Legislature(2017 - 2018)GRUENBERG 120
03/28/2018 01:00 PM JUDICIARY
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HB 75-GUN VIOLENCE PROTECTIVE ORDERS 1:06:37 PM CHAIR CLAMAN announced that the first order of business would be HOUSE BILL NO. 75, "An Act relating to gun violence protective orders; relating to the crime of violating a protective order; relating to a central registry for protective orders; relating to the powers of district judges and magistrates; requiring physicians, psychologists, psychological associates, social workers, marital and family therapists, and licensed professional counselors to report annually threats of gun violence; and amending Rules 4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of Administration." [Before the committee was proposed committee substitute (CS), Version 30-LS0304\R, Martin, 3/26/18, adopted by the committee during the 3/26/18, 7:00 p.m. meeting.] 1:07:49 PM CHAIR CLAMAN asked Captain Dan Lowden whether, in terms of standard procedure for state troopers and VPSOs, there is a difference in how domestic violence protective orders are served today, and to describe the general practice when serving domestic violence protective orders. 1:08:32 PM CAPTAIN DAN LOWDEN, Deputy Commander, Division of Alaska State Troopers, Department of Public Safety, responded that this question is best answered by Sergeant Matthew Hightower. 1:09:18 PM MATTHEW HIGHTOWER, Sergeant, Alaska State Troopers, Department of Public Safety, answered that there is no difference between how an Alaska State Trooper and or a Village Public Safety Officer (VPSO) would serve a domestic violence protective order. He explained that the domestic violence protective order is entered into the Alaska Public Safety Information Network (APSIN) database as well as its Records Management System (RMS), and they serve the respondent with little delay to no delay, if possible. 1:09:47 PM CHAIR CLAMAN asked whether the department typically sends one state trooper or VPSO out to serve a domestic violence protective order, or whether the service is typically a team of two officers. MR. HIGHTOWER responded that it depends upon who is being served and whether the division has any prior knowledge of possible officer safety concerns. The division may choose to go with more than one or more than two officers, but typically, he said, the order is served by either one state trooper, court service officer, or VPSO. 1:10:27 PM CHAIR CLAMAN asked whether there is a difference between rural settings and urban settings in terms of the standard practice of the state troopers. MR. HIGHTOWER responded that there is not a particular difference, although it takes a bit more time in rural settings. Typically, (indisc.) protective order in the same day and if there is no VPSO in the village, there may be a delay in the service of the protective order due to air flights or weather delays, and so forth. 1:10:56 PM CHAIR CLAMAN offered a scenario wherein law enforcement had knowledge that the respondent being served a domestic violence protective may have a firearm, and he asked how that knowledge would impact practices. MR. HIGHTOWER asked Chair Claman to clarify his question. 1:11:29 PM CHAIR CLAMAN asked whether the state troopers assume everyone being served a domestic violence protective order probably has a firearm in the house. MR. HIGHTOWER answered in the affirmative. 1:11:38 PM CHAIR CLAMAN noted that based on Mr. Hightower's understanding of CSHB 75, how would a gun violence protective order compare to a domestic violence protective order when serving those orders. MR. HIGHTOWER answered that there would not be any difference other than the actual document that is being served on the respondent. He added that the state troopers follow the provisions of the protective order and remove any property under that order. 1:12:14 PM CHAIR CLAMAN asked the frequency that state troopers and VPSOs are involved in serving domestic violence protective orders currently. MR. HIGHTOWER deferred to Captain Dan Lowden. 1:12:35 PM CAPTAIN LOWDEN answered that in 2017, 1,360 domestic violence protective orders were served, and the state troopers received approximately 1,937 requests. As to the stalking orders, he advised that 265 protective orders were served, "and we had received an additional 66 orders for a total of 344 stalking orders received in 2017." 1:13:28 PM CHAIR CLAMAN requested a description of the Department of Public Safety's (DPS) policy regarding the storage of weapons. CAPTAIN LOWDEN responded that the process for taking a weapon into custody is as follows: the serial number is run through the state and national databases to determine whether the weapon was stolen; and all information regarding that weapon is recorded, such as, the make, model, caliber, barrel length, serial number, and so forth. Under the right circumstances, he explained, if the person "is there" and the state troopers know the owner, they would probably give the person a receipt for the weapon "if we had it in our custody, but not all of the time." He continued explaining the storage of weapons process as follows: after returning to the office with the weapon, it would be packaged in specially designed boxes for the storage of weapons in the evidence room, enter that weapon into the RMS system, list it with the associated incident number, and place it in the evidence locker for storage. 