Legislature(2017 - 2018)GRUENBERG 120
04/06/2018 01:00 PM JUDICIARY
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HB 75-GUN VIOLENCE PROTECTIVE ORDERS 7:47:22 PM CHAIR CLAMAN announced that the final 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 the proposed committee substitute for HB 75, labeled 30-LS0304\R, Martin, 3/26/18, and Version R was adopted as the working document on 3/26/18.] CHAIR CLAMAN passed the gavel to Vice Chair Kreiss-Tomkins. 7:48:10 PM REPRESENTATIVE CLAMAN moved to adopt Amendment 1, labeled 30- LS0304\R.1, Martin, 3/27/18, which read as follows: Page 10, lines 16 - 18: Delete all material and insert: "* Sec. 9. AS 22.35.030 is amended to read: Sec. 22.35.030. Publication of Records [RECORDS CONCERNING CRIMINAL CASES RESULTING IN ACQUITTAL OR DISMISSAL]. The Alaska Court System may not publish a court record of a (1) criminal case on a publicly available website if 60 days have elapsed from the date of acquittal or dismissal and (A) [(1)] the defendant was acquitted of all charges filed in the case; (B) [(2)] all criminal charges against the defendant in the case have been dismissed and were not dismissed as part of a plea agreement in another criminal case under Rule 11, Alaska Rules of Criminal Procedure; (C) [(3)] the defendant was acquitted of some of the criminal charges in the case and the remaining charges were dismissed; or (D) [(4)] all criminal charges against the defendant in the case have been dismissed after a suspended entry of judgment under AS 12.55.078; or (2) gun violence protective order under AS 18.65.815 or 18.65.820, unless the court grants a petition under AS 18.65.815; if a court grants the petition, the Alaska Court System shall publish the court record of the proceeding within 10 days after the date the protective order is issued." REPRESENTATIVE STUTES objected for purposes of discussion. 7:48:12 PM REPRESENTATIVE REINBOLD declared a point of order. She said that she wants her amendments to be timely and asked when amendments 1-7 were submitted. VICE CHAIR KREISS-TOMKINS ruled that Representative Reinbold could speak with Chair Claman after the meeting. 7:48:47 PM CHAIR CLAMAN explained that Amendment 1 is a response to a clarification brought forward by the Alaska Court System (ACS) to be certain the language read that a publication on CourtView would only occur if there was a "contested order," which meant that the individual had a right to be heard. In the event an ex parte order hearing took place and a gun violence protective order was issued, it would not be listed on CourtView [because the respondent was not present at that hearing.] The only time a CourtView record of this proceeding would occur would be when the individual had a chance to be heard and the court had made a ruling. 7:49:33 PM REPRESENTATIVE EASTMAN asked what language is deleted. REPRESENTATIVE KOPP asked that Nancy Meade come forward to respond to committee questions. 7:50:01 PM NANCY MEADE, General Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, advised that a Version R sentence read that the Alaska court System (ACS) may not publish a court record of a protective order on a publicly available website. She related that she was seeking clarity in order for the ACS to perform exactly what the committee desired. Therefore, Amendment 1 clarifies that what the ACS will do (indisc.) only if (indisc.) when the long-term protective order is issued. In the event there is a petition for a short-term order, ACS would handle the case in the normal course but nothing would be posted to CourtView because the proceeding was ex parte. She pointed out that until and if, a long-term order was issued, which only occurs after the respondent has had a chance to appear in court and receive full due process. Amendment 1 clarifies that that is the process the ACS would perform, which she believed was the intent of the "less clear" wording in the original version of the bill. 7:51:24 PM REPRESENTATIVE EASTMAN referred to Amendment 1, page 1, line 22, which read: "proceeding within 10 days after the date the protective order is issued." REPRESENTATIVE EASTMAN asked how the 10-day language compares or contrasts to "other things" posted on CourtView. MS. MEADE answered that this language is a bit different because, typically, (indisc.) CourtView with few exceptions. The exceptions, she explained, are located in the existing language of AS 22.35.030, above the newly inserted wording at the bottom of page 1 of the amendment. She explained that ACS does remove criminal cases, but the default is always to (indisc.) if they are public records, 60 days after an acquittal or dismissal of all charges if that is what occurs. Typically, she said, protective orders are posted on CourtView, even the ex parte, and it was the intent of the sponsor and the committee that these could implicate some sensitive matters. At the ex parte stage, in particular, it may not be fully appropriate to publicize that this was occurring without full due process for the respondent. After the full due process, she pointed out, the ACS would post it on the website, and the 10-days simply gives ACS a chance to get the record together to post. 7:52:46 PM REPRESENTATIVE EASTMAN asked that when the ACS deals with a domestic violence protective order, whether the deadline is 10- days or whether it carries a different deadline. MS. MEADE responded that the ACS posts everything about domestic violence protective orders the minute they are filed. Amendment 1 reflects what she believed was the committee's intent to be more protective in these protective order proceedings because they do implicate a bit more of a privacy interest of the respondent. Therefore, the ACS would delay and perhaps never post these proceedings unless and until that whole due process hearing had taken place. 7:53:39 PM REPRESENTATIVE KOPP asked the standard the court uses to make the finding on the 6-month protective order. MS. MEADE answered that that is what she had been referring to as the longer-term order, covered under HB 75, Section 7, AS 18.65.815(a). The long-term protective order proceeding is not ex parte; the respondent has notice of the hearing and can be present. She then referred to page 4, lines 13-15, subsection (b) which read as follows: If the court finds by clear and convincing evidence that the respondent is a dangerous individual, regardless of whether the respondent appears at the hearing, the court may order relief available under (c) of this section. 7:54:26 PM REPRESENTATIVE KOPP surmised that with this amendment it is only after the long-term protective order is issued, and at that point the protective order would be available for publication. MS. MEADE answered that 10-days after the issuance of that protective order, it would be posted within those 10-days. 7:54:54 PM REPRESENTATIVE STUTES withdrew her objection to Amendment 1. REPRESENTATIVE EASTMAN objected to the adoption of Amendment 1. 