Legislature(2009 - 2010)BUTROVICH 205

04/12/2010 08:30 AM Senate JUDICIARY

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08:30:18 AM Start
08:30:29 AM HB408
09:21:16 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
              HB 408-MISCONDUCT INVOLVING WEAPONS                                                                           
8:30:29 AM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 408. [CSHB
408(JUD) was before the committee.]                                                                                             
REPRESENTATIVE JAY  RAMRAS, sponsor  of HB  408, related  that in                                                               
committee  and on  the House  floor  HB 408  has been  informally                                                               
retitled "a restoration  of rights bill." He  introduced the bill                                                               
speaking to the following sponsor statement.                                                                                    
     Under Alaska law, an individual  who has been convicted                                                                    
     of a felony can carry  handguns and have their right to                                                                    
     bear arms  restored by any  of three occurrences:  1) a                                                                    
     pardon, 2)  the underlying  conviction having  been set                                                                    
     aside under AS  12.55.085, or 3) by the  passage of ten                                                                    
     years time from an unconditional discharge.                                                                                
     However, the  U.S. Supreme Court  in the case  of Caron                                                                    
     v. U.S.,  524 U.S. 308  (1998), ruled that if  a person                                                                    
     who  has  been  previously  convicted of  a  felony  is                                                                    
     prohibited from possessing firearms,  in any way, under                                                                    
     state  law, then  they are  prohibited from  possessing                                                                    
     firearms under federal law.                                                                                                
     While  under  state  law  a  previously  convicted  ex-                                                                    
     felon's  right  to  possession  of  firearms  is  fully                                                                    
     restored,  there  are  still  limitations  on  carrying                                                                    
     concealed  weapons. Ex-felons  can  carry concealed  on                                                                    
     their own  property, while  engaged in  lawful hunting,                                                                    
     fishing, or trapping, or while  engaged in other lawful                                                                    
     activities that necessarily involves  the carrying of a                                                                    
     weapon for personal protection.                                                                                            
     However, the ATF and the  FBI are interpreting Alaska's                                                                    
     statute  to be  a restriction  upon possession.  Due to                                                                    
     this interpretation,  Alaskans who under state  law are                                                                    
     allowed to  possess firearms are being  threatened with                                                                    
     prosecution for serious federal offenses.                                                                                  
     This  bill  addresses  the language  in  AS  11.61.200,                                                                    
     Misconduct Involving  Weapons in  the Third  Degree. AS                                                                    
     11.61.200(a)(12) bars all  people convicted of felonies                                                                    
     from carrying concealed  weapons, while AS 11.61.200(g)                                                                    
     sets out exemptions to (a)(12)'s blanket ban.                                                                              
     The Alaska  State Legislature has  made its  own policy                                                                    
     decision  about how  to handle  the gun  rights of  ex-                                                                    
     felons. HB 408 is one of  the many bills that have been                                                                    
     drafted  in  this  legislation session  to  bring  this                                                                    
     issue  back before  the  Alaska  State Legislature  for                                                                    
CHAIR FRENCH opened public testimony.                                                                                           
8:38:26 AM                                                                                                                    
DONALD  M.  CLARK, representing  himself,  said  he never  had  a                                                               
blemish on  his record until about  ten years ago when  he made a                                                               
poor  decision and  agreed  to grow  a few  plants  for his  lady                                                               
friend to  support her habit.  His attorney explained that  if he                                                               
pled guilty  he would  receive a fine,  get two  years probation,                                                               
and  a suspended  imposition of  sentence.  After completing  the                                                               
conditions set  out by the  court he  expected to get  his rights                                                               
back, but  that didn't happen. A  year or so later  when he tried                                                               
to purchase  a shotgun  the federal  government turned  him down.                                                               
This was  in spite  of the  fact that  the judge  and prosecuting                                                               
attorney assured  him that  his rights  had been  restored. After                                                               
exhausting his  options he retained  an attorney to try  to right                                                               
the system for himself and others  caught in the same dilemma. HB
408 would correct the problem.                                                                                                  
8:40:28 AM                                                                                                                    
BRIAN  JUDY, Alaska  state  liaison,  National Rifle  Association                                                               
(NRA),  said  HB 408  is  not  about  giving firearms  to  felons                                                               
because the state's  policy already is to  restore firearm rights                                                               