1:15:05 PM CHAIR CLAMAN asked that if this legislation becomes law, whether the state troopers would have enough storage capacity to manage the weapons storage that may be required under gun violence protection orders. CAPTAIN LOWDEN answered that the difficulty in pinning the number down to a definitive answer is that this legislation moves into new territory and the number of weapons to expect is unknown, but storage is at capacity in many of the rural evidence lockers. Different commanders have advised, he said, that they are using alternative storage for items already in storage, and the Bethel State Troopers are using one of their holding cells to store firearms. He opined that it probably would not take many weapons for the division to look at some sort of alternative storage capacity in handling the weapons. 1:16:19 PM CHAIR CLAMAN surmised that it would depend on the number of gun violence protective orders which were served in one year statewide, as to the different management problems it would create. CAPTAIN LOWDEN replied that Chair Claman was correct, it is based on the number of protective orders received and the number of weapons a particular person may possess. He opined that many folks in Alaska probably own dozens or scores of weapons. 1:16:56 PM CHAIR CLAMAN asked whether the provision allowing custody of the weapons by a court approved third-party would provide some relief for the potential storage use issues. CAPTAIN LOWDEN answered that court approved third-party possession of the weapons could possibly assist, except it would be difficult for a person to obtain court approved third-party possession within the 48-hour time period, or the instantaneous seizure under the ex parte order. Although, he acknowledged, it would still be helpful for a court approved third-party to come forward and take the weapons into their custody within a week or two weeks of the seizure. 1:18:06 PM CHAIR CLAMAN requested information as to whether the state troopers or VPSOs are involved in the warrantless seizure of weapons from individuals. CAPTAIN LOWDEN responded that weapons are seized without a warrant under several conditions and exemptions, such as: whether there are existent circumstances to the search warrant rules; a weapon in plain sight, such that the state troopers make contact with someone and a weapon is sitting on the coffee table; weapons visible via gun racks in pickup trucks would be seized; and a pat down search revealing a weapon. Under current law, a person must notify the police officer during contact that they are carrying a concealed weapon and allow the officer to secure the weapon if they so desire during the contact, in the event something arose that caused the police officer concern or the person was arrested, the weapon would not be returned under this legislation. Normally, on routine contacts, the weapon would be given right back to the person at the scene. He reiterated that there are several ways within which the state troopers seize weapons without a warrant. 1:20:23 PM REPRESENTATIVE EASTMAN offered a scenario where the state troopers encountered an individual who had not committed a crime but was in possession of a weapon and it was not advisable for that person to continue possessing that weapon. He requested the authority or justification used to secure that weapon and keep it for a period of time after making contact with the person and the call was over. CAPTAIN LOWDEN opined that there is not a lot of statute authority to keep weapons under that description. He noted that "very narrowly" if there was concern about that person's wellbeing to the point of a Title 47 commitment and were hospitalized for a 72-hour observation, the situation might be such that the state troopers would secure the weapon for safekeeping at the scene, "because there's no one there to hand it off to." 1:22:04 PM REPRESENTATIVE REINBOLD requested a description of why receipts are sometimes given or not given to the person, and whether it is difficult to return the seized weapon back to the owner. CAPTAIN LOWDEN replied that when receipts are given or not given to folks depends upon the situation, and at some point, a person would most likely be given a receipt. There may be a situation, he offered, where a person and their weapons were taken into custody, and the state trooper would book the person into jail before the person would receive a receipt for the weapon. In the event a search warrant is served on a house, the state troopers are required to leave a receipt for all of the removed items at that time. He reiterated that the receipt is situationally dependent and it is not a question of choosing not to give someone a receipt, it simply depends upon the circumstances. 1:23:48 PM REPRESENTATIVE REINBOLD offered concern that not giving a person a receipt for their guns depends upon the situation, especially in warrantless cases under this bill. She noted that no one wants guns in the wrong hands, but the constitution clearly states that people have the right to bear arms. She asked Captain Lowden's opinion as to how state troopers can justify confiscating those guns after swearing to uphold the constitution. CHAIR CLAMAN, in response to Captain Lowden, explained that Representative Reinbold's question is about Second Amendment rights and how Captain Lowden addresses that issue when making a decision to seize weapons. CAPTAIN LOWDEN answered that the constitutionality of any law is decided by the courts. The state troopers receive direction through the attorney general, and at this time he is not in a position to advise Representative Reinbold what those opinions might be regarding this legislation. He commented that he knows the Department of Law reviewed this bill. CHAIR CLAMAN interjected that Representative Reinbold's question was not specific to this bill, but broadly related to warrantless seizures and taking possession of a firearm in general. 