7:55:17 PM REPRESENTATIVE LEDOUX surmised that this still allows this to go up on CourtView, there is not a (indisc.). MS. MEADE reiterated that, if and when, the six-month protective order is granted by the court, it would then be posted on CourtView. She explained that up until that time, Amendment 1 would advise the court to not post the protective order, which is an exception to the normal rule of generally posting everything. REPRESENTATIVE LEDOUX commented that it would be appropriate to post a long-term protective order on CourtView if the protective order is because Person A stated they would blow up Person B. Except, possibly Person A is severely depressed and is thinking about killing themselves. That posting process strikes her as wrong and she said she did not know whether there was a manner in which to "separate things." MS. MEADE responded that there is truly no way of separating them from the case; however, the information posted on CourtView is not the content of the order or the petition listing the allegations, or any facts about the case. CourtView is not a screen shot of anything filed in the case, she explained, it is a docket sheet and contains the date of the petition for the long-term gun violence protective order, and the date order issued. It would not disclose any of the facts in which Representative LeDoux was concerned, she explained. 7:57:43 PM REPRESENTATIVE LEDOUX agreed, and she argued that anyone who is curious enough to look on CourtView might find someone with a gun violence protective order and lead the person to the courthouse [to review the court file]. Whereas, she pointed out, if it was not posted on CourtView, the person may not have been led to the courthouse. MS. MEADE replied that that would be a policy call for the legislature to advise the court of the process it desired. The default for the Alaska Court System (ACS) is that everything is published unless there is a specific guidance not to post something. For example, divorce cases can oftentimes contain "interesting or even salacious" information and people can always come to the courthouse and review the record. The ACS views the records as public records, which is the price of a democracy wherein people are allowed to review records and hold the court accountable by looking, and so forth. She said she recognizes there is another side to this issue. 7:58:48 PM REPRESENTATIVE LEDOUX acknowledged Ms. Meade's explanation, except the concern is that the committee is currently struggling with whether to allow the gun violence protective order in the first place. She stated that she wants to make certain that a person who is thinking of causing harm to self, and not to others, is not posted, and she asked how to reach that goal. MS. MEADE responded that that would be "extremely difficult and problematic for the court," as it has no precedence for deciding what to post or not post depending upon the actual facts of the case. The problem, she explained, is there could be a discrepancy depending upon someone's view of the case, and the court system does not prefer the possible direction that, "if it would be X, then posted it, and if it wouldn't be, don't post it." In other words, she offered, the court system can perform the black and white line of full acquittal cases being taken off CourtView. Except, if the posting requires discretion and analyzing the facts of the case, that becomes a problem. 8:00:38 PM REPRESENTATIVE LEDOUX commented that the legislature could also remove suicides from CourtView as a policy call. MS. MEADE answered that the legislature could make that policy call. 8:00:54 PM REPRESENTATIVE KOPP said that he had been considering the number of tragic suicides he has worked, and how difficult it is for families to accept "suicide" on the Death Certificate. Suicide, he described, is an awful scourge in Alaska. He offered that when considering the merits of this discussion, if the risk, as Representative LeDoux pointed out, is strictly toward oneself, and a loved one wants to remove a temptation and possibly bide more time to find help for the individual, it all comes down to the definition of "dangerous individual" and under what circumstance a case would be posted on CourtView. He referred to Amendment 1, page 1, lines 20-22, and suggested inserting "in cases of immediate risk of injury to others," between "the petition" and "the Alaska Court System", thereby "making it clear that if the only sense of harm, and it can be immediate where the court would issue it, but in those cases for possible mental health reasons." He opined that the mental health professional treatment community would probably be supportive of not having those cases posted because it might help people to not be singled out for what may be a temporary traumatic event. He commented that he is empathic with Representative LeDoux's position on this issue. 8:03:12 PM CHAIR CLAMAN asked Ms. Meade whether Title 47 involuntary commitments are posted on CourtView currently. MS. MEADE responded that they are not posted. 8:03:29 PM REPRESENTATIVE EASTMAN offered a scenario of an individual who was known to be depressed and suicidal at certain times of the year due to losing a loved one at that time. He asked that if it is known that someone will be "in a bad way" for a specific period of time, how would the court respond to that type of situation. He asked whether that scenario would be under AS 18.65.815 or 18.65.820, and if it is under AS 18.65.820 and the person is known to be dangerous "but not yet," whether the court would entertain an AS 18.65.820.820 in that type of situation, or would it determine that it must go the AS 18.65.815 route. MS. MEADE pointed out that the person files whatever protective order they desire, they can check a box and ask for an ex parte, they can solely ask for the six-month long-term protective order, or ask for both protective orders. At least in the domestic violence protective order situation, it is not uncommon for the court to advise that they would not grant the ex parte because "I don't think you need it within the next 20 days; however, I'll hold it over for the hearing on the long-term and in two weeks, or 19 days. We'll have the long-term hearing; the respondent will be there and it will be a full due process hearing and we can work out whether you need it for the next six months." She reiterated her previous testimony wherein ex parte hearings are looked at with the knowledge that being ex parte and one party is not present, the judicial officer must think of all of the consequences and ramifications of granting a protective order in the absence of one of the parties. In the event someone comes in in October requesting the short-term protective order because the person may have a problem in December, she imagined the court would determine that the ex parte proceeding was not necessary and would set a long-term proceeding, she reiterated. 