to former  offenders upon release  from incarceration.  The right                                                               
to possess handguns  is restored if the person  receives a pardon                                                               
or a "set  aside" or 10 years after  unconditional discharge. The                                                               
individual can  now openly carry  handguns anywhere in  the state                                                               
and they  can carry concealed at  home, on their property,  or if                                                               
they  are engaged  in a  lawful outdoor  activity. This  restores                                                               
essentially 95  percent of  their rights.  But because  the state                                                               
doesn't go the extra step and  restore 100 percent of the rights,                                                               
these  individuals  have  zero  rights for  the  purpose  of  the                                                               
federal  law and  they  can  be prosecuted  for  possession of  a                                                               
firearm.  HB  408  takes  that extra  step  and  facilitates  the                                                               
implementation of the existing state policy.                                                                                    
HB 408 removes  the slight restriction on concealed  carry and it                                                               
changes the affirmative defense in  AS 11.61.200 to an exception.                                                               
Without  these small  technical changes,  the federal  government                                                               
extinguishes  all  the  rights  of  these  individuals  who  have                                                               
already paid their debt to society.                                                                                             
8:43:44 AM                                                                                                                    
C.E.  TANNER,  representing  self,  said that  30  years  ago  he                                                               
committed   a  felony   and  spent   some   time  under   federal                                                               
supervision, but  for the past  25 years he's lived  an exemplary                                                               
life. Before  he retired three  years ago,  he was a  real estate                                                               
broker  and general  contractor.  Shortly after  he was  released                                                               
from federal supervision,  he applied for and  received a federal                                                               
relief of  disability for firearms. After  the Legislature passed                                                               
the  concealed  carry  permit legislation,  he  applied  for  and                                                               
received a concealed carry permit.  He renewed the permit several                                                               
times and then  last year the Alaska Department  of Public Safety                                                               
(DPS) interpreted  the statute differently  and refused  to renew                                                               
his  permit. This  is discriminatory  and  he therefore  supports                                                               
passage of HB 408.                                                                                                              
8:46:59 AM                                                                                                                    
RON  STERLING, representing  himself,  said he  committed a  drug                                                               
offense  at  age 18  and  was  sentenced  to probation  and  four                                                               
weekends in jail.  Although he paid his debt, he  is still paying                                                               
40 years later  because of the different  standards between state                                                               
and federal law.  The offense was expunged from his  record and a                                                               
background check by  the Alaska State Troopers  indicated that he                                                               
had no criminal record with the  state. Even so, when he tried to                                                               
buy firearms  for target shooting  he was denied. He  thanked the                                                               
committee for hopefully correcting this wrong.                                                                                  
8:49:33 AM                                                                                                                    
ERIC STANLEY, representing himself, said  that over ten years ago                                                               
when he  was in his late  teens and living on  the Aleutian Chain                                                               
he made  a poor decision  to receive stolen property.  The result                                                               
is that  he went to  jail directly  after he graduated  from high                                                               
school. It was  a life-changing experience. He  served 30-45 days                                                               
after which  he completed  three years  probation and  received a                                                               
suspended imposition of  sentence. He now has  a teenage daughter                                                               
and  would like  to take  her hunting  and target  shooting. He'd                                                               
also like to carry a firearm  for protection from bears when he's                                                               
8:55:47 AM                                                                                                                    
SENATOR WIELECHOWSKI  asked if  a convicted  felon could  carry a                                                               
rifle or shotgun.                                                                                                               
JANE  PIERSON,  Staff  to  Representative  Jay  Ramras,  said  no                                                               
because of the all-or-nothing provision in federal law.                                                                         
Senator McGuire joined the committee.                                                                                           
WILLIAM R. SATTERBERG, representing  himself, said he is strongly                                                               
in favor of HB  408. He has practiced law for  about 34 years and                                                               
a  major portion  of the  work he  does in  the area  of criminal                                                               
defense, both federal and state.  He explained that for years the                                                               
state  has  had suspended  imposition  of  sentence (SIS),  which                                                               
means that  an offender who  complies with the  requirements that                                                               
the court  has imposed can  have their civil rights  restored. Up                                                               