1:26:15 PM REPRESENTATIVE REINBOLD asked whether Captain Lowden takes an oath to defend and uphold the constitution. CHAIR CLAMAN remarked that Captain Lowden does take an oath to defend and uphold the constitution, and he could respond to the question about seizing weapons without a warrant. CAPTAIN LOWDEN reiterated that there are exceptions to the search warrant requirement, and circumstances where the state troopers might remove a weapon from a person without a search warrant. For example, he further reiterated, when locating a weapon on a person during a pat down; at the time of arrest; or when the weapon is in plain view; the state troopers are allowed to seize the weapon at that time. 1:27:16 PM REPRESENTATIVE KOPP asked Captain Lowden to explain the process of entering a weapon into (indisc.) for safekeeping or as evidence, what forms are used, whether the forms are in triplicate, and whether the state troopers can always get a receipt back to someone after the fact. CAPTAIN LOWDEN responded that it has been a long time since he worked the street and the state troopers now have a computerized RMS, but he would attempt to answer Representative Kopp's question. In his day, he said, physical paper forms with carbon paper were used to document the seizure. Currently, he pointed out, there are computer systems and some, if not most, of the troopers have printers in their cars to print out documents. Unfortunately for many troopers, especially those in rural Alaska, they do not have instant access to that sort of portable technology and the ability to print a receipt at that moment. He explained that the data would be entered through the computer system with the serial number, make, model, barrel length, and so forth, and the paper is copied at that point for the person to use as a receipt, or for the use of any number of people who would receive that copy. 1:29:25 PM REPRESENTATIVE KOPP referred to the rural areas of Alaska where technology is more limited, and he asked whether those areas are more likely to have the previously described property forms that list the barrel length, serial number, caliber, and all of the identifying blocks listed on the property forms to fill out in pen. He asked whether Captain Lowden was saying that those have been done away with entirely CAPTAIN LOWDEN responded that he was unaware whether the folks in rural Alaska are using paper as a backup and deferred to Captain Andrew Merrill. 1:30:18 PM CAPTAIN ANDREW MERRILL, Division of Village Public Safety Officers (VPSO), Alaska State Troopers, Department of Public Safety, responded that currently, VPSOs and state troopers in Western Alaska have access to the records management system (RMS) and that information is input directly into the system. As to the issue of receipts, he related that it depends upon the officer at the scene who views the firearm and whether they have access to any hard-copy forms. Although, he is not aware of troopers carrying hard-copy triplicate forms or other forms to give to a person. Many times, he explained, it is simply a note in their notebook describing the property seized, and some troopers will rip a notebook page out, describe the property seized, and the trooper and individual will sign the document. He related that a receipt depends upon the availability of computers, of paper, and the time of day or night, as there are many variables impacting how a receipt is provided to an individual. 1:31:35 PM REPRESENTATIVE KOPP referred to the warrantless seizure of firearms and offered a scenario where the state troopers responded to a residence or business where a crime had not been committed, but the state troopers encounter an angry or upset individual with a weapon under their immediate control. He asked Captain Lowden to describe circumstances where the weapon may be seized for safekeeping until that situation is, at least, stabilized. CAPTAIN LOWDEN answered that there may be circumstances where the state troopers receive a call that someone was threatening to cause harm to self, or they were distraught and in possession of a weapon, the weapon would be seized for safekeeping for the safety of everyone at the time. Although, he said, the state troopers try to keep that situation to a minimum and they would look for a possible family member [to take possession of the weapon] or some other way to keep everyone safe. 1:33:14 PM REPRESENTATIVE LEDOUX offered a scenario of someone writing on Facebook, "I am really mad at the world. I think I'm going to go into a school and start shooting people." She asked whether that person would be taken into custody and their guns seized, or move for an involuntary commitment, or what, if anything, would Captain Lowden do currently. CAPTAIN LOWDEN reiterated that it has been a long time since he worked the street, but he wants to make clear that the state troopers are not out