House Judiciary Committee Part 1
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Transcript
Bills discussed (7)
| Bill | Title | Sponsor | Status |
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HB1958
· 2 mentions in chapter, transcript
Matched: “HB1958”
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Pre-2017 bill | ||
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HB1407
· 1 mention in chapter
Matched: “HB1407”
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Pre-2017 bill | ||
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HB1631
· 1 mention in chapter
Matched: “HB1631”
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Pre-2017 bill | ||
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HB1701
· 1 mention in chapter
Matched: “HB1701”
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Pre-2017 bill | ||
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SB1000
· 1 mention in chapter
Matched: “SB1000”
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Pre-2017 bill | ||
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SB707
· 1 mention in chapter
Matched: “SB707”
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Pre-2017 bill | ||
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SB810
· 1 mention in chapter
Matched: “SB810”
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Pre-2017 bill |
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Take care of the housekeeping matter real quick, and then we've got a special order of business. Mr. King had to run up and do something real quick. Mr. Love, let's go ahead and get your concurrence, actually your small amendment. I believe we can do this pretty quick. Members, Mr. Love was here last time, and we passed his bill out. He had to change a brought to a born. He's done that. He's brought that back as we ask him to just make that correction.
I've got a motion of due passes. A minute all in favor indicate by saying aye. Aye. Opposed, no. Thank you, Mr. Love. That's pretty easy for you, wasn't it? Thank you. All right, no problem. Yeah, last time it's that easy. Members and guests, we are very likely to have an afternoon session during recess, so just keep that in mind. And it is possible that we may meet even after adjournment, depending on what time we get out.
So don't go away. Who knows? I know. It won't be long. I know you've got speaker's ball. We may not. I said it's possible. Depending on what time we get done, Mr. Branscombe. We have lunch coming today. So when it gets here, you can just go and get lunch and keep eating. I fail to say thank you to the trial lawyers who provided lunches several times, to Roger Smith,
and today's lunch is provided by the Cranford Coalition. So I fail to thank them. So just thank them when you see them. Mr. King, are you ready to run your special order? Yes, sir. Members, this is House Bill 1958 by Mr. King. Mr. King, you're recognized. Thank you, Mr. Chairman. Thank you, members of
Representative Bryan B. King
Unverified
1:58
the committee. You know, one of the things my dad and my brother and I farm together,
and one of the things we enjoy each day, if we possibly can, is to come in and eat lunch together and watch black and white Andy Griffins on Channel 3 out of Springfield, Missouri. And the reason we do that, it kind of takes us back to a simpler time, and we really enjoy the show even though we've watched them several times we still enjoy it but you know as today we know that we have a much different world than what that is today and sometimes we have to address things in ways that we wouldn't ordinarily want to do to have to address situations we know from media accounts and i could go through them
to tell you each one of the the situations that we see and we all know these about church shootings and the violence in church that has been put on churches from people that want to cause harm to either people in those churches for personal reasons or religious reasons. We know in 2009 that we voted on a concealed weapon bill that struck language on churches being allowed to carry concealed weapons. You know, I felt like, and I voted for that bill, but I felt like there was a better solution out there.
And I know that that bill was amended several times from its original form, and what it wound up being was a church that each church could decide. And that's what I'm coming to do today with you, with the bill today, to say this is about each individual church being able to decide about how they want to address certain situations. Originally, I looked at possibly them putting up a sign, and then some people didn't like that. So what I did was, through the advice of Representative Stewart, who is a co-sponsor,
he showed me the language in this state police book about concealed weapons that allow judges to be able to carry concealed weapons or designate somebody to carry concealed weapons. This, first and foremost, is a church freedom bill. So this allows each church to decide who they want to, if they want to even allow someone to carry a concealed weapon, it would allow them to decide who they want to allow, or who they would, if they want to allow concealed weapons,
it would allow them to say who could carry concealed weapons in their church. I would be safe in saying that some churches out there probably are already allowing people to carry concealed weapons in church because they have situations come up. Once again, I want to talk about all the media where we see people come into churches and they shoot somebody. We all see that. We saw even though I'm pro-life, I didn't agree with the man that went into church and shot the doctor that performed abortions.