until last April  these individuals were told  that this included                                                               
getting  their gun  rights restored.  At that  time the  Attorney                                                               
General's Office changed  position and said that in  light of the                                                               
Caron decision  and the disjoint  between state and  federal law,                                                               
the state  cannot restore weapon  rights. Doing so would  allow a                                                               
person to violate federal law. He provided an example.                                                                          
8:58:42 AM                                                                                                                    
MR. SATTERBERG  opined that this  is a situation where  the state                                                               
must come  into conformity with  federal law because  the federal                                                               
government is  not going to make  an exception for Alaska.  If HB
408 were  to pass, the state  would be in complete  parallel with                                                               
the federal  government and  these individuals  would be  able to                                                               
have weapon rights. The fact  that there's an affirmative defense                                                               
effectively  denies  thousands  of  Alaskans  the  right  to  own                                                               
weapons  after they  have  fulfilled their  debt  to society.  He                                                               
urged the committee to pass HB 408.                                                                                             
9:01:14 AM                                                                                                                    
RICHARD PATTERSON,  representing himself, spoke in  support of HB
408. He  said he  is a  rescue pilot who  has saved  thousands of                                                               
lives in his  long career. He related that about  20 years ago he                                                               
made  an  error,  pled  no  contest,  and  completed  four  years                                                               
probation.  At  the  time  he  discussed  with  counsel  the  job                                                               
ramifications  of losing  his firearm  rights  and he  researched                                                               
state  documents.  At that  time  the  clemency handbook  clearly                                                               
stated that he  did not need a pardon and  the state would gladly                                                               
restore  his rights  to  carry  long guns.  As  time  went on  he                                                               
learned that  things weren't as  they originally seemed.  In 2006                                                               
he applied for and received  a full and unconditional pardon from                                                               
the  governor. It  specifically  states that  its  purpose is  to                                                               
restore his rights  to possess and use handguns,  but that hasn't                                                               
been the case. He urged the committee  to pass HB 408 and make AS                                                               
11.61.200 function as intended.                                                                                                 
9:07:55 AM                                                                                                                    
JAMES  ADAMS,  representing  himself,  related that  in  1985  he                                                               
entered a  no contest  plea on  a felony  offense and  received 5                                                               
years probation. The  judge waived the condition of  not having a                                                               
concealable  weapon and  as  a special  condition  said that  the                                                               
firearms  provision would  be  excluded  provided permission  was                                                               
granted  from the  federal government.  In 1986  when he  started                                                               
probation  he  applied  for  and   received  a  federal  firearms                                                               
license. He held that license for  about 15 years but in the late                                                               
'90s he had to give it up.                                                                                                      
MR.  ADAMS said  he's 64  years  old and  would like  to use  his                                                               
training and be  a gunsmith when he retires but  at this point he                                                               
isn't allowed to own a gun  or go shooting for enjoyment. He said                                                               
he fulfilled  the commitment  he made in  his plea  agreement and                                                               
would  like the  state  to  fulfill its  agreement  with him  and                                                               
restore his firearms rights.                                                                                                    
9:12:46 AM                                                                                                                    
SUE  MCLEAN,  Director,  Criminal  Division,  Department  of  Law                                                               
(DOL), said she  would affirm that the foregoing  testimony is an                                                               
accurate depiction of the conflict  between the federal and state                                                               
possession of firearms laws. Because  people who have a suspended                                                               
imposition  of sentence  can't carry  concealed  except in  their                                                               
home or on  their property or hunting and fishing,  the FBI reads                                                               
that  as  a  complete  prohibition   against  the  possession  or                                                               
purchase of firearms.                                                                                                           
CHAIR  FRENCH opined  that  it's  hard to  get  that result  from                                                               
reading Caron v. U.S.                                                                                                           
MS.  MCLEAN said  that people  who  have had  trouble with  their                                                               
federal gun rights are often referred  to her even though she can                                                               
do  nothing to  help because  their problem  is with  the federal                                                               
government.  Nonetheless, she  speaks to  the FBI  representative                                                               
about this frequently and is always  told to tell people that the                                                               
