As the special session in Juneau narrows its focus to the Governor’s agenda, many editorial pages have begun peddling what they perceive to be the successes and failures of the 27th Legislature. Actual policy that was enacted plays the proverbial second fiddle to how said policy is framed by strategists gearing up for an unprecedented election season. The question turns from “what laws should pass?” to “what went on in Juneau that I can use against my political opponent?”
As halfhearted eulogies for “policy that could have been” occupy our morning reads, it is important to take a second look at one proposal that did not pass, but will continue to be misused, mischaracterized, and intentionally misunderstood in political sport.
House Bill 80.
House Bill 80 was introduced in January of 2011; sponsored by Rep. Mark Neuman (R-Mat-Su). The bill garnered the co-sponsoring signatures of 16 of the House’s 40 members and 13 of the Senate’s 20. Additionally, the legislation gained the “bi-partisan” moniker by way of three Democrats’ support (Senators Bill Wielechowski’s of Anchorage, Donny Olson of Nome, Joe Thomas of Fairbanks). It passed the House by the wide margin of 33-6, passed out of the Senate Judiciary Committee, and was retired, as the session came to a close, in the Senate Finance Committee.
The proposal sought to broaden the state’s self defense laws, adding the provision that citizens have a right to defend themselves “in any place they have a right to be.” According to the bill’s sponsor statement: “HB 80… just extends the rights that you have while you’re in your home, or place of business, to stay with you when you have a legal right to be in Alaska – out enjoying Alaska – the right to defend yourself to protect you and your family.”
Looking at the plain text of the bill, the language seems consistent with its sponsor’s description. But it’s not. Existing “self defense” law is covered in Title 11 of Alaska Statutes. For those diligent policy wonks who viewed the stand-alone bill, you’ll notice that the proposed legislation only presents the relevant statute’s “B” section. “B”, however, almost always follows “A.” That is certainly the case here.
Rep. Neuman’s legislation greets readers with the section providing that a person can not use deadly force unless it is within the “Castle Doctrine” framework; being in your house, or a friend’s house, or place of employment, etc.. More importantly, this section lays out the detail that, when not on private property and confronted with a threat, if there is a way to extricate yourself from the situation safely, you should do so in lieu of opening fire.
What the language neglects to mention is that the section before the one HB80 highlights – Section 11.81.335(A) – states:
“A person who is justified in using nondeadly[sic] force in self-defense under AS.11.81.330 may use deadly force in self-defense upon another person when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against death; serious physical injury; kidnapping…; sexual assault in the first … [or] second degree; sexual abuse of a minor in the first degree; or robbery in any degree.”
In other words, there is an existing legal framework that establishes one’s right to self defense when the motive behind the deadly force is self preservation.
If HB 80 granted Alaskans a right to defend themselves – it would be a no-brainer. If current law had no statute that expressly afforded the right to self defense, that would represent major gaps in existing law that needed filling. Those gaps are not there.
This is not, as Representative Neuman hailed it, an extension of rights, but a radical change in how the law surrounding self defense works. This bill, whether he understands it or not, changes the concept of self defense to a legally defensible right to self offense. And if he doesn’t understand his own bill, he’s not alone.
Violent Crime in Alaska. (some context)
Alaska ranks 6th among all 50 states for violent crimes per capita; 688 instances of murder, forcible rape, and aggravated assault for every 100,000 people. The more densely populated city centers display crime statistics disproportionate to the rest of the country. Fairbanks, in 2009, boasted a violent crime rate 76.64% above the national average, not to be outdone by Anchorage, which towered a full 104.51% above the same average.
Although the population is disproportionately housed within these small corridors of our expansive state, the violent crimes are perhaps at their most frightening form in rural Alaska, where there is less than adequate (if at all) infrastructure to deal with crimes as they happen. In 2011 State Troopers reported 300 domestic violence offenses, 573 assault cases (86 of which were felony assault offenses), and 646 cases referred to the Department of Law for screening and prosecution.
The task of crafting laws to deal with violent crime is vested by the Alaska state constitution in her state legislature. The 27th legislature housed eighty-five bills designed for the purposes of dealing with crime; ranging from illegal substances to seat belt laws to prison reform to basic parliamentary procedure. Of those 85, roughly a quarter have passed through both chambers; only five have been signed into law; only three pertain to violent crimes.
We absolutely have a violent crime problem. But would HB 80 be positive reform?
Duty to Retreat.
The largest objection to House Bill 80 is that it blows up the existing “duty to retreat.” As mentioned above, current law [11.81.335(B)], necessitates that, in public places, “A person may not use deadly force under this section if the person knows that, with complete personal safety and the complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter….”
