Monday, January 28, 2013
Alaska arrest law
The purpose of this article is not encourage Alaskans to go out and to make arrests, but to inform Alaskans that they have statutory authority to act in their own self-interest, if the situation requires it, and there is no law enforcement available. Alaska statutes give Alaskans the ability to deal with the criminal who thinks that he/she can violate Alaska’s criminal code in Bush communities, a remote mining camp or oil field, in remote wilderness or upon Alaska’s waters with impunity when there is no law enforcement available. This is another situation where lawfully carrying a firearm is in one’s best interest for safety, security, and in support of one’s public duty obligations.
The Second Amendment is restated under Article 1 §19 of the Constitution of the State of Alaska. Alaska’s Constitution further defines the right to keep and bear arms as an individual right, free from interference by the State or any political subdivision of the State.
Article 1 Declaration of Rights
"§19. Right to Keep and Bear Arms.
A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State."
Alaskans have cause to carry weapons more frequently than other Americans, because of Alaska’s frontier status. The reasons for this are founded in the vastness of Alaska, 663,300 square miles, two and four legged predators, the lack of surface transportation infrastructure, and the lack of law enforcement outside of south central Alaska. Therefore, where there is no timely alternative, Alaska law has provided a means for the private person to arrest those that commit an offense under Alaska law.
The Legislature of Alaska has recognized Alaskans right to self defense and self-protection with a firearm under the Second Amendment. The role of firearms in Alaska covers survival, subsistence and sport hunting, use in the State Defense Force and the unorganized militia, and self protection/self defense against two and four legged predators. If necessary, that use covers self protection/self defense in situations involving a citizen’s arrest under Alaska statutes.
Any private person or peace officer in Alaska is authorized the power of arrest.
AS 12.25.010. Persons Authorized to Arrest
"An arrest may be made by a peace officer or by a private person."
It is the individual’s decision as to whether or not the person makes an arrest or ignores the situation and goes about one’s business. Note that the term ‘private person’ means any private person, citizen or not.
AS 11.81.900. Definitions.
"(b)(16) "deadly force" means force that the person uses with the intent of causing, or uses under circumstances that the person knows create a substantial risk of causing, death or serious physical injury; "deadly force" includes intentionally discharging or pointing a firearm in the direction of another person or in the direction in which another person is believed to be and intentionally placing another person in fear of imminent physical injury by means of a dangerous instrument;
(b)(24) "felony" means a crime for which a sentence of imprisonment for a term of more than one year is authorized;
(b)(44) "peace officer" means a public servant vested by law with a duty to maintain public order or to make arrests, whether the duty extends to all offenses or is limited to a specific class of offenses or offenders;
(b)(45) "person" means a natural person and, when appropriate, an organization, government, or governmental instrumentality;
(b)(49) "premises" means real property and any building;"
AS 12.25.160. Arrest Defined.
"Arrest is the taking of a person into custody in order that the person may be held to answer for the commission of a crime."
What are the grounds for a citizen to make an arrest?
AS 12.25.030. Grounds for Arrest by a Private Person or Peace Officer Without Warrant
"(a) A private person or a peace officer without a warrant may arrest a person
(1) for a crime committed or attempted in the presence of the person making the arrest;
(2) when the person has committed a felony, although not in the presence of the person making the arrest;
(3) when a felony has in fact been committed, and the person making the arrest has reasonable cause for believing the person to have committed it."
Note that the crime must be of at the level of both a misdemeanor or a felony under Alaska statutes. If the crime is a misdemeanor, the person or peace officer, the commission of the crime must have been committed in the presence of the person or peace officer.
AS 11.81.390. Use of Force by a Private Person in Making an Arrest or Terminating an Escape.
"In addition to using force justified under other sections of this chapter, a person, acting as a private person, may use nondeadly force to make an arrest or terminate the escape or attempted escape from custody of a person who the private person reasonably believes has committed a misdemeanor in the private person’s presence or a felony when and to the extent the private person reasonably believes it necessary to make that arrest or terminate that escape or attempted escape from custody. A private person may use deadly force under this section only when and to the extent the private person reasonably believes the use of deadly force is necessary to make the arrest or terminate the escape or attempted escape from custody of another who the private person reasonably believes
(1) has committed or attempted to commit a felony which involved the use of force against a person; or
(2) has escaped or is attempting to escape from custody while in possession of a firearm on or about the person."