I mean, I'm not for shooting someone in that situation, but that was in the news. So this isn't necessarily a conservative, liberal, religious, non-religious issue. This situation comes from, this danger comes from a lot of different areas. I also want you to understand one thing. I want you to understand the difference between urban and rural situations. You know, in urban, bigger cities, if a church has a situation, they may already have an officer patrolling nearby.
So the response time would be a lot shorter. In rural situations, we all know from us from rural counties that there may not be a deputy within miles of that church. We know that the response time in a rural situation would be much greater. I know there are passion on both sides of the issue. I really do, that are for and against this. But I want you to remember, this is about the church freedom to decide. We know that pastors have to deal with very difficult situations. Churches have to deal with very difficult situations.
I know a church in my area that they have a situation where they have several hundred kids come on a Wednesday night program, and they had a situation where somebody later made threats on a Facebook that they were going to get even with the church because of a problem that came up. Well, it used to, years ago, we probably never worried about those threats. You know, today we do have to worry about those threats. And I want you to remember, because my wife came in and sat through a meeting one time on church safety, And she told me about the situation where churches that they said one of the best defense mechanisms
was if somebody comes in with a gun and starts shooting people, one of the best defense mechanisms is to be able to throw hymnals at them. This bill would just allow each individual church to make their own decisions on how they want to handle that situation. And I'm asking you as members of the committee today to allow that church however they want to. If they want to be able to allow them to throw hymnals as their defense, I should respect that. If they want to allow them to handle that in a different situation and designate people to be able to allow them to carry concealed weapons,
I want them to be able to have that decision, too. Like I said, first and foremost, this is a
Speaker 9
7:09
church freedom bill. Thank you, and I don't
Speaker 11
7:11
answer any questions. Thank you, Representative King.
Are there questions? Representative Walker, you're recognized. Thank you, Mr. Chair.
Representative King, do we have a state definition of what a church is?
Representative Bryan B. King
Unverified
7:33
I would defer to maybe one of the pastors, maybe Representative Wilkins, who might be able to better answer that. Do
Speaker 11
7:46
you know Representative Wilkins? If we have a state definition? Yes. I'm not sure if we have a state definition I would define a church as St. James United Methodist Church located at 900 North University Pine Bluff, Arkansas come see us whenever
Representative Bryan B. King
Unverified
8:01
you possibly can I will say as somebody informed me
that churches are excluded in the original definition we do know
that well would not the definition have to be added to whatever the language from what the exclusion was made, would not that have to be first amended so that a church would have to be defamed? Well, I
Representative Bryan B. King
Unverified
8:27
think the church is, you know, it mentions church. What the language I'm going to, Representative Walker, is the part, and
I'm applying it from the advice of Representative Stewart,
was that on the prohibited places it says any courthouse, And then it says 6A, any courtroom. B, however, nothing in this subchapter precludes a judge from carrying a concealed weapon or determining who will carry a concealed weapon into his or her courtroom. So, I
mean... Well, you would agree that that doesn't help us with respect to the definition of church. Would you agree that church is a loose definition where people may assemble without being in buildings?
Representative Bryan B. King
Unverified
9:12
I would agree with you, but if somebody wanted to have church in their home, then my understanding is through concealed weapons that that's already covered. And if somebody has a home and they do not want to allow somebody to carry concealed weapons, they have that right to tell people. I'm just giving that same freedom to the church to be able to decide, much like a business. I have a concealed weapon permit, and if a business has a sign up
that I cannot carry concealed weapons there, I have to respect that.
I see. Now, have you had an impact statement? I guess my concern is how many people have had situations where in the last ten years there has been church violence in comparison to the number of interactions
Representative Bryan B. King
Unverified
10:02
that people just normally have? Yeah. Representative Wilkins just gave me or other place of worship in this thing,
but restate your question, I'm sorry.
You do agree that we cannot just address every minuscule situation that may happen in life. Do you agree with that?
Representative Bryan B. King
Unverified
10:23
I think we can address how that could possibly handle that situation when it comes up and give people and churches the individual freedom to address those situations when they come up. This is a reactionary issue to a potential problem that many people do
not see when it happens. I see. Well, do
you have any evidence, any empirical evidence, to establish the extent of this
problem or potential problem in Arkansas? You know, I have
Representative Bryan B. King
Unverified
10:53
my own personal experiences. No, I'm not asking
about that. evidence. You, Representative King, you know where that is, of course. It's evidence that has been assembled by people who have the duty to assemble evidence on an objective basis who represent the state of Arkansas. Do you have any of that? Well, I have eight
Representative Bryan B. King
Unverified
11:11
co-sponsors on this committee. That's not my question.