Representative Neuman’s proposal seeks to add “any place where the person has a right to be” to the list of protected areas where a citizen should feel no obligation to avoid a violent encounter, even if he or she has an ability to leave the situation safely. In application, this alters the structure of the legal provision from a position where it affords the exceptions where the use of deadly and/or non-deadly force is sanctioned by the state (as a last case scenario to protect the would-be victim), and turns it into an explicit legal protection for vigilantism.
After stalling out in 2011, the legislation was heard for the first time in 2012 in the Senate Judiciary Committee. What garnered little attention in 2011 now had momentum fueled by an abundance of co-signers, a plethora of other states signing on, and a big push by the National Rifle Organization and the American Legislative Exchange Counsel.
The first reading in the committee, chaired by Senator Hollis French (D-Anchorage), took place on March 7. Rex Shattuck, staff to Representative Neuman, introduced the bill, arguing that “the sponsor’s belief is that Alaska statutes do not protect the rights of an individual to defend himself.”
Senator French questioned the necessity of the bill under those auspices, saying: “I think some folks believe that they sort of don’t have a right to defend themselves right now, which is not the case.” He pointed out that someone, under current law, who used deadly force in self defense “would walk in to court with a legal advantage of the state having the burden of not only convicting him beyond a reasonable doubt but disproving his self defense claim beyond a reasonable doubt.”
On March 16, the committee took the bill up again for a full hearing, with testimony from both the public and from individuals invited to offer expert opinion. During public testimony, an Alaskan resident named Gary Ellis voiced his support of the legislation. He reference other states who had similar laws on the books and dismissed hesitance to pass the bill through committee:
“There’s a fairly significant majority of states in the lower forty eight that don’t have ‘duty to retreat,’ and it’s not like it’s a license to kill or anything. Those states haven’t had problems with doing away with ‘duty to retreat.’”
Stand Your Ground in the Lower 48.
Just two weeks before the lights turned on in the Juneau committee room, the unintended consequences of Stand Your Ground laws were on a fast track to national attention. Trayvon Martin – an unarmed 17 year old – was pursued, shot, and killed while walking in a gated community in Sanford, Florida, while on his way to visit family. The man that fired the fatal shot was a neighborhood watch captain named George Zimmerman. When questioned by police, he claimed he acted in self defense under the state’s Stand Your Ground law, enacted by the Florida state legislature and signed into law in 2005.
46 days would pass before a special prosecutor filed charges against him for second-degree murder.
A conviction, however, is far from certain. Although the Florida law’s author, Senator Durell Peadon (R-Crestview, Florida), has told reporters that “[George Zimmerman] has no protection under my law,” legal scholars and precedent beg to differ. Many echo Senator French’s assertion in Juneau, that the court must disprove self defense claims beyond a shadow of a doubt. When the law is changed to omit “the duty to retreat”, and someone pursues a target – as is alleged in the Martin case – the burden of proof that an act of violence wasn’t in self defense rests entirely on the state. In this case, the star witness for the prosecution – the only person with a first hand account disputing Zimmerman’s self defense claim – would be a dead 17 year old.
Florida defense attorney Richard Hornsby told the Associated Press that there is a “high likelihood [that the Martin case] could be dismissed by the judge even before the jury gets to hear the case…. [because the law] puts a tremendous burden on the state to prove that it wasn’t self defense.”
There is supporting precedent to back up the claims of both Hornsby and French, and it comes by way of a Pasadena, Texas case.
In 2007, Joe Horn – 61years old and retired – called authorities to report two burglars breaking and entering his neighbor’s house. With the emergency dispatcher on the line, Horn cocked his shotgun, announced that he was going to go after them, and left the receiver idle as the sound of gunshots fired. Police found the two burglars dead on the ground. Both were shot in the back. Horn, in no immediate danger from the burglars and on record announcing his pursuit of them, “[claimed] self-defense under the [Texas state] legislature’s reformulation of the ‘castle doctrine’ that, as of September  no longer requires a Texan to retreat before using deadly force at his own ‘habitation’ in the face of a perceived lethal threat.”
The Texas law, unlike codified Alaska law, did not include any such provision that would provide for the use of deadly force in cases of protecting a neighbor’s property. But the grand jury ultimately decided in his favor anyway, upholding that the act was done in self-defense and was not murder.
Again, the author of the legislation objected. Texas state senator Jeff Wentworth said the legislation he crafted did not apply to Horn, telling the Houston Chronicle “the castle doctrine simply did not apply because, although the burglars were running across Horn’s lawn, Horn’s home wasn’t under seige – his neighbor’s home was.”
But the precedent set by the unintended consequences of these two similar pieces of legislation far outweighs the intent of the legislation’s framers. Including Rep. Neuman.
Stand Your Ground Laws in Alaska.
James Fayette is an assistant district attorney working out of the Anchorage district attorney’s office, specializing in violent crimes, including gang crimes. Fayette is currently assigned to the violent crimes prosecutions section of the Anchorage District Attorney’s office. “That’s eight lawyers,” he said, “that do nothing but felony prosecutions; homicides, felony domestic violence, robberies. We deal with this every day.”
