Legislature(2009 - 2010)BUTROVICH 205

04/16/2010 09:15 AM Senate JUDICIARY

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09:38:35 AM Start
09:38:47 AM HB381
10:46:14 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Heard & Held
                      HB 381-SELF DEFENSE                                                                                   
9:38:47 AM                                                                                                                    
CHAIR  FRENCH  announced  the  consideration  of  HB  318.  [CSHB
381(JUD) was  before the committee.]  It was heard  previously at                                                               
which time testimony  was taken from the sponsor and  DOL and one                                                               
public member.                                                                                                                  
JOHN STRALEY,  representing himself, informed the  committee that                                                               
he has  been a criminal  defense investigator since 1984  and the                                                               
author of  several crime novels.  Based on that experience  he is                                                               
speaking  in opposition  to HB  381.  The current  law works  and                                                               
protects citizens. It asks that  people pause before using deadly                                                               
force   in  potentially   violent  confrontations,   whereas  the                                                               
proposed  change is  an invitation  to gun  fighting. He  related                                                               
that  he has  sat  with  dozens of  criminal  defendants after  a                                                               
homicide  and although  the circumstances  are  all different,  a                                                               
unifying theme is  that almost all felt justified  in the instant                                                               
that they took  a life. But later, and often  just seconds later,                                                               
these criminal defendants  saw that their judgment  was flawed or                                                               
clouded and  wrong. We  don't need to  send citizens  the message                                                               
that conflict should  be quickly resolved by  violence and that's                                                               
what HB 381 does, he said.                                                                                                      
9:43:27 AM                                                                                                                    
MR.  STRALEY  observed  that  the language  in  the  bill  sounds                                                               
reasonable  and like  it's just  a  small change,  but it's  like                                                               
changing a compass  course a few degrees. Over time  it will have                                                               
a wide  impact on  Alaskan life.  He related  that his  and other                                                               
crime  stories  are  about  citizens  bypassing  the  flawed  and                                                               
burdensome  justice  system  to  mete out  moral  vengeance.  His                                                               
stories clearly differentiate  between the good guys  and the bad                                                               
guys and the  good guys always win. But this  bill isn't crafting                                                               
a novel. Crafting legislation is  a slow and deliberative process                                                               
that considers the effects and consequences.                                                                                    
MR. STRALEY  expressed his strong  belief that this  small change                                                               
will increase gun  violence and ironically it will  offer the bad                                                               
guys one  less hurdle to jump  for killings that they  might want                                                               
to commit.  HB 381 doesn't  require somebody to retreat  or pause                                                               
to consider the consequences. He  suggested that if the committee                                                               
isn't inclined  to listen  to him  then it  should listen  to the                                                               
Department  of  Law,  and  people like  Rick  Svobodny  who  have                                                               
written to oppose  this bill. HB 381 is well  intentioned, but it                                                               
sends  the  wrong  message  and  the  results  will  have  deadly                                                               
consequences, he concluded.                                                                                                     
9:48:47 AM                                                                                                                    
BRIAN  JUDY, Alaska  Liaison, National  Rifle Association  (NRA),                                                               
described  HB   381  as   important  legislation   that  provides                                                               
protection and  assurance that a  person doesn't have  to retreat                                                               
when  he/she is  lawfully in  a  place and  feels threatened.  He                                                               
pointed out  that existing  Alaska law  already specifies  that a                                                               
person has  no duty to  retreat if  he/she is "on  premises which                                                               
the person  owns or  where the  person resides  or in  a building                                                               
where the person  works." The intent of HB 381  is to extend that                                                               
to any place where a person has a legal right to be.                                                                            
Under the  proposed language of HB  381, a person who  is dragged                                                               
into an alley by  a rapist or a person who is  dragged into a car                                                               
by a  kidnapper has no  duty to retreat  and they may  fight back                                                               
with force. The NRA views it as  common sense to be able to stand                                                               
one's ground and meet force with force, he said.                                                                                
MR.  JUDY reiterated  that  law-abiding  citizens shouldn't  fear                                                               
criminal  prosecution when  they  stand their  ground and  defend                                                               
themselves when  in a place that  they have a legal  right to be.                                                               
On behalf of the NRA he urged support for HB 381.                                                                               
9:55:27 AM                                                                                                                    
CHUCK KOPP, representing  himself, said he is  speaking in strong                                                               