8:06:08 PM REPRESENTATIVE EASTMAN offered another scenario regarding AS 18.65.815 where it was known that during the week of Christmas it would be "very bad" and possibly this individual crosses the threshold and becomes a dangerous individual. He asked the discretion the court holds in that type of situation, under this bill, if the court wants to make it only for a particular week, and whether the court has the discretion to set solely for that period of time. MS. MEADE answered that this bill reads that the protective order expires six months after its issuance unless dismissed earlier by the court at the request of the peace officer or the respondent via a hearing. In that sort of situation, she said that she feels certain a judicial officer would say that they have concerns about this week, and to look at this order again on January 6th to determine whether it was necessary that the protective order stay in effect. 8:07:16 PM REPRESENTATIVE EASTMAN surmised that if the court decided at the end of Christmas week that there was not a need for any additional time, but that person did receive an AS 18.65.815 and it lasted 7 days. He said he assumed from this amendment that that person's name would be posted on CourtView. MS. MEADE agreed, and she pointed out that Amendment 1 tells the court system to post it once the order is issued, that would be a long-term order and it would be posted. 8:07:54 PM REPRESENTATIVE EASTMAN maintained his objection to Amendment 1. 8:08:00 PM REPRESENTATIVE LEDOUX offered that she was considering a conceptual amendment to Amendment 1 in line with the language suggested by Representative Kopp. REPRESENTATIVE KOPP referred to Amendment 1, page 1, line 21, and recommended adding one more situation where the court may not publish a court record," Sec. 22.35.030(2), which would read as follows: The Alaska Court System may not publish a court record of a gun violence protective order under AS 18.65.815 or 18.65.820 unless the court grants a petition under AS 18.65.815 or a respondent who is determined to be dangerous to others; if a court grants the petition, the Alaska Court System shall publish the court record of the proceeding within 10 days after the date the protective order is issue. REPRESENTATIVE KOPP explained that in the above manner, it could not be misread that the language is not talking about harm to self. The reason for the language "dangerous to others" is due to the definition for "dangerous individual," and he paraphrased as follows: An individual is considered dangerous if the individual represents an immediate risk of personal injury to self or others. REPRESENTATIVE KOPP opined that in those few words it would direct the court that if the gun violence protective order was issued due to a self-harm threat, it would not be posted on CourtView. 8:09:43 PM VICE CHAIR KREISS-TOMKINS asked Chair Claman whether he preferred to continue down the conceptual amendment path or to hold Amendment 1 in order to redraft the amendment. CHAIR CLAMAN asked Ms. Meade whether an amendment such as is being proposed is even manageable for the Alaska Court System (ACS) because it sounded like ACS is not accustomed to digging into the details of any particular order prior to deciding what is and is not posted on CourtView. MS. MEADE answered that Chair Claman was correct because the decision of posting on CourtView is determined by an IS clerical person who simply looks at a case number and knows that it is posted 10 days later. The proposed conceptual amendment would cause someone to have to open the file and that is not something the court system could do, and she did not know whether it would take money, and how many of these cases there would be, but it is not something the court system has ever performed previously and it would cause a bit of a problem. 8:10:52 PM REPRESENTATIVE STUTES surmised that the proposed conceptual amendment would require someone reading almost every case, and it could bring on a huge fiscal note. MS. MEADE responded that she was afraid that may be the case and she would have to seriously consider how that might be accomplished. 8:11:35 PM REPRESENTATIVE STUTES surmised that basically the cases are posted through Anchorage and the clerks have no way of telling, by the information they receive, how to perform the posting. MS. MEADE answered that Representative Stutes was correct, there could be some type of solution such as indicating that an AS 18.65.815 protective order was for suicide. To possibly add "a new thing" so the administrative clerks know that only if it is an AS 18.65.815 is it posted. She suggested that the suicide cases are separate -- a whole separate proceeding from "the danger to other ones." In the event it was depicted in that manner, she said that she could see the administrative clerks having just the check box for which protective orders are posted, i.e., AS 18.65.815 protective orders are posted and AS 18.65.17 are never posted, or something along that manner. She stressed that she has only given thought to this issue during these last few minutes. 8:12:26 PM REPRESENTATIVE LEDOUX agreed, and she suggested depicting directly on the form "danger to self is not posted, and danger to others is posted." MS. MEADE expressed that that is indeed on the form; however, there is not a picture or anything on Court View. REPRESENTATIVE LEDOUX expressed that she understands that fact, but when the administrative clerk is deciding what to post on CourtView, what is so difficult about looking at this form that could be created that read "danger to self is not posted" in large bold letters, and "danger to others is posted." MS. MEADE related that she did not want to sound like she was putting up roadblocks because she truly was not, the risk of problems with that suggestion is that there are 42 different court locations and hundreds of people inputting information on CourtView. The court system wants to keep it mechanized to minimize the potential for errors as the court system does not have an audit function in CourtView and if something can be written into a computer script and make it work, then the court system has confidence in what is being posted. In the event the Barrow administrative clerk, for instance, must go in and determine which box to check and somehow get that factual matter as opposed to just a statute directed to the IS department in Anchorage who takes information off of CourtView, and so forth, there could be problems. 