Note the qualification of the felony offense involving the use of force against the victim, and the escapee being in possession of a firearm.
The amount of force one can use in making an arrest is limited by law.
AS 12.25.070. Limitation on Restraint in Arrest
"A peace officer or a private person may not subject a person arrested to greater restraint than is ncessary and proper for the arrest and detention of the person."
Obviously, only that force necessary and reasonable can be used in making the arrest. However, the private person may use force, up to and including deadly force in making an arrest or when assisting a peace officer in making an arrest. This in recognition that violent offenders may use force themselves in resisting arrest.
AS 11.81.380. Justification: Use of Force by Private Person Assisting An Arrest or Terminating an Escape.
"(a) Except as provided in (b) of this section, a person who has been directed by another who that person reasonably believes to be a peace officer to assist in making an arrest or terminating or preventing an escape may use nondeadly force when and to the extent the person reasonably believes it necessary to carry out the peace officer's direction. A person may use deadly force under this section only when the person reasonably believes it necessary to carry out the peace officer's direction to use deadly force.
(b) The use of force under (a) of this section is not justified if the person believes that the peace officer is not justified in using that degree of force under the circumstances."
AS 11.81.390 as stated above also authorizes the use of deadly force only against those who have committed a felony involving violence or an escapee with a firearm.
Deadly force is authorized as necessary. The use of a firearm by the private person is anticipated for self-protection/self defense under AS 11.81 of Alaska statutes.
What is the authority given the person attempting to retake an escaped offender?
AS 12.25.120 Retaking Escaped Prisoner
"If a person arrested escapes or is rescued, the person from whose custody that person escaped or was rescued may immediately pursue and retake that person at any time and in any place in the state."
Obviously, the pursuit of an escaped prisoner can be made by the person making the arrest. Alaska law does not qualify the arresting individual as other than "the person from whose custody that person escaped".
Does a person under Alaska law have an obligation to assist a peace officer, should the person be directed to do so by a peace officer?
AS12.25.090. Peace Officer’s Authority to Summon Aid.
"A peace officer making an arrest may orally summon as many persons as the officer considers necessary to aid in making the arrest. A person when required by an officer shall aid in making the arrest."
If called upon, it is the duty of an Alaskan to comply with the peace officer’s request for aid.
Under what circumstances can a person use deadly force under Alaska law?
AS 11.81.335. Justification: Use of Deadly Force in Defense of Self.
"(a) Except as provided in (b) of this section, a person may use deadly force upon another person when and to the extent
(1) the use of nondeadly force is justified under AS11.81.330; and
(2) 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 degree, sexual assault in the second degree, sexual assault in the second degree, or robbery in any degree."
Note that Alaska law does not require a level of threat of jeopardy to live, just to ‘serious injury’.
(b) A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating, except there is no duty to retreat if the person is
(1) on premises which the person owns or leases and the person is not the initial aggressor; or
(2) a peace officer acting within the scope and authority of the officer’s employment or a person assisting a peace officer under AS11.81.380.
(3) in a building where the person works in the ordinary course of the person’s employment;
(4) protecting a child or a member of the person’s household."
In the Bush, any injury that serious physical injury could very well be mean death if the person is unable to get help immediately. HB55 introduced earlier this month by Rep. Mark Neuman will expand the Castle Doctrine under 11.81.335 to include ‘any place where the person has a right to be’, if passed by the Legislature and signed into law.
It is unconscionable for any legislative body to restrict the law abiding to a duty to retreat when confronted by a criminal. For a legislative body to pass such unconscionable legislation is to give the criminal an unreasonable advantage in any situation when attacking the law abiding. The criminal will know that he/she may act with impunity as the victim will also be required to unarmed. New Hampshire’s Legislature is considering revoking their Castle Doctrine provision of "any place where a person has the right to be" and replacing it with a provision once again requiring the law abiding to retreat in the face of a criminal attack. If one cannot run or run as fast as the criminal(s), then what? What happened to one’s natural rights of life, liberty and the pursuit of happiness?