support  of  the  intent  of  HB 381  to  help  protect  innocent                                                               
citizens,   but  he   has  reservations   about  the   unintended                                                               
consequences as currently written.                                                                                              
MR. KOPP  pointed out that existing  law appropriately identifies                                                               
in Title 11  that the use of deadly force  is justified when used                                                               
to  defend against  murder,  felony  assault, kidnapping,  sexual                                                               
assault, and  sexual abuse  of a minor  when perpetrated  in your                                                               
home,  place of  work and  anyplace you  are protecting  a family                                                               
member. However, the law also  recognizes that most uncomfortable                                                               
aggressive or violent  encounters don't rise to  this level. Most                                                               
occur in  public places and  there's a fundamental  assumption in                                                               
the law  that people show deference  and yield to one  another in                                                               
these shared access areas.                                                                                                      
MR. KOPP  said that  while the sponsor  statement says  that this                                                               
legislation makes  it clear  that it's the  criminals who  have a                                                               
duty to  retreat, the  reality is that  when violence  erupts the                                                               
ensuing   investigation  has   difficulty  determining   who  the                                                               
criminal is in the matter.                                                                                                      
MR. KOPP  offered his belief  that the current law  establishes a                                                               
correct balance between the right  to defend oneself and the duty                                                               
to  yield. He  cautioned  that  HB 381  may  have the  unintended                                                               
impact of  tipping the  balance to an  overzealous use  of deadly                                                               
force in self defense. He  highlighted that the Department of Law                                                               
drafted  an amendment  that addresses  his  concerns and  carries                                                               
forward the intent of the sponsor.                                                                                              
10:00:41 AM                                                                                                                   
SENATOR WIELECHOWSKI  asked if he  is expressing support  for the                                                               
proposed amendment that is on members' desks.                                                                                   
MR KOPP answered yes.                                                                                                           
SENATOR MCGUIRE asked to hear from the Department of Law.                                                                       
SUE  MCLEAN,  Director,  Criminal  Division,  Department  of  Law                                                               
(DOL),  stated  that  while  the  proposed  amendment  may  be  a                                                               
compromise, DOL  is still opposed  to HB 381. Mr.  Judy suggested                                                               
that the purpose of  this law is to relieve a  person of the fear                                                               
of  prosecution for  defending him  or herself,  but what  hasn't                                                               
been  said is  that there  is an  extraordinary and  unacceptable                                                               
problem  with   prosecuting  people  after  they   have  defended                                                               
themselves. When  a homicide or  use of deadly force  incident is                                                               
being investigated, the state is aware  that it has the burden to                                                               
prove that  a person  did not  act in  self defense  otherwise it                                                               
will face a  judgment of acquittal. This means that  a case isn't                                                               
filed when it appears that there's reasonable doubt.                                                                            
10:03:48 AM                                                                                                                   
MS.  MCLEAN  provided  the   following  illustrations  where  DOL                                                               
declined to prosecute because it saw self defense:                                                                              
   · Mr. A was in a public park and came on to a woman. She                                                                     
     called her boyfriend on her cell  phone to report that a man                                                               
     was  harassing her.  The boyfriend  possibly heard  that the                                                               
     man was threatening his girlfriend.  The boyfriend rushes to                                                               
     the park  and approaches Mr.  A with  a baseball bat  in his                                                               
     raised hand.  Mr. A has  a gun  in his waistband  and shoots                                                               
     the   boyfriend.   DOL   reviewed  the   circumstances   and                                                               
     determined it  couldn't prove  a) that Mr.  A had  started a                                                               
     violent incident  and therefore couldn't claim  self defense                                                               
     because it  wasn't clear that  he was in any  way physically                                                               
     threatening the girlfriend;  and b) that Mr. A  knew that he                                                               
     could retreat.  This was  a situation  that came  up quickly                                                               
     and a  bat absolutely is  a deadly weapon  so Mr. A  was not                                                               
     charged. HB 381 will exacerbate  this type of situation, she                                                               
   · Mr. A was found stabbed to death and in a ditch. There was                                                                 
     no  eyewitness  but the  police  learned  that he  was  seen                                                               
     arguing  with   Mr.  B  earlier   in  the  evening.   Mr.  B                                                               
     acknowledged that  they had been  arguing. Mr. B said  Mr. A                                                               
     threw a coat over my head  and I knew that he always carried                                                               