8:14:16 PM REPRESENTATIVE KOPP referred to domestic violence protective orders and offered the following: You know how it's just a check the box for the judges, and they make their findings, and there's only like one little paragraph where there is extra stuff they - - they write in there as far as, you'll also take this and this or help the victim with that. MS. MEADE acknowledged that she is familiar with that form. REPRESENTATIVE KOPP noted that there are domestic violence protective orders forms, and suggested making a form for a gun violence protective order and the findings would be "first check boxes, immediate risk of serious injury to self, immediate risk of serious injury to others." It would be user friendly and readily ascertainable for a court to know whether or not that should be posted on CourtView, he offered. MS. MEADE answered that the court system absolutely intends to make such a form should this bill pass, and it will create forms that are similar and on the same simple reading level as the domestic violence protective orders because those pieces of paper are taken by law enforcement and served on the respondent. The issue, she explained, is how that fact is input into CourtView because it does not have fields for typing facts, it would require a modification to CourtView because it is not similar to an Excel spreadsheet where a person can type in different factors or different considerations. CourtView does have a field for a statute and the court system would be able to make AS 18.65.820 orders issued. Again, she offered, if there was an AS 18.65.817 protective order that was different, a danger to self order or a suicide danger order then it could be done. However, she related, it would take a rewriting of the bill, because with one order covering two different possible scenarios, the CourtView database cannot distinguish between the two scenarios. 8:16:37 PM CHAIR CLAMAN referred to CSHB 75, Version R, [Sec. 9, AS 22.35.030(b)] page 10, lines 16-18, which read as follows: (b) The Alaska Court System may not publish a court record of a protective order issued under AS 18.65.820 on a publicly available website. CHAIR CLAMAN explained that this amendment came about due to the section which read that the court may not publish under AS 18.65.820 ex parte order. The court system approached him and raised questions because it believed this particular language was ambiguous and required clarity. Therefore, the question this amendment raises is not the grand issues of CourtView. He reminded the committee that the issues of CourtView have periodically been debated in the House Judiciary Standing Committee and each time the committee travels down that rabbit hole, it discovers that CourtView is complicated, many people are unhappy with some of the information posted, and CourtView does not provide the depth that some people would like to believe. The more the committee tries to direct the clerks in how to post in CourtView, the committee is actually inviting errors and inviting people to be incredibly unhappy because an administrative clerk in the courthouse made a mistake. The only question before the committee, he stressed, is whether the committee prefers Sec. 9, AS 22.35.030(b) giving the court direction, or would the committee rather have the increased clarity that comes with Amendment 1. In the event the committee wants to spend more time on the CourtView issue, this amendment should be not be finished, but if the committee wants to decide which of the two wordings to use, it should vote now and move on to the next amendment. 8:18:19 PM REPRESENTATIVE LEDOUX pointed out that this issue is important and she is not willing to pass a bill that will post the names of people with a "suicide" protective order. VICE CHAIR KREISS-TOMKINS suggested that there probably are not the votes to pursue Amendment 1 as written, and he set Amendment 1 aside. CHAIR CLAMAN commented that if there are not the votes to then vote Amendment 1 down. VICE CHAIR KREISS-TOMKINS ruled that Amendment 1 would be set aside and the committee would proceed to Amendment 2. 8:19:22 PM CHAIR CLAMAN moved to adopt Amendment 2, labeled 30-LS304\R.15, Martin, 3/28/18, which read as follows: Page 6, line 19, following "(a)": Insert "When a court issues an ex parte gun violence protective order under AS 18.65.820, if the respondent's firearms have not already been seized, a peace officer may seize any firearms in the possession, custody, or control of the respondent when the peace officer delivers the ex parte protective order to the respondent. (b)" Reletter the following subsections accordingly. Page 6, line 20: Delete "AS 18.65.815 - 18.65.825" Insert "AS 18.65.815 or 18.65.825" Page 6, lines 24 - 27: Delete "If the respondent's firearms have not already been seized, a peace officer may seize any firearms in the possession, custody, or control of the respondent when the peace officer delivers an ex parte protective order issued under AS 18.65.820 to the respondent." VICE CHAIR KREISS-TOMKINS objected for purposes of discussion. 8:19:29 PM CHAIR CLAMAN explained that Amendment 2 is in response to concerns raised by the Alaska Department of Public Safety, Alaska State Troopers, and the distinction between an officer serving an ex parte order to seize a weapon, the respondent refusing to turn over their firearms, and the 48 hours language. The Alaska State Troopers were concerned that the language may actually lead to peace officers thinking they had to wait 48- hours after serving notice that the firearm would be seized, and then they had to return at a later time. The Department of Public Safety advised that this language would create significant increased risk to peace officers and it asked that the language be made clear that if peace officers serve an ex parte order and the respondent refuses to turn over their firearms, that their response would be in the same manner as when serving a domestic violence protective order. In the event the respondent refused to leave the house, they could be arrested for failure to follow the domestic violence protective order. In the same sense here, he offered, if the respondent refused to turn over their firearms, that refusal would be a basis for arresting that respondent. Amendment 2 is focused on law enforcement's safety and it does not change the intent of the bill language, rather it makes it abundantly clear that the officer has authority to take the firearm and for the respondent to comply with the provisions of the ex parte order. 