there monitoring people's Facebook pages at random. In the event someone brought this post to the attention of the state troopers, they would make an effort to make contact the person and through interviewing the person, their family, their friends, and so forth, gather an understanding of what was going on with that person and why they made that post. Currently, in the event the situation was such that the troopers believed someone was a danger to self or others, and may suffer from some mental difficulties, the troopers would move for a Title 47 commitment to have that person taken to a facility for evaluation. As to whether the weapons would be seized at that point would depend upon the circumstances and the situation. In the event the situation was such that the person was living with other family members and those family members convinced the troopers that they could properly secure the firearms, the troopers may very well look at all of the options and possibly leave the firearms with a family member. The first thing the troopers would do is find the person and try to determine what was actually taking place, he reiterated. 1:36:31 PM REPRESENTATIVE LEDOUX described that not all people who shoot other people necessarily have a mental illness, they are quite sane and are simply bad people. She asked Captain Lowden to describe the process for someone who the troopers believe will probably shoot someone except they are not mentally ill and they have not yet committed a crime. CAPTAIN LOWDEN said that he believes he understands Representative LeDoux's question, but where he might depart from Representative LeDoux is that most likely a crime would have been committed. He paraphrased an Alaska law, as follows: A prohibited act of threatening bodily harm to people with dangerous instruments. CAPTAIN LOWDEN explained that "You don't actually have to hurt them, you don't have to shoot at them, or those sorts of things," but there is the ability to make an arrest and charge someone for making threats to harm other people. 1:38:26 PM REPRESENTATIVE LEDOUX said that she assumes the threat to harm someone is that if she wrote on her Facebook page, for example, "I'm going to shoot Representative Eastman," and Representative Eastman saw that Facebook post, and it was a threat to someone specifically. She then offered that there is a generalized post, "I don't like the world. I'm just going to out and kill a few people" which is not a threat to shoot anyone in particular, and the person they shoot may not even see this threat. She asked whether those scenarios would come under this statute. CAPTAIN LOWDEN opined that it probably would [come under this statute] depending upon what the words were and the other actions the person took to communicate that threat. He said that he does not believe it has a requirement that the threat be made against a specific person, but rather the circumstances. He related that he is not suggesting that the people who make these threats are posting in a light manner, such as the people who make stupid comments in the TSA line and are pulled out of line immediately and questioned about their comments. The threat needs to be to a specific person, he stated, but the state troopers would have to look at the totality of the whole situation and, as in many cases, the troopers would have to make a judgement call on whether that behavior was criminal. 1:41:00 PM REPRESENTATIVE LEDOUX asked Chair Claman whether someone from the criminal division of the attorney general's office could address that question. CHAIR CLAMAN advised that her request could not be addressed today because the committee was moving to other bills, and suggested that the following cites may address many of the issues Captain Lowden addressed, as follows: AS 11.56.807. Terroristic Threatening in the First Degree. (a) A person commits the crime of terroristic threatening in the first degree if the person knowingly sends or delivers a bacteriological, biological, chemical, or radiological substance or an imitation bacteriological, biological, chemical, or radiological substance and, as a result, (1) places a person in reasonable fear of physical injury to any person; (2) causes evacuation of a building, public place or area, business premises, or mode of public transportation; or (3) causes serious public inconvenience. (b) In this section, (1) "bacteriological, biological, chemical, or radiological substance" means a material that is capable of causing serious physical injury; (2) "imitation bacteriological, biological, chemical, or radiological substance" means a material that by its appearance would lead a reasonable person to believe that it is capable of causing serious physical injury. (c) Terroristic threatening in the first degree is a class B felony. AS 11.56.810. Terroristic Threatening in the Second Degree. (a) A person commits the crime of terroristic threatening in the second degree if the person knowingly makes a false report that a circumstance (1) dangerous to human life exists or is about to exist and (A) a person is placed in reasonable fear of physical injury to any person; (B) causes evacuation of a building, public place or area, business premises, or mode of public transportation; (C) causes serious public inconvenience; or (D) the report claims that a bacteriological, biological, chemical, or radiological substance that is capable of causing