     a knife so I thought he was  trying to catch me off guard so                                                               
     he  could stab  me. I  ripped  the coat  off my  head and  I                                                               
     stabbed him. Because there were  no eyewitnesses DOL knew it                                                               
     couldn't prove that Mr. B's story wasn't true so he wasn't                                                                 
CHAIR FRENCH recessed  the meeting from 10:06 a.m.  to 10:25 a.m.                                                               
due to a fire alarm.                                                                                                            
10:25:26 AM                                                                                                                   
MS. MCLEAN provided a third example  where the state did not file                                                               
charges because  it could not prove  that the person did  not act                                                               
in self defense.                                                                                                                
    · The police were called because Mr. A was sitting on the                                                                   
      curb and  it appeared that his  throat had been cut.  Mr. A                                                               
      said he and  Mr. B were in the  adjacent apartment building                                                               
      and they were  fighting. Mr. A was intoxicated.  A woman in                                                               
      the apartment  said she  saw Mr.  B cutting  Mr. A  but she                                                               
      didn't know what happened before  that because she was in a                                                               
      different room, but  she could hear them  quarreling. Mr. B                                                               
      told the  police that he and  Mr. A were fighting.  He said                                                               
      Mr. A  tried to strangle  me and I felt  that I had  to use                                                               
      deadly force  to prevent my  being killed.  The intoxicated                                                               
      Mr. A said he didn't know  where his hands were when he was                                                               
      fighting Mr. B.  The state's perspective is  that it didn't                                                               
      see   a  duty   to  retreat   and  couldn't   disprove  the                                                               
      reasonableness of Mr. B's use of force.                                                                                   
MS.  MCLEAN noted  that  the  packets have  a  copy  of the  jury                                                               
instructions  and use  note  that are  typically  given in  cases                                                               
where deadly force  is used. It clearly states that  a person may                                                               
use  deadly force  unless  he/she knows  that  he/she can  safely                                                               
retreat.  The  retreat  duty  doesn't   apply  in  the  specified                                                               
circumstances like the  home. These cases that are  before a jury                                                               
have already  gone through a  screening process in which  DOL has                                                               
assessed them  and made  a decision that  there is  no reasonable                                                               
basis to  claim self defense in  the case and charged.  That's an                                                               
example  of why  it's troubling  to have  a bill  in which  it is                                                               
alleged that people need  protection from overzealous prosecutors                                                               
who are  prosecuting people who  have legitimately acted  in self                                                               
10:29:20 AM                                                                                                                   
MS.  MCLEAN  emphasized  that  DOL believes  that  if  this  bill                                                               
becomes  law  it  will  absolutely  increase  trials.  A  defense                                                               
attorney now might advise a  client to consider a resolution that                                                               
would  save some  jail  time,  but under  this  bill the  defense                                                               
attorney is  likely to  advise a  client to  go to  trial because                                                               
he/she didn't  have to retreat.  Furthermore, this change  in the                                                               
law would give unreasonable people  a license to act unreasonable                                                               
and not  retreat. The prosecution  won't be  able to say  that it                                                               
wasn't reasonable for a person not  to retreat when there's a law                                                               
that says they the person didn't need to retreat.                                                                               
10:33:45 AM                                                                                                                   
CHAIR  FRENCH  moved  conceptual  Amendment 1  and  objected  for                                                               
discussion purposes.                                                                                                            
                          AMENDMENT 1                                                                                       
     Add at the end of paragraph (5):                                                                                           
     Provided that such person may  use deadly force against                                                                    
     an intruder or  attacker in a place that is  not his or                                                                    
     her residence  without a  duty to  retreat only  if the                                                                    
     person reasonably  believes that  he or she  or another                                                                    
     is in imminent  danger of death or  serious bodily harm                                                                    
     from which  he or she or  another can only be  saved by                                                                    
     the  sue  of  deadly  force  against  the  intruder  or                                                                    
CHAIR FRENCH, noting that the  amendment came from the Department                                                               
of Law, asked DOL for an explanation.                                                                                           
MS.  MCLEAN reiterated  that DOL  is  opposed to  this bill.  The                                                               
amendment attempts to  say that a person that is  in a place they                                                               