My question now is the extent of the problem. Do you want me to
Representative Bryan B. King
Unverified
11:19
sit here and tell you that statistically I have something that I can put in front of you from a study to be able to tell you, Representative Walker, and I do not. But I can tell you as a legislator that cares and concerns of my constituents, of people that deal in this area, my own personal experiences, as with a lot of the people that I have visited with, that we have situations where on Wednesday night, and I'll give you a situation, we have kids that come with the ankle monitors, that they're allowed to come to church.
And we have a situation with kids that have problems, and I'm just allowing Representative Walker, with all due respect, to allow those churches to be able to make their own individual decisions on how they would react if they need to. And let me understand this. Churches, I believe, people are involved in churches, and they can make decisions. In our congregation, we have a retired federal prison guard. We have retired military guys. There are peoples that churches could decide those individuals that could carry the weapon or could not.
Are there any standards that are set forth in your bill that a church must meet in making this judgment?
Representative Bryan B. King
Unverified
12:35
It's up to each individual church to be
able to let their congregation know their policy, much like it's up to each individual church now to let their policy know on how money is spent, on who is a deacon, on who is maybe is
funded to a mission trip. Now, how is this exercising religion, free exercising religion?
What does having a gun in this church house? Mr. Walker, I'm going to ask you to keep your questions to the bill. I am just in all due respect. I would like to know, since the argument is that
this is promoted on the basis that it's
free exercise of religion. Well, that may be the argument. I'm sorry for just getting back. But the bill is just to expand the list of primitive places to churches. And so whatever the purpose for that is, that's what the bill requires. Whether that's free exercise of religion or not, that's outside the scope, really, of this bill, because we're not defining religion in this bill.
If you'd limit your questions to that, I hate to cut you off. We've got a lot of things on the agenda. And he does have eight co-sponsors, and we'd like to move forward. So if you've got questions related to this particular bill, let's have them
and let's move forward. All right. Thank you, Mr. Chair. I don't guess I'll ask another question on this at this
time, but I will on the floor. If you have any questions on the
bill, please ask them, Mr. Walker, if it's related to this bill. Well, as I understand the bill, the bill has a rationale, And the rationale is what you address as well as the language, and I sought to do that.
But, you know, I have made my point, I think.
Speaker 43
14:12
Thank you. Members, any additional questions? Mr. Rice,
Representative Terry Rice
Unverified
14:20
you have a question? Go right ahead. Mr. King, from two years ago when we went through part of this, would you remind me, who is it besides churches that can't have firearms, concealed firearms? Well, I
Representative Bryan B. King
Unverified
14:36
think I can read that to you.
Detention facility, prison, jail, any building of the Arkansas State Highway and Transportation Department or onto grounds adjacent to the building of the Arkansas State Highway and Transportation Department, that subdivision of this section does not apply to a rest area or a way station of the Arkansas Highway Department of Transit. any Arkansas Highway Police Division, any police station, sheriff's station, or department of Arkansas State Police Station, the courtroom with the exemptions of, like the judge mentioned,
any polling site, any meeting or place of a governmental body of any governmental entity, any meeting of the General Assembly or a committee of the General Assembly, and there's some other ones. Any
Representative Terry Rice
Unverified
15:24
state office. Do you want me to read them all? No, that's fine. I kind
of get the gist of what I'm trying to think of. Also, do you feel like now that if there are members, deacons, elders of churches, places of worship now, if they had concern for fellow members, maybe of a threat or something else,
there are churches we had testimony, I think, two years ago about some rural churches. I go to a rural church, about 30 to 50 people, depending on the day. And we're at the best, at the very best, 20, 25 minutes from law enforcement. Do you feel like currently now there may be people that, if they thought there was a threat, might be carrying concealed
weapons right now? I would not comment on
Representative Bryan B. King
Unverified
16:15
whether I think churches are. I think that's – I would say that's a given.
And let me remind you, I believe, and somebody may correct me, but Bernard Goetz in the subway shooting, if memory serves me, he was not convicted of actually shooting someone or that. He was actually convicted of not carrying a registered firearm or something in that regard.