serious physical injury has been sent or is present in a building, public place or area, business premises, or mode of public transportation; or (2) exists or is about to exist that is dangerous to the proper or safe functioning of an oil or gas pipeline or supporting facility, utility, or transportation or cargo facility; in this paragraph, "oil or gas pipeline and supporting facility" and "utility" have the meanings given in AS 11.46.495 . (b) Terrorist threatening in the second degree is a class C felony. [HB 75 was held over.] HB 75-GUN VIOLENCE PROTECTIVE ORDERS 2:50:58 PM CHAIR CLAMAN announced that the House Judiciary Standing Committee would return to discussions regarding HOUSE BILL NO. 75, "An Act relating to gun violence protective orders; relating to the crime of violating a protective order; relating to a central registry for protective orders; relating to the powers of district judges and magistrates; requiring physicians, psychologists, psychological associates, social workers, marital and family therapists, and licensed professional counselors to report annually threats of gun violence; and amending Rules 4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of Administration." CHAIR CLAMAN noted that Representative LeDoux had requested that a representative from the Department of Law (DOL) answer questions related to someone posting on Facebook that they are angry and wants to cause serious harm, and then goes to a school and shoots some folks, wherein for purposes of this question, there was no basis for a Title 47 hold. In that regard, he asked Kaci Schroeder, DOL, to come forward and explain the options the police or the state troopers would have, and what crimes they might be able to arrest someone for in that setting. 2:51:55 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Legal Services Section, Department of Law, responded that there are several statutes the DOL can look at when dealing with someone making threatening types of statements, as follows: assault, wherein someone makes, by words or other conduct, threatens someone and they are potentially in fear of an assault, which is assault in the fourth degree; and harassment in the second degree is probably most applicable to the above- hypothetical circumstances offered wherein someone posts something on line about perhaps shooting up a school or causing other damage. Recently, she advised, the DOL prosecuted someone for posting on another person's Facebook page, "You are going to get assassinated." She explained that the person was prosecuted under the harassment in the second-degree statute. 2:53:05 PM REPRESENTATIVE LEDOUX clarified that she was discussing a more generalized post that did not list the school, and instead posted that they were mad at the world and were going to blow up some people. MS. SCHROEDER answered that the DOL would look at that type of posting on a sliding scale type of analysis. The more generalized the statement, the harder it would be for the DOL to prosecute as a crime. The more specific it is and the more imminent it reads to be, the better chance there is of prosecuting it as a crime. 2:53:50 PM REPRESENTATIVE LEDOUX surmised that under her scenario, the DOL "would not do anything." MS. SCHROEDER described Representative LeDoux scenario as "very general," and that is not to say the DOL would not do anything. The department may use that scenario as a reason to begin an investigation into the person to determine whether the person plans to take steps in furtherance of their statement. In the event the discussion is about a student in a school situation, the schools can also take steps, such as suspension and so forth, that are short of criminal actions, she explained. A wide range of steps can be taken, short of criminal action, when someone is making threatening statements, she offered. 2:54:36 PM REPRESENTATIVE LEDOUX stressed that her previous comment was not meant as a criticism. Representative LeDoux explained that she was trying to determine whether this bill was necessary, or whether, under current law, when someone is angry and threatens to "go and murder ten people," they can be arrested and their weapons removed. MS. SCHROEDER responded that based on that statement alone and nothing else took place, it would be difficult to prosecute. 2:55:19 PM REPRESENTATIVE EASTMAN noted that under this bill, weapons can be seized, and asked what the process would be if the owner of the weapons dies while those weapons are held by law enforcement. MS. SCHROEDER answered that she could not answer the question because she has not thought through to the death of someone, which gets into disposal of property. CHAIR CLAMAN commented that it sounds like an estate matter. 2:56:21 PM CHAIR CLAMAN remarked that he became familiar with the terroristic threatening statutes in the early 1990s while involved in a criminal case wherein someone was charged for the direct threat of words or conduct. Subsequent to his citing the terroristic threatening statutes to the committee today and a conversation with Ms. Schroeder regarding the current version of the terroristic threatening statutes, he said that he realized the defendant, while speaking to another person on the telephone and clicking their pen next to the telephone to replicate a gun being opened and closed, would not be charged today under the terroristic threatening statutes. [HB 75 was held over.]