A State House bill that would expand the right to self defense in Alaska has been getting increased attention, in part because of the Trayvon Martin case.
Florida, where Martin was shot last month, passed a similar law in 2005. HB80 would change the definition of when Alaskans can use deadly force.
Currently Alaska law says you can defend yourself if you’re threatened or attacked in your home, business, at risk of being car jacked or defending a child or family member regardless of where you are, or if you’re a police officer. HB80 would drop the current requirement that in all circumstances other than the home, business or car, you have a duty to retreat if you can do so with “complete safety.” Anchorage prosecutor James Fayette, who testified against the proposal, says an unintended consequence could be an easier path for criminals.
“I don’t think anybody that supports this legislation wants to help gang members, that’s not what I’m saying at all. I just think it’s an unintended, ironic consequence that this bill would then allow the gang guys to come to court and say well, I was on the sidewalk, I have a right to be there, I didn’t have any duty to walk away. And if you’ve ever seen one of these cases litigated in court, you would see how easy it is for somebody we would all agree is a criminal, to come to court and claim self defense.”
Fayette works for the Anchorage District Attorney’s office, but stresses he’s speaking out as a citizen and long time prosecutor, not as a representative of the DA’s office.
Similar laws expanding the right to self defense such as Florida, where it’s referred to as the Stand your Ground statute, have been sponsored by the National Rifle Association. Republican Representative Mark Nueman is from the Mat Su Valley’s Big Lake area. Nueman says more than 20 states now have removed the duty to retreat. Nueman says he is an NRA member but that’s not necessarily why he sponsored the legislation.
“The fact remains that I just feel people should have the right to protect themselves. You know if you have rights when you’re sitting in your home to protect you and your family, why should you not also have those rights when you’re out walking down the street or camping or fishing. Why should you not continue to have those rights?”
But James Fayette says the law does allow Alaskans to protect themselves or their family members now in the settings Nueman describes. The standard is you must walk away if you can do so with complete safety. He says the duty to retreat is based on the premise that there will be times when it’s better for people to walk away rather than take a life.
“ Because self defense is a powerful criminal defense, when the jury is satisfied that someone acted in self defense, the result is not guilty, it’s not like oh, ok, he’s charged with murder but maybe it’s like self defense and we’ll only convict him of manslaughter. It’s not like that. The result is not guilty. It’s very much a license to kill, that sounds very edgy, that’s exactly what this statutue is, they’re amending the statute that is the legal license to kill and if the jury thinks that’s what happened, the result is Not Guilty and people need to understand that.”
Representative Nueman says there were no changes made to the justification part of the current law. He says if you’re a gang member or intoxicated, you can’t claim self defense. But Nueman and Fayette both say almost all people who use deadly force claim self defense in court. Nueman says that’s just the way it is.
“That’s why we have judges and juries and court rooms that do that. And they can go through that court process and figure that out. Me as a guy sitting her on the sidelines trying to second guess what’s best or right or wrong. That’s just not appropriate for me to do.”
The bill has already passed the house. Senator Hollis French, a Democrat from Anchorage, said although he had concerns about the bill he agreed to pass it out of the judiciary committee and send it to Senate Finance. A similar bill in Minnesota was vetoed recently. In the Florida case, the man who claimed self defense and shot Trayvon Martin has not been charged with any crime.
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Lori Townsend is the news director and senior host for Alaska Public Media. You can send her news tips and program ideas for Talk of Alaska and Alaska Insight at ltownsend@alaskapublic.org or call 907-550-8452.