8:21:06 PM REPRESENTATIVE LEDOUX asked that when the ex parte protective order is issued, whether the court would set forth exactly which guns are to be seized, or would the peace officer search the house for guns. Otherwise, she further asked, how would law enforcement know if someone had five guns and only turned over four guns. REPRESENTATIVE KOPP explained that Amendment 2 deals solely with the long-term protective order wherein the person has been given a 10-day notice of the hearing, to come to court and present their case, and the judge makes a ruling on the clear and convincing evidence standard, which is when the 48-hours comes into play. Obviously, he noted, there was not the extreme urgency in these cases because no one was arrested and brought to court. The reality is that most of these cases will be ex parte orders and the case will not start with a six-month order. He explained that the court starts with an ex parte proceeding and it makes a finding based on probable cause that a person is dangerous to self or others by possessing a firearm. The Department of Public Safety's concern is that, in those ex parte circumstances, the peace officers do not want to have to return 48-hours later because if the situation is truly an emergency, they may return to a very high-risk situation in order to make certain the firearms were sold, given to an authorized third party, or whatever provisions were listed in the order. It becomes riskier for the public and law enforcement when law enforcement must return a second time when the person had not complied with the order and is waiting for law enforcement's return, he pointed out. The Department of Public Safety, when serving an ex parte order, prefers to take the firearms at the time of service to prevent a second trip, and during the service of the order to give notice to the respondent that their hearing is in 10 days and the judge will decide whether law enforcement is to return the guns right back to the respondent. 8:24:33 PM CHAIR CLAMAN, in response to Representative LeDoux's question as to what guns must be surrendered, referred to Version R, Section 7, Sec. 18.65.830(a), page 4, lines 2-5, which read as follows: The petition shall describe the number, types, and locations of any firearms or ammunition the peace officer believes are owned or possessed by the respondent and the basis for the petition. CHAIR CLAMAN then referred to Version R, Section 7, Sec. 18.65.815(a)] page 6, lines 19-24, which read as follows: the court shall order the respondent to surrender to the appropriate law enforcement agency, to sell to a firearms dealer, or to deliver to a court-approved third party all firearms and ammunition that the respondent possesses CHAIR CLAMAN explained that the order would require a surrender of all firearms, and that the above language is not the issue Amendment 2 addresses. 8:25:30 PM REPRESENTATIVE LEDOUX requested confirmation that ex parte orders can only be obtained by a peace officer. CHAIR CLAMAN responded that both ex parte orders and contested orders can only be obtained by law enforcement, private individuals cannot apply. 8:25:54 PM REPRESENTATIVE LEDOUX offered a scenario of someone posting threatening comments and "nutsy things" on Facebook and the person appears dangerous. Unless the person has itemized his firearm inventory on Facebook, how would law enforcement know which firearms are in the respondent's possession, she asked. CHAIR CLAMAN answered that to some extent, law enforcement may not know and it may be that law enforcement uses its best efforts while serving an ex parte order. They may not actually collect every firearm in the person's possession, as it is not possible to legislate people to be honest. Amendment 2 is specifically making it clear under Sec. 18.65.830, that the procedures that would occur when law enforcement serves an ex parte order and what happens if the person does not comply with the officer's instructions. 8:27:42 PM REPRESENTATIVE KOPP explained that as to the gun violence protective orders if the firearms had not already been seized, based on this ex parte finding, law enforcement would have a search warrant. He referred to [CSHB 75, Sec. 18.65.820(b)] page 5, lines 18-23, which read as follows: (b) If the peace officers has not seized the firearms of the respondent before filing an ex parte gun violence protective order under this section, the peace officer shall also request a search warrant to search for and seize any firearms in the possession of the respondent. The court shall grant the request for a search warrant if the judicial officer determines that there is probable cause to believe that the respondent is a dangerous individual and in possession of a firearm. REPRESENTATIVE KOPP pointed out that law enforcement does not want to go into a house without a search warrant, and it must convince the court that it actually believes there are firearms in the house and a search warrant is necessary. Also, he said, prior to receiving the search warrant, law enforcement must convince the court that less restrictive alternatives had been tried and were ineffective, on page 5, lines 4-5. 8:29:29 PM REPRESENTATIVE EASTMAN noted that it is the responsibility of law enforcement to confiscate firearms, "the court shall grant the request for a search warrant" and asked whether there are any sidebars on that language. He offered that if law enforcement obtains this protective order and requests a search warrant, normally it would be up to the judge to determine whether the request was too vague and that the person's 1,000 acres could not be search, for example. Yet, this language read that whatever the peace officer writes down, basically the court is supposed to approve the search warrant. CHAIR CLAMAN disagreed that the court is simply supposed to approve the search warrant request, he reiterated that the court must make specific findings that there is probable cause to believe the person is a dangerous individual and they possess firearms. CHAIR CLAMAN pointed out to Vice Chair Kreiss-Tomkins that these functions are far beyond the scope of Amendment 2 because the amendment is limited to creating clarity about what happens when an officer serves a protective order. He reminded the committee that the substance of the orders had been extensively discussed in prior hearings and these questions do not pertain to Amendment 2. VICE CHAIR KREISS-TOMKINS ruled that Chair Claman's point was well taken. 