Alaska law, like Florida’s Castle Doctrine, has given back to our law abiding citizens the right to self defense. The armed citizen is not a victim, and the criminal cannot rape a ".38". Therefore, in recognition of the random nature of crime, Alaska’s Legislature has reaffirmed Alaskans’ right to self protection by use of a firearm under the Second Amendment. In fact, Alaskans can act in their own self interest and effect an arrest under Alaska law.
What is the jeopardy for the individual acting in the ‘public duty’ and either assisting a peace officer or in making an arrest?
AS 11.81.420. Justification: Performance of Public Duty.
"(a) Unless inconsistent with AS 11.81.320-11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order,
(b) The justification afforded by this section also applies when
(1) the person reasonably believes the conduct to be required or authorized by a decree, judgment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or
(2) the person reasonably believes the conduct to be required or authorized to assist a peace officer in the performance of the officer’s duties, notwithstanding that the officer exceeded the officer’s authority."
Given Alaska’s vastness and the lack of law enforcement resources in much of Alaska, firearms carry is common in Bush Alaska. Obviously, the reason for possession of firearms encompasses defense against predators, two legged or four legged, survival, and one’s militia obligation and right to self protection by use of a firearm under the Second Amendment. One’s firearms also come under lawful use in one’s obligations to the public duty by making an arrest or coming to the aid of a peace officer under Alaska law.
If called upon to aid a peace officer, and one is carrying concealed, one must always immediately inform the peace officer that one is armed.
Alaskans should consider advisable lawful concealed carry in Alaska’s larger towns and cities. Alaska’s population has increased by approximately 80,000 over the last five years. Many of those coming to Alaska are hoping for jobs and opportunity now lacking Outside, because of the ongoing recession. Unfortunately, along with the law abiding came the criminal element and an increase in drug trafficking. The right to use a firearm for self protection has been reinforced under Alaska law giving the law abiding Alaskan practicing lawful carry an advantage in any encounter with the criminal element. The criminal cannot count on even liberal Alaskans being unarmed.
In is incumbent upon the individual who practices legal carry of a firearm in Alaska to know the law regarding the use of deadly force. This knowledge is paramount to understanding your rights in the aftermath of an encounter that results in the use of deadly force. The decision to use deadly force rests with the individual. Therefore, taking a concealed weapons carry (CCW) course is an excellent idea, even if one does not desire to apply for a CCW permit. If you intend to carry, you need to know the law.
A serious firearms training program to develop one’s skill with a firearm is absolutely necessary to be competent to carry and to insure that one is able to properly react to an armed confrontation. A few hours at a firing range monthly or at least every quarter will insure your skills are maintained. There are many good firearms instructors in Alaska who can assist in developing your skills with your firearm that you intend to use for concealed carry.
The incident in 2012 involving two NYPD police officers who managed to hit 9 innocent bystanders when firing at an armed suspect who was within 15 feet of the police officers is a reminder that not even the professionals get it "right" every time.
The fact that one’s public duty may require one to act to arrest another who is in violation of the law is a responsibility not be borne lightly. The ability is there under Alaska law, but the choice whether or not to act in defense of the law is rests with each "private person". One should only act to effect an arrest when there are no law enforcement resources available within a reasonable time.
The foregoing is presented merely for informational purposes. Any opinions expressed are those of the author. Contact an attorney if you have an questions or concerns about your rights under Alaska law.
For more information:
Second Amendment to the Constitution of the United States
Article 1 §19, Constitution of the State of Alaska
New Alaska firearms legislation
Most Alaska jurisdictions have few restrictions on open carry. Open carry restrictions with respect to where you can carry are the same as the concealed carry restrictions.
AS 11.61.190 through AS 11.61.200 define misconduct with a weapon.
Alaska concealed handgun permit statutes and regulations
Department of Public Safety Alaska Concealed Handgun website
List of States with which Alaska has reciprocity
Firearms ownership or possession
DPS concealed firearms permit contact information
Concealed Handgun Permits information and application forms
Restrictions as to where you can concealed carry in Alaska
List of approved finger printers