Representative Terry Rice
Unverified
16:37
And the reason I ask the question, and I'll ask if you agree, but churches
and places of worship are a place different, and I understand both sides. I wish that we didn't live in a world that we'd ever even have to think about this, but we do.
We live in a world that there are people that have drug problems and everything else, and do you not feel that this will give the church the right, I think you've stated it, but I'll ask you again, give the church the right of choice if they feel like they have people that need protection? That's correct.
Representative Bryan B. King
Unverified
17:14
And as I stated earlier, my wife said from a church security person, she said to a safety and said, well, if you don't have, and some churches have private security come in now or policeman patrol, if you don't have people allowed to carry concealed weapons, your best defense is to throw hymnals.
And this would just allow people to, churches to decide how they want to address that situation. And I've had people, since we passed that bill in 2009 out of the House, people that were against it at that time later have told me through situations that have happened. And that's the reason I brought this bill back was because they had situations of threats being made on a Facebook by younger people. They had threats, and they said, you know what, I've changed my mind on this issue.
And so this is not a bill to cause problems. This is a bill to react to a potential problem. Thank you. Thank you, Mr. Chairman. Thank you,
Mr. Rice. Mr. King, questions from the chair, and I appreciate what you're trying to do here. Unfortunately, my constituents disagree with you, and so I'm going to have to side with them, and I am opposed to the bill, but I want to ask you a question just how this works in case it passes. I think currently the places where you can carry concealed weapon, don't you have to post some kind of sign? And you may have said this while I was out.
Representative Bryan B. King
Unverified
18:33
Isn't there a sign requirement? I think if I look
in here in the businesses, any place at the discretion of the person or entity exercising control over the physical situation of the place by placing at each interest to place a written notice clearly readable at a distance of not less than 10 feet that carrying a handgun is prohibited.
I guess my question is, so if my church, which they've told me they don't want anyone to have concealed weapons, if they want to prevent someone to have concealed weapons, will they have to post these signs on the church saying concealed weapons are prohibited? They could. My intent is
Speaker 24
19:18
that they could post a sign if they want to. If they don't want to post a sign, they just have a policy saying they don't allow that. They don't have to post a sign.
Well, I appreciate that. We welcome visitors all the time and love to have you come
sometime to our church. But if you're not a regular member, you won't know that we don't have a concealed weapon policy.
Representative Bryan B. King
Unverified
19:35
How would a visitor know that? That's not correct. You would have to know as a concealed
weapon permit holder. I would have to know, and it would be described in the law when you go through your training, that if I didn't have the expressed authorization from that church, much like the judge in the courtroom gives to people to allow them, if I don't have that, then I know that I cannot do that. If I visit your church and would love to do so sometime and you can come to mine, if you come into my church with a concealed weapon without being authorized, then you would not be in violation.
Okay, so that's a part of the concealed weapons training you know that you've got to be in violation. Okay, all right. It's much like the language in the book that we have in doing judges.
Like I said, I have to brag on Representative Stewart because he helped me with this. Well, I appreciate it.
Representative Bryan B. King
Unverified
20:27
I just didn't want to have my church have signs saying no concealed weapons. And I understand. And originally I had drafted amendments saying so, but through the advice and concerns of several others in the committee and Representative Stewart, I have listened to their wisdom and have amended it to fit their needs.
Thank you, Mr. Wilkins. Mr. King, we have
Speaker 11
20:45
a question for Mr. Wilkins. Thank you, Mr. Chairman. Mr. King, if you would, and you've answered some of this already in responding to Chairman Williams' question. And as you're well aware, a similar bill by I think it was Representative Powell last time got hung up on the Senate end, and I was the deciding vote on Senate Judiciary that kept it from passing.
