Legislature(2009 - 2010)BUTROVICH 205

04/15/2010 08:30 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Scheduled But Not Heard
Moved SCS CSHB 324(JUD) Out of Committee
Moved CSHB 348(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                      HB 381-SELF DEFENSE                                                                                   
9:31:52 AM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 381.                                                                             
REPRESENTATIVE MARK NEUMAN, sponsor of  HB 381, said the bill has                                                               
undergone changes since it was  introduced. Ms. Carpeneti, who is                                                               
with  the Department  of  Law, brought  several  concerns to  his                                                               
attention and  the proposed committee  substitute was  drafted to                                                               
address those concerns.                                                                                                         
The current statute says there is  no duty to retreat on premises                                                               
that  you own  or  lease, where  you reside,  or  where you're  a                                                               
guest.  The bill  expands that  to  include anyplace  you have  a                                                               
legal  right  to  be.  While   the  bill  proposes  to  amend  AS                                                               
11.81.335(b), subsection (a) provides the justifications.                                                                       
9:34:10 AM                                                                                                                    
REPRESENTATIVE NEUMAN said 16 states  have tried to clarify where                                                               
a person can  be and legally defend him or  herself because there                                                               
has  been confusion  about that.  The current  law says  that you                                                               
must retreat  if you're able to  do so safely, but  that's asking                                                               
for a  snap decision in a  panic-filled moment. You have  a right                                                               
to defend yourself  in your home and the bill  proposes to extend                                                               
that right  to a street  or a park or  anywhere you have  a legal                                                               
right to be. "Did you use  deadly force? It better be justified,"                                                               
he said.                                                                                                                        
REPRESENTATIVE NEUMAN  reported that  current Alaska  law permits                                                               
the use  of deadly force in  self defense and a  few instances of                                                               
murder,  rape, kidnapping,  physical injury,  or robbery.  HB 381                                                               
tries to  allow you to  defend yourself before that  happens. "If                                                               
you're  involved  in one  of  those  situations, you  can  defend                                                               
yourself  right now,  but it's  before that  happens. That's  the                                                               
critical part," he said.                                                                                                        
The  title is  very clean  and clear:  "An Act  relating to  self                                                               
defense in any place where a person has a right to be."                                                                         
9:37:21 AM                                                                                                                    
CHAIR FRENCH asked if he believes  that anyone ever has a duty to                                                               
retreat and  how he views  that as  comporting with the  right to                                                               
use deadly force.                                                                                                               
REPRESENTATIVE NEUMAN  replied a duty  to retreat means  that you                                                               
should try  to escape a situation  if you're able to  do so. Most                                                               
reasonable people  would do that.  If you  find that you  have to                                                               
defend yourself with deadly force,  Alaska law says you have that                                                               
right but only  if you're in your  home or place of  work. HB 381                                                               
proposes to extend  that right to other locations  where you have                                                               
a legal right to be.                                                                                                            
9:39:58 AM                                                                                                                    
SENATOR COGHILL  said he  agrees that  the duty  to retreat  is a                                                               
serious duty but he wonders  about the legal protections a person                                                               
might have when  they're faced with very  aggressive behavior and                                                               
they have to make a split-second  decision. He asked if there's a                                                               
problem now where  the burden to retreat is on  the victim rather                                                               
than on the perpetrator.                                                                                                        
REPRESENTATIVE NEUMAN  said it  is a  problem because  Alaska law                                                               
says you  must retreat if  you know you  can do so  with complete                                                               
safety. He  said his measure is  to ask if you  were justified in                                                               
using deadly force.                                                                                                             
SENATOR  COGHILL said  part  of the  concern  is with  aggressive                                                               
behavior and  the other part is  that a split second  decision is                                                               
easily  deliberated  in court,  but  it  wasn't made  under  that                                                               
circumstance. He asked if the duty  to retreat had been tested in                                                               
court enough to understand how it falls out.                                                                                    
REPRESENTATIVE  NEUMAN  reiterated  that 16  states  have  passed                                                               
similar legislation. He relayed that  his staff informed him that                                                               
the duty to retreat is only  a legal issue after it's established                                                               
that deadly force was justified.                                                                                                
SENATOR COGHILL reiterated  that it would be  interesting to know                                                               
how the court has interpreted the law.                                                                                          
9:45:27 AM                                                                                                                    
SUSAN  MCLEAN, Director,  Criminal  Division,  Department of  Law                                                               
