draft earlier in the meeting.]                                                                     
CHAIR  RAMRAS, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on HB 381.                                                                                     
2:28:09 PM                                                                                                                    
REPRESENTATIVE  HERRON moved  to  report  the proposed  committee                                                               
substitute (CS) for HB 381,  26-LS1534\E, Luckhaupt, 3/23/10, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying fiscal notes.                                                                                                      
REPRESENTATIVE GATTO  objected, and suggested an  oral amendment,                                                               
which he stated:                                                                                                                
     Page 1, lines 4-15:                                                                                                        
          Delete all                                                                                                            
     Page 2, lines 1-2:                                                                                                         
          Delete all                                                                                                            
He opined that this would retain the essence of the bill.                                                                       
CHAIR RAMRAS  objected, offering his  belief that it was  not the                                                               
will of the bill  sponsor.  He asked Mr. Ellis  to agree that the                                                               
sponsor  would  include  a   statement  outlining  the  suggested                                                               
amendment from Representative  Gatto as part of  the bill package                                                               
when  it  moved  to  the  next committee.    He  opined  that  he                                                               
preferred the  specificity of  Version E,  but he  recognized the                                                               
value  of the  suggested amendment,  as it  offered an  "umbrella                                                               
over the whole bill."                                                                                                           
REPRESENTATIVE GRUENBERG  reflected that  more work needed  to be                                                               
done on the  suggested amendment.  He pointed  out that paragraph                                                               
(1)  referenced "where  this  occurs";  paragraph (2)  referenced                                                               
"who  this  applies  to";  paragraph  (3)  referenced  "where  it                                                               
occurs';  and  paragraph  (4)  referenced  "what  the  person  is                                                               
doing".  He stated that  paragraph (5) should only be substituted                                                               
for paragraphs (1) and (3).                                                                                                     
REPRESENTATIVE  HERRON  stated  that   he  did  not  support  the                                                               
suggested  amendment.    He  nominated that  the  bill  title  be                                                               
changed to "An Act relating to  self defense in any place where a                                                               
person has the right to be."                                                                                                    
REPRESENTATIVE GRUENBERG offered his  support for a title change,                                                               
and he asked if the bill sponsor would support this.                                                                            
MR. ELLIS  said that  he could  not speak  for the  bill sponsor,                                                               
Representative Neuman.                                                                                                          
2:31:42 PM                                                                                                                    
The committee took an at-ease from 2:31 p.m. to 2:32 p.m.                                                                       
2:32:45 PM                                                                                                                    
CHAIR  RAMRAS   summarized  the  suggested  amendment,   and  the                                                               
subsequent discussion.   He also  spoke about the  proposed title                                                               
REPRESENTATIVE GATTO clarified that he  had not made a motion for                                                               
an amendment.                                                                                                                   
CHAIR RAMRAS  asked Representative  Neuman, as the  bill sponsor,                                                               
for his response to a title change.                                                                                             
2:34:40 PM                                                                                                                    
REPRESENTATIVE NEUMAN expressed his  appreciation and offered his                                                               
support to a title change.                                                                                                      
2:35:09 PM                                                                                                                    
The committee took a brief at-ease.                                                                                             
2:35:40 PM                                                                                                                    
REPRESENTATIVE HERRON  [although an objection had  been stated to                                                               
the  motion to  move  the  bill from  committee  and neither  the                                                               
objection  nor   the  motion  were  withdrawn]   moved  to  adopt                                                               
Conceptual Amendment 1 for a title change, which he stated:                                                                     
     Page 1, line 1:                                                                                                            
          Following "defense"                                                                                                   
       Insert "in any place where the person has a right                                                                        
     to be."                                                                                                                    
There being no objection, Conceptual Amendment 1 was adopted.                                                                   
2:36:13 PM                                                                                                                    
REPRESENTATIVE HERRON restated his  motion to report the proposed                                                               
committee  substitute  (CS)  for  HB  381,  Version  26-LS1534\E,                                                               
Luckhaupt, 3/23/10, as amended,  out of committee with individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no  objection,   CSHB  381(JUD)  was  reported   from  the  House                                                               
Judiciary Standing Committee.                                                                                                   

Document Name Date/Time Subjects
08 HB381 Proposed HJUD CS.pdf HJUD 3/29/2010 1:00:00 PM
CS HB 381 Sponsor Statement HJUD.pdf HJUD 3/29/2010 1:00:00 PM
HB 381