have a  right to be  can use deadly  force if the  evidence shows                                                               
that it  was the  only way  that the  person could  have defended                                                               
him/herself against death or serious physical injury.                                                                           
10:36:09 AM                                                                                                                   
CHAIR FRENCH removed his objection to Amendment 1                                                                               
SENATOR COGHILL  asked for help  understanding the  nexus between                                                               
"reasonably believes" [on  line 3] and "only" [be  saved] on line                                                               
SENATOR  WIELECHOWSKI  interpreted  it  to  mean  that  a  person                                                               
reasonably believes  that they can  only be  saved by the  use of                                                               
deadly force.                                                                                                                   
CHAIR FRENCH agreed.                                                                                                            
SENATOR  COGHILL   said  that's  the  clarification   he  wanted;                                                               
otherwise there could be two standards.                                                                                         
10:37:55 AM                                                                                                                   
CHAIR  FRENCH  observed  that  the  instructions  that  the  jury                                                               
receives is helpful. He read  the following reasonableness clause                                                               
from  the  pattern  jury  instruction  that  is  given  in  cases                                                               
involving use of deadly force in defense of self or others:                                                                     
     The  reasonableness of  a defendant's  beliefs must  be                                                                    
     evaluated  by the  jury based  on the  circumstances of                                                                    
     the  situation  facing  the  defendant,  including  any                                                                    
     relevant knowledge  the defendant  had about  the other                                                                    
     person;  physical attributes  of  all persons  involved                                                                    
     (including  the defendant);  and any  prior experiences                                                                    
     that  could   provide  a   reasonable  basis   for  the                                                                    
     defendant's beliefs.                                                                                                       
SENATOR  COGHILL  observed  that "reasonably"  gives  the  mental                                                               
state  while  "only" says  that  it's  without regard  to  mental                                                               
SENATOR  WIELECHOWSKI  asked  if   "reasonably  believes"  is  an                                                               
objective standard or a subjective standard.                                                                                    
MS. MCLEAN explained that there  are always two standards in self                                                               
defense. First,  there has  to be proof  of an  actual subjective                                                               
belief - the defendant has  to actually believe it. Second, there                                                               
has to be a subjective belief  that the jury is willing to regard                                                               
as reasonable.                                                                                                                  
10:39:30 AM                                                                                                                   
CHAIR  FRENCH added  that the  reasonableness clause  is somewhat                                                               
subjective, but reasonable belief  means that a reasonable person                                                               
would have held such a belief under the same circumstance.                                                                      
SENATOR COGHILL observed  that the part people will  have to look                                                               
at is whether or  not [the use of deadly force]  was the only way                                                               
CHAIR  FRENCH reminded  the committee  that it's  the prosecution                                                               
that  will  have to  disprove  the  defense beyond  a  reasonable                                                               
doubt. The defendant doesn't have  to prove that their action was                                                               
10:41:00 AM                                                                                                                   
SENATOR MCGUIRE asked how intoxication is treated.                                                                              
MS.  MCLEAN advised  that  intoxication  is not  a  defense to  a                                                               
criminal act  unless the charge  is an intentional  criminal act.                                                               
In  the case  of  homicide it  is first  degree  murder with  the                                                               
specific intent to kill and then  the jury can consider it as how                                                               
it impacted the defendant's ability to form an intent.                                                                          
CHAIR FRENCH asked how it plays out in a self defense claim.                                                                    
MS. MCLEAN  replied you're talking about  diminished capacity and                                                               
the status  of that defense  is always up  in the air  in Alaska.                                                               
Basically,  if  self  defense  is   raised  the  jury  will  hear                                                               
SENATOR MCGUIRE  said she appreciates  the sentiment of  the bill                                                               
and she intends to support it,  but she's concerned about the use                                                               
of alcohol  and how this may  be interpreted by young  people who                                                               
are  already inclined  to pull  out a  knife or  gun to  settle a                                                               
10:46:14 AM                                                                                                                   
CHAIR   FRENCH   announced   that  without   further   objection,                                                               
conceptual Amendment 1 is adopted. He held HB 381 in committee.                                                                 
CHAIR  FRENCH recessed  the meeting  to a  call of  the chair  at                                                               
10:46 a.m.                                                                                                                      

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