8:31:21 PM REPRESENTATIVE EASTMAN surmised that if the firearms had not already been confiscated, they could be seized. Except, he said, that appears to be different than law enforcement proactively seizing firearms when someone is wearing a firearm on their hip, for instance. In the event the firearm is not visible, and law enforcement serves the protective order on the respondent, who advises law enforcement that he cannot even remember owning any firearms and does not surrender any weapons, what is the responsibility of law enforcement at that point under Amendment 2. CHAIR CLAMAN directed that Representative Eastman "is actually pretty far afield from the topic of this particular amendment." He referred to Sec. 18.65.830(a), page 6, lines 24-26, which read as follows: If the respondent's firearms have not already been seized, a peace officer may seize any firearms in the possession, custody, or control of the respondent when the peace officer delivers an ex parte protective order issued under AS 18.65.820 to the respondent. CHAIR CLAMAN reiterated that subsection (b) talks about "within 48 hours" and the law enforcement agencies believed this language was confusing and requested clarity. Therefore, in Amendment 2, the first five lines are basically creating new subsection (a) which is based on the language in that last sentence of the existing subsection (a) in the bill. It clarifies that if the firearms have not yet been seized, law enforcement may seize any firearms in the possession, custody, or control of the respondent when the ex parte protective order is served. He pointed out that it gives the peace officer a basis within which to advise the respondent to turn over their firearms, and if the respondent refuses, that would be a basis upon which to arrest the respondent. The remainder of "what was now subsection (a), and the first sentence will become subsection (b), and that becomes the circumstance under which they serve the order after a contested hearing, there is not the situation of officer safety involved," he explained. He added that this is a specific situation where a peace officer is serving an order consistent with what Representative Kopp described on subsection (b), page 5, lines 18-23, [previously typed], peace officers will have a search warrant to seize any firearms in the possession of the respondent. This, he reiterated, is to clarify that the failure to comply with that order gives the peace officer a basis within which to arrest someone for non-compliance, and if it is not an ex parte situation then more time is allowed to surrender the firearms. 8:35:13 PM REPRESENTATIVE KOPP referred to Amendment 2, page 1, lines 3-5, which read as follows: a peace officer may seize any firearms in the possession, custody, or control of the respondent when the peace officer delivers the ex parte protective order to the respondent. REPRESENTATIVE KOPP pointed out that "may seize" is in the permissive form rather than "shall seize," and the provision makes clear that there is legal authority, should the context of that service indicate that "seizure of firearms should occur" based upon the service of an ex parte protective order. 8:36:34 PM REPRESENTATIVE EASTMAN referred to [CSHB 75, Sec. 18.65.830(a), page 6,] line 24, and commented that the 48-hour language is moot because when a peace officer serves notice on a person, they have 48 hours "to do what they're going to do. But we're going to bring a search warrant and if they don't turn over their guns, we're going to arrest that person." CHAIR CLAMAN referred to Amendment 2, page 1, lines 10-12, and pointed out that the section applying to 48 hours is under AS 18.65.815 the contested protective orders, and under AS 18.65.825 are modification of the order. He explained that the section with the 48 hours does not apply to the ex parte orders, which as amended, would only apply to subsection (a). Subsection (a) of this section would relate to ex parte orders and subsection (b) would relate to the contested orders and the modification of the orders in the 48 hours, and what would become subsection (c) would only relate to the orders issued under the contested situation or modifications thereof. 8:38:07 PM REPRESENTATIVE KREISS-TOMKINS withdrew his objection to the motion to adopt Amendment 2. REPRESENTATIVE REINBOLD objected to the motion to adopt Amendment 2. 8:38:11 PM REPRESENTATIVE REINBOLD referred to Amendment 2, [page 1, lines 2-5], and she paraphrased as follows: When a court issues an ex parte, so that's without due process for the people listening, gun violence protective order under AS 18.65.820 if the respondent's firearms have not already been seized a peace officer may seize any firearm in the possession, custody, or control of the respondent when the peace officer delivers the ex parte protective order to the respondent. REPRESENTATIVE REINBOLD paraphrased the language "if it has not already" and asked when the opportunity to confiscate happened in the first place because it sounds as though there are two different opportunities to confiscate. CHAIR CLAMAN commented that he thought the committee was debating Amendment 2, and referred to [CSHB 75, Sec. 3] page 2, lines 17-21, which provides that when a peace officer faces a dangerous individual and believes there is an immediate danger that requires immediate action, they have authority both under this statute and under existing common law, to seize the weapons and prevent a dangerous situation from becoming a problem where someone is severely injured or killed. He explained that the bill provides that when an officer performs a warrantless seizure such as this, then the officer has a duty within 72 hours to actually file the paperwork to explain the reasons for the warrantless seizure, which is a way of providing more for an individual who has their firearms than they would have today under existing authority to seize weapons in a variety of circumstances. 8:40:11 PM REPRESENTATIVE REINBOLD argued that it read "seize any firearm in the possession, custody, or control" and asked whether it could mean a parent's house, at work, a cabin, a house in the Lower-48. She described the language as broad because if they are already seizing firearms without due process under an ex parte order, she paraphrased "now it says anything in their possession, custody, or control" whether it allows a peace officer to go anyplace this person owns. CHAIR CLAMAN reiterated to Vice Chair Kreiss-Tomkins that these questions are well beyond the scope of Amendment 2. (Indisc. - Representative Reinbold speaking over Chair Claman) referring to subsection (b) on page 5, [lines 18-23] regarding the search warrant the peace officer would offer for the search and seizure of any firearms in the possession of the respondent. He reiterated that it is well established under search and seizure law that the warrant would have to identify the places to be searched and the items to be seized, and it would not give any peace officer broad authority to wander the streets and look for anything anywhere because they would actually have a very specific place. A warrant that didn't provide that degree of specification would be subject to a significant court challenge and he could not imagine any judge in this state or any other state that would issue such a warrant. As to out-of-state properties, the jurisdiction of this state court does not extend to other states, he further explained. 