(DOL), confirmed that in the  state of Alaska you absolutely have                                                               
the right to  self defense. It is not an  affirmative defense. It                                                               
is part of  the state's case to prove that  the defendant did not                                                               
act  in self  defense. If  the state  fails to  prove that  using                                                               
force was not in self defense,  the state never gets to a defense                                                               
case because  a judgment of  acquittal could be  entered. Because                                                               
of that, you never see cases  where self defense was obvious; the                                                               
person isn't charged.                                                                                                           
HB 381  and similar laws  have been characterized  as stand-your-                                                               
ground laws - and  this is a trend - but  it's not about standing                                                               
your ground.  It's about  shooting first.  Prosecutors nationwide                                                               
are opposed to this type of  law and the Alaska Department of Law                                                               
is  similarly  opposed.  It  promotes and  condones  a  level  of                                                               
violence  that  may not  have  been  necessary. Self  defense  is                                                               
complicated law; in  a trial if there is  any evidence whatsoever                                                               
that there  may have been  self defense,  the jury must  be given                                                               
instructions  about  self defense  and  can  consider that.  This                                                               
proposal pertains  just to  the use  of deadly  force. This  is a                                                               
situation where a human life was taken.                                                                                         
9:48:21 AM                                                                                                                    
MS.  MCLEAN explained  that in  common law  there was  a duty  to                                                               
retreat.  In Medieval  times  that  meant that  a  person had  to                                                               
retreat to  the wall before using  deadly force. This law  is old                                                               
and long-standing because human life  is sacred. A life shouldn't                                                               
be  taken  lightly  and  it  shouldn't be  taken  when  it's  not                                                               
necessary.  As the  sponsor said,  most  reasonable people  would                                                               
retreat, but  HB 381 says they  don't have to act  reasonably and                                                               
retreat. "That's why we're so greatly opposed to it," she said.                                                                 
Current  law says  there is  no duty  to retreat  in the  home or                                                               
other enumerated places. But the premise  is that if you know can                                                               
retreat with complete safety, then  you may not use deadly force.                                                               
That  rule applies  in every  location  but a  person's castle  -                                                               
their home.                                                                                                                     
MS. MCLEAN  clarified that DOL's view  of "knowing" is that  if a                                                               
person says that in the heat  of the moment they didn't know they                                                               
could  retreat  with  complete  safety, then  the  person  has  a                                                               
defense. The  jury may agree that  the person didn't see  that he                                                               
could retreat  with safety; therefore his  belief was reasonable;                                                               
therefore  his  use of  deadly  force  was  justified -  even  if                                                               
The  sponsor and  others have  said that  this legislation  would                                                               
spare people  the burden of coming  to court if the  situation is                                                               
close. "I  would submit to  you that's  a bad reason,"  she said.                                                               
This is about taking a human  live balanced against why it had to                                                               
9:51:37 AM                                                                                                                    
MS. MCLEAN said  it's easy to think about this  in personal terms                                                               
and that  as a law abiding  citizen you should be  able to defend                                                               
yourself if someone  is aggressive and you're afraid.  The law is                                                               
on your  side in that  instance and  DOL supports that.  But this                                                               
legislation  will apply  to people  who are  not law  abiding. It                                                               
will apply to gang members who  would have a defense for shooting                                                               
on sight were this legislation  to pass. She cited a hypothetical                                                               
CHAIR FRENCH  asked what happens  when a bullet that's  aimed and                                                               
fired  in self  defense doesn't  hit the  intended target  but an                                                               
innocent bystander.                                                                                                             
MS.  MCLEAN said  if self  defense was  justified, then  the fact                                                               
that  an  innocent bystander  was  killed  is justified.  It's  a                                                               
complete defense; you're not guilty.                                                                                            
Florida was the first  state to pass a similar law  in 2005 and a                                                               
recent  University of  Miami law  review  article concluded  that                                                               
it's difficult to measure what  isn't getting charged. The author                                                               
talked about  the scenario  of two gang  members and  an innocent                                                               
nine-year-old  child  who  was shot  and  killed.  Both  shooters                                                               
raised self defense and both were acquitted.                                                                                    
GRIS  SMITH,  President,  Alaska   Pyrotechnic  Guild,  said  the                                                               
organization is 100 percent in support  of HB 381. Today it seems                                                               
that crooks have all the  legal rights while victims have minimal                                                               
rights. This bill evens the score, he said.                                                                                     

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