He appeared before the Senate Judiciary Committee on March 16, 2011, at the request of Senator French to offer expert opinion on House Bill 80.
Mr. Fayette was very clear in his disapproval of the legislation.
There’s not a single member of the prosecution community that supports this. This is a bad idea. This is a dangerous bill…. This bill has unintended serious consequences. We just heard a supporter [offering public comment via teleconferencing] say, ‘the victims ought to have rights, and should have more rights than the criminal.’ Well, philosophically, I guess I agree with that, but here’s the problem. When people are arrested – when violent criminals are arrested and they come to court, guess what they’re going to say? They’re going to say self defense and they’re going to take advantage of the legislation that you’re being asked to pass. That’s the problem. I prosecute gang members, murderers, drug dealers who settle scores at the point of the gun. They’re going to take advantage of this law.
It was the Anchorage prosecutor’s opinion that House Bill 80 would not protect innocent would-be victims, but would instead empower known violent criminals, now given a legal defense for their crimes. He posited, before the committee, that gang members often fight on public streets. The legislation being proposed would take away the “duty to retreat” in those instances. Similarly, road rage takes place on public streets and highways, by passengers in cars that they own. In other words, it takes place in an area where people have a legal right to be. He backed these statements up by citing existing cases, within the municipality of Anchorage, involving known gang members who claimed self defense in homicide cases. In two cases, the prosecution’s case hinged on video surveillance footage of the crimes. He felt that, had that footage not been available and this law in place, it would be much more difficult (at best) or impossible (at worst) to achieve the convictions of murderers.
It will only benefit criminals, violent criminals… It will do nothing to enhance the safety of law abiding gun owners. Absolutely nothing. Existing law defends their right to protect their children; to defend their homes. What it will do is make it harder for myself and my colleagues to convict dangerous criminals. I will have conversations [with victims' families] to explain the legal system to them and the trial dynamics as it has been my privilege and duty to do for the last twenty years. Please don’t make me have a conversation with those people that in 2012 the Alaska legislature made it easier to kill people.
His testimony inspired one of the bill’s backers, Senator Lesil McGuire (R-Anchorage), to question her support. She ultimately did not recommend passage of the bill out of committee.
The Fate of House Bill 80.
HB 80 emerged from the Senate Judiciary Committee with only two recommendations for passage, from Senators Wielechowski and Coghill. The next step on its journey was the Senate Finance Committee, where it remained when the 27th Legislature closed in the final minutes of April 15.
Commentators, notably Paul Jenkins of the Anchorage Daily News, have taken to eulogizing it’s failure to pass as a partisan issue, announcing that it had “fallen victim to the Left’s national nuttiness.”
He conveniently glossed over the bipartisan support of the bill, and the nonpartisan nature of the objections to it.
This was a special interest bill. The popularity of the special interest behind the bill (in this case, the NRA) should not negate the nature of special interests: the organization pushes an agenda that serves the organization. That’s not inherently nefarious and by no means criminal, but one should acknowledge that the agenda of the organization might not always directly parallel the best interests of the people. Putting a community’s concerns over the agenda of the special interest is antithetical to their role. Lobbyists are still lobbyists.
And lawmakers are still tasked with making good laws. Our representatives need to take a look at the necessary reforms needed in our system to curb the violent crimes that very much afflict our state. Special interests and the officials who benefit from their campaign coffers advocate legislation like HB80, touting that it is some sort of silver bullet for crime, and disregard that it is very much more likely a hail of bullets that miss the target completely. If certain lawmakers are treating a bill (which could cost lives) as a quick bullet point on campaign literature, they’re doing their jobs wrong. And opinion writers on either side who seek to manipulate the issue to use as a partisan tool should grow up.
There is no silver bullet for violent crime. A society can, however, invest in many projects aimed at preventing violent crimes from happening, rather than attempting to reform how we react to their occurrence. Investments should focus on youth engagement and prevention. Violent crime has a less likelihood of occurrence if you remove the violent criminal. We should explore tax incentives for moving police officers into residential neighborhoods with high crime rates. Kids who, otherwise, might fall into crime should be given a way out – a better school, a skate park, a mentor.
Treating poverty, lack of opportunity (in areas of education and employment), mental illness, child hunger, and addiction are areas of emphasis that seem much more plausible than state advocated mutually assured destruction. Reintegration programs need legs. Penalties for nonviolent drug offenses should be reviewed and decreased. During the coming election season and going into the next legislative session, these prescriptions should be the candidates’ platforms; we should hold them to account for new ideas and recommendations that strengthen society, not create new and costly liabilities.
House Bill 80 should not have a place in future discussion. The bill would be controversial legislation in Deadwood. It is surely less of a platform to speak from, and much more a plank to walk off of.