8:41:49 PM REPRESENTATIVE LEDOUX surmised that if the peace officer recognizes that there is a dangerous individual, that peace officer can, without the judge giving the peace officer to do so, seize the firearm. CHAIR CLAMAN noted that Representative LeDoux was correct as it has previously been discussed, and that action can take place under a variety of circumstances. REPRESENTATIVE LEDOUX surmised that the peace officer goes to the court after seizing the firearm. CHAIR CLAMAN explained that the peace officer goes to the court afterwards, but in terms of Amendment 2, it is regarding the situation when the firearms have not already been seized. There is a gun violence protective order and this gives the peace officer the authority to seize the firearms if they had not already been seized. 8:43:04 PM REPRESENTATIVE LEDOUX asked how Amendment 2 changes the language that is "on page 6 already?" CHAIR CLAMAN explained that the difference between Amendment 2 and the language on page 6 is not changing the substance, it is clarifying the language. He reiterated that the Department of Public Safety (DPS) was concerned that the way it was drafted on page 6, and the placement of the second sentence of subsection (a) on page 6 in the same paragraph "as the portions in sub -- the first para -- sentence of subsection (a)." CHAIR CLAMAN referred Representative LeDoux to page 6 [lines 24- 27], and the second sentence, which read as follows: If the respondent's firearms have not already been seized, a peace officer may seize any firearms in the possession, custody, or control of the respondent when the peace officer delivers an ex parte protective order issued under AS 18.65.820 to the respondent. CHAIR CLAMAN explained that this is the ex parte provision, and when comparing that language to what will become subsection (a) on Amendment 2, that becomes subsection (a) and that relates to what happens when peace officers serve an ex parte order. The DPS indicated that by combining the first sentence of subsection (a) on page 6, which merged in together AS 18.65.815, 18.65.820, and 18.65.825 in one sentence, DPS believed that the combination was confusing and raised issues as to whether or not they could immediately seize the firearms. At the request of DPS, Amendment 2 is simply intended to clarify the language that is already in CSHB 75, page 6, so law enforcement is not confused, and the person reading the statute after it is amended will understand the sequence, he reiterated, and this is changing nothing of the substance of the bill. 8:44:49 PM REPRESENTATIVE LEDOUX suggested that law enforcement is not confused, but she is confused. 8:45:10 PM VICE CHAIR KREISS-TOMKINS summarized that for purposes of clarity, Amendment 2 takes the second sentence [CSHB 75, page 6, lines 24-27] of the current section AS 18.65.830(a) and breaks it off as its own subsection. CHAIR CLAMAN answered in the affirmative. 8:45:37 PM REPRESENTATIVE KOPP clarified that this is a complicated legal process for lay legislators who do not normally deal with domestic violence protective orders and how they are tiered, and questions should be expected. In response to Representative Reinbold's question about warrantless seizure of firearms, he offered a classic example as follows: You get a call 11:00, 12:00 at night, 1:00 in the morning from a concerned family member that says, 'My adult son is very depressed, hasn't come out of his room, he's talking about killing himself. Can you come help talk to him?' This happens regularly, situations like this. So, you show up at the house and you knock on the door and, you know, 'Police. I'm here cause your mom called or your dad called.' And, they may not answer the door so you're talking through a closed door hoping they are not armed, and hoping they are not mad that you're there. And, you get a dialogue going, 'Are you going to hurt yourself?' 'Well, I'm think about it.' 'Do you have a gun?' 'Yes.' And, after a dialogue, you -- the goal is to talk them not into hurting themselves or you, and that you talk him into turning over the gun that night until they feel better the next day. And, that would be a warrantless seizure. And, that's a classic example of how law enforcement goes home. Right now, there is no process for that person to get the gun back unless -- the officer is required to make a report of it right away because he is dealing with a mental health situation and that would have to be logged into evidence and all that. But, right now there is no process other than maybe the D.A. or the police chief saying the person is probably fine to get their gun back. 8:47:29 PM REPRESENTATIVE KOPP described that this bill actually reads that within 72 hours the peace officer must have prepared their affidavit to the court, and the court has to rule on whether the peace officer was correct to remove the firearm or to give it back. Currently, while it does happen that law enforcement will take guns for safekeeping, under those circumstances where people are at risk to harm themselves, there really is not a process in the law for helping the gun owner actually receive their firearm back again, and for judicial oversight in those situations. He explained that that is in response to the warrantless situation. As to the ex parte protective order, he offered a scenario of a peace officer receiving a call that a someone's son is going to "shoot up the neighbor's house" and they are concerned. For various reasons, the peace officer goes to the courthouse and advises the judge that they just received this call and they provide a statement from the mother, requests an ex parte protective order and a search warrant to try to prevent this person from shooting up the neighbor's house, the mother advised that her son owns a .22 long rifle, he has made these threats before, and she believes he is serious this time. The judge agrees and issues the ex parte order and search warrant, the peace officer serves the documents on the son and advises the son that in 10 days he would have a hearing on this issue, and the judge will determine whether the firearm would be returned. That standard is clear and convincing evidence as to whether it should be retained, if the judge decides at the hearing that the son is still a danger, the case will go to a six-month protective order or the court can terminate the order earlier if it so chooses on petition of the officer or the respondent and the request for hearing is filed, he explained. 