Legislature(2009 - 2010)BUTROVICH 205
04/15/2010 08:30 AM Senate JUDICIARY
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* first hearing in first committee of referral
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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 displaced. 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 happen. 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 example. 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.