fact that  they have rights  under the state to  possess firearms                                                               
doesn't mean that they have federal rights to possess firearms.                                                                 
9:15:22 AM                                                                                                                    
CHAIR  FRENCH  summarized  that the  people  who  testified  this                                                               
morning don't have  a problem with state government;  they have a                                                               
problem with  the federal government  although it  circles around                                                               
to the fact that the federal government blames the state's laws.                                                                
MS.    MCLEAN   clarified    that   the    federal   government's                                                               
interpretation is that AS 11.61.200(g)  allows a person who has a                                                               
set aside to  carry a concealed weapon with  exceptions. They may                                                               
carry a concealed  weapon only in their home,  on their property,                                                               
or  when  engaged in  hunting  and  fishing activities  and  it's                                                               
needed  for self  protection. The  federal government  reads that                                                               
exception  to  the permission  to  carry  concealed as  being  "a                                                               
restriction  on  the restoration  of  your  firearms rights."  If                                                               
there's  any restriction  in  statutory law,  it  applies to  all                                                               
CHAIR  FRENCH  asked  if  there'd  been a  change  in  policy  or                                                               
interpretation  since the  administration  changed in  Washington                                                               
MS. MCLEAN answered no. She  said she understands why the sponsor                                                               
is seeking  the change in state  law, but DOL has  concerns about                                                               
repealing  the affirmative  defense for  concealed weapons.  This                                                               
switches the burden to the state  to prove that a person does not                                                               
have  a right  to possess  a firearm.  That will  be a  difficult                                                               
burden  because  of  the  difficulty   in  calculating  when  the                                                               
unconditional discharge occurs.                                                                                                 
9:19:00 AM                                                                                                                    
CHAIR FRENCH questioned why it's difficult to pinpoint.                                                                         
MS. MCLEAN said  it's always a problem with people  who come from                                                               
other  states   because  time   served  is   measure  differently                                                               
depending  on the  state. For  example, one  state measures  time                                                               
served as the time a person is on probation.                                                                                    
CHAIR FRENCH observed that if  the requirement is ten years after                                                               
unconditional release,  the person  will have lived  a blame-free                                                               
life for  a significant  number of  years before  their firearm's                                                               
rights are restored.                                                                                                            
MS. MCLEAN said  yes; the difficulty will be  in calculating that                                                               
date  or  knowing  if  they  have  a  pardon.  She  reminded  the                                                               
committee that the state's position is  to know that it can prove                                                               
every  element  beyond a  reasonable  doubt  before bringing  the                                                               
charge. It would  be difficult to look at a  record and know that                                                               
a person didn't have a pardon.                                                                                                  
CHAIR FRENCH agreed it's hard to prove a negative.                                                                              
MS. MCLEAN said it would be  easier if this law provided the same                                                               
requirement  as the  state's sex  offender  registration law.  It                                                               
requires the sex  offender to come forward and show  that they no                                                               
longer have to register.                                                                                                        
CHAIR FRENCH  asked if she  knows how many  unconditional pardons                                                               
have been granted  to felons in Alaska  because his understanding                                                               
is that they are extremely rare in this state.                                                                                  
9:21:16 AM                                                                                                                    
MS. MCLEAN said  the Governor's Office probably has  a record but                                                               
she believes  that it's  more than two.  The problem  is tracking                                                               
the information from other states.                                                                                              
REPRESENTATIVE  RAMRAS said  he  doesn't disagree  with DOL  that                                                               
there's a  policy call embedded in  the bill, but he  deferred to                                                               
the many  Alaskans that have  testified rather than  those people                                                               
who might move  to this state and provide  an affirmative defense                                                               
and  assert  one  of  the  three claims:  1)  a  pardon,  2)  the                                                               
conviction having  been set aside,  or 3)  by the passage  of ten                                                               
years after an unconditional release.                                                                                           
MS. PIERSON added  that the policy call they decided  on was that                                                               
it should be the state's burden of proof in a criminal case.                                                                    
CHAIR FRENCH announced that he would hold HB 408 in committee.                                                                  

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