8:50:22 PM VICE CHAIR KREISS-TOMKINS determined that because Amendment 2 is simply re-ordering sentences in the bill and its scope is fairly limited, he moved to committee discussion. 8:51:13 PM REPRESENTATIVE EASTMAN commented that the substance of Amendment 2 is on page 1, lines 11-12, "we're making a switch, which is page 6, line 20 of the bill, and we are pulling out the ex parte from that, and that is a substantive change. It not a re- ordering or rephrasing. We're making it clear for purposes of the bill that the ex parte protective order is not going to fall under this same provision here on line 20." 8:52:06 PM REPRESENTATIVE REINBOLD commented that before she makes her wrap up comments, she would talk about the Second Amendment, regarding the right of the people to keep and bear arms. VICE CHAIR KREISS-TOMKINS advised Representative Reinbold that he had not yet recognized her, and the committee members have a two-minute timeline for Amendment 2. 8:52:30 PM [VICE CHAIR KREISS-TOMKINS and Representative Reinbold discussed the scope of Amendment 2.] REPRESENTATIVE REINBOLD commented that "it read that the right of the people to keep and bear arms shall not be infringed, and legislators swore to uphold and defend the constitution, as you did." (Indisc.) so when reviewing the other amendments, "you're not allowed to do this." She remarked that the committee is rushing something that is in complete violation, "if you swore to uphold and defend the constitution." She said that she did not know what it says, it says to seize any (indisc.) know if that means "your office, I don't know if that means your mother's house, I don't know what it means when you can search and seize warrantlessly as long as it is in their possession, custody, or control." She described "this" as extremely broad and it is wrong to rush something that is critical to what holds this nation together. 8:54:19 PM REPRESENTATIVE KOPP noted that he agrees with Representative Reinbold's words of caution in protecting the Second Amendment, but this is not about warrantless searches. This discussion is about warrantless seizures and those can only take place when the nature of the circumstance demands an immediate response based on the danger the peace officer immediately observes, such as the circumstance of someone saying they are thinking of killing themselves and are holding a gun, and the peace officer is able to talk them out of killing themselves and allows the peace officer to seize the gun. He stressed that this is not about a warrantless search, a search always requires a warrant and if making a search without a warrant, the courts frown on that action. 8:56:08 PM REPRESENTATIVE LEDOUX related that she understands Representative Reinbold's point of view and concurs with her comments regarding the Second Amendment. Except, she expressed, even if the committee does not adopt Amendment 2, the bill in itself uses the phrase "possession, custody, or control" and she will probably vote in favor of the amendment, but she still has some concerns about the bill with or without Amendment 2. She offered understanding as to the concerns of the DPS officers. 8:57:19 PM REPRESENTATIVE REINBOLD maintained her objection. [VICE CHAIR KREISS-TOMKINS and Representative Eastman discussed the fact that he had previously offered his comments.] 8:57:45 PM REPRESENTATIVE REINBOLD declared a point of order. She said, there are two points of order, "it says, when you rush there is often unfairness, and two, you have to have equality for members and he's being denied. He had a point of clarity which is much different than discussion." VICE CHAIR KREISS-TOMKINS ruled that he opened the committee discussion by offering each member two minutes of comments and Representative Eastman was recognized first, before any other member. In the spirit of equality, he will offer Representative Claman two minutes to speak to any questions raised by other members. 8:58:18 PM REPRESENTATIVE EASTMAN declared a point of order. He said that his hand had been raised for quite some time and he was passed over several times before Vice Chair Kreiss-Tomkins determined that his next statement would be his two-minute wrap-up, and he thought that was inappropriate. VICE CHAIR KREISS-TOMKINS ruled, "Noted." 8:58:38 PM CHAIR CLAMAN, in response to Representative Eastman's comments and questions about clarity, advised that Representative Eastman was actually mistaken when reading the amendment and the bill. The bill does not remove the ex parte provisions, the amendment on lines 10-12 simply removes the second sentence of the bill in subsection (a) and makes it a separate subsection. Therefore, the ex parte provisions are retained and put in a separate subsection, and then subsection (b) addresses the non-ex parte situation. The whole purpose of Amendment 2 is not to debate the merits of ex parte orders, but rather to make the language of the bill clear and more easily understood so there is no confusion. He stressed that it does not change the substance of the language at all, and he commented that Representative LeDoux was "right on target," the question for this amendment is not whether a member supports the bill, the question one should ask is whether this amendment, by changing the language on page 6, beginning line 19, offers a clarity for peace officers and court officers. Chair Claman opined that it does. For those reasons, he urged the committee to vote in favor of Amendment 2. CHAIR CLAMAN, in response to Representative Reinbold, advised that he agrees with her comments about being very careful about protecting Second Amendment rights, but he never heard her ask a question. 9:00:09 PM REPRESENTATIVE REINBOLD declared a point of order. She referred to "Section 85 says that we have the fundamental right to know the intended and unintended consequences before we vote." She asked whether the intention is that peace officers do not search lodges, businesses, homes, and so forth, that it is only where that person resides at that time. VICE CHAIR KREISS-TOMKINS ruled that Chair Claman made clear what he sees as the intended consequences of Amendment 2, and the committee would proceed to a vote. 9:00:42 PM A roll call vote was taken. Representatives Kreiss-Tomkins, Kopp, Stutes, LeDoux, and Claman voted in favor of the adoption of Amendment 2. Representatives Reinbold and Eastman voted against it. Therefore, Amendment 2 was adopted by a vote of 5- 2. 9:01:17 PM VICE CHAIR KREISS-TOMKINS passed the gavel back to Chair Claman. [HB 75 was held over.]