And my concern at the time had to do with this whole issue of signage. So if you would, explain to me again, because what you talked to me about before when you asked me to consider being one of the co-sponsors, what we have before us is somewhat different than what we had originally talked about. So just walk me
Speaker 21
21:37
through that process just a little bit, if you would. Well, when we
Representative Bryan B. King
Unverified
21:42
had our discussions originally, my intent was to follow the language of the law that basically applied to business standards,
where if a business didn't want to allow me to carry a concealed weapon, they put the sign up. I tried to follow that in through our discussions. We did that. Through your comments and several others on the committee, they didn't like the idea. And I agree with it. That's why I mended it out. I mean, I don't think I would be comfortable. It would take some getting used to to go up and see a church sign that said church at 11, Sunday school at 10. You know, by the way, we're having a bake sale for a Guatemalan mission, and then say, hey, no concealed weapons in church. I mean, so through the input of several people on this committee and several others and your input as well,
we just went back to much like the courtroom that would allow you and your congregation to authorize. If you chose to put up a sign, if you and your church decided, you could do so. But you could also, through your
Speaker 11
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church minutes and however you determine, could authorize who you think, Sha'Carri. All right. I appreciate that. And I guess one of the things that, and I'll see if I can formulate this into a question, and Chairman Williams and I probably have a 99.99999 percent similar voting record, but I think I differ with him on this issue.
After the shooting of the congresswoman in Arizona, there were members of our church and some other churches in my community that raised a question about security. In my particular congregation, that's not as much of an issue because we have people in my congregation who are designated.
But in some congregations, they don't have, and because we have a law right now that says they can't bring handguns into churches, I can see where, after all the things that have happened in the last couple of years, where some congregations would feel that they need that extra level of security and assurance for their members. Would you not agree? I would agree, and
Representative Bryan B. King
Unverified
24:09
it comes through personal experiences,
and I certainly do not have the personal experiences you do as a pastor in dealing with very difficult situations. As I stated earlier, we want kids, all kids, to come to our church, as I'm sure you do, But all those kids have conflicts and issues today. And Representative Wilkins, I talked about earlier, the old black and white Andy Griffins, I like to go back to that. I remember in high school when we had hunting rifles on the back of our trucks going to school. We carried pocket knives, you know. And because of situations out there, laws have been passed to change that, and that's unfortunate.
But this would just allow you the freedom for you to decide how you want to handle the situation. And, you know, I applaud you and your efforts and what God directs you in life to do. And this decision would just be up to you on how to handle very difficult situations in today that we know happen and have to be dealt with. Thank you. I appreciate you. And as far as Representative Williams on this issue, we'll keep him on the
Speaker 21
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prayer list. Well, he's always on my prayer list. And since you
Speaker 11
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said a little something humorous, and I know that the chairman will allow me an extra 15 seconds,
one Sunday I was preaching, and my younger sister has always been concerned about security, and she has even encouraged me to carry a weapon when I'm in the pulpit. And finally, yes, there is a question. I'm coming to a question. And so one particular Sunday, she had really been on my case about this for several weeks. And finally I just said, okay, okay, I'm going to start doing that, which I really wasn't doing, but she thought that I was.
And the cordless mic, the portion of the mic that, you know, fits on your belt loop, slipped off of my belt loop and fell to the floor while I was preaching. and my sister and about 250 other people ducked because they thought my pistol had fallen when in fact it was just simply the cordless mic. Thank you for that question, Vice Chair Wilkins. Any additional questions from the members?
Seeing none, anyone in the audience who wants to speak for or against House Bill 1958, let's see, I have Mike Rose. Mike, would you come? You're
going to speak for 1958. Mr. Chairman. If you would, state your name again for the record,
Mike Rose
Unverified
26:54
please. My name is Mike Rose, and I'm a personal making my opinion on this bill.
It's a good bill. So I do believe we need something like that to cover churches, state capitals, whatever, because you see the incident that happened down in Arizona. Now, I'm a fighter for people with mental illness, including myself. I suffer from mental illness, but I'm on medication. I don't carry a gun. I don't carry nothing that's going to hurt anybody,
especially in the audience or here at this table. But I do believe that Representative King has got a good bill. He's got a good situation that's going on. I think that after the two years was up and make more of a bite the teeth on it, I believe it's a good bill.
questions? Seeing none, thank you, Mr. Rose.
Paul Calvert wants to speak. Anyone want to speak against the bill? I don't have
anyone signed up to speak against. Paul, you recognize I speak for the bill. Thanks for letting
Paul Calvert
Unverified
28:14
me speak. I just want to say something for Mr. Williams. He went to a lot of trouble to help me get my statement printed out because I managed to leave mine at home. I appreciate that. I thought you were speaking against the bill when I was going through all that trouble.
Speaker 85
28:31
Just joking, just joking. So you supported it regardless. Anyway, I think this bill is pretty straightforward
Paul Calvert
Unverified
28:37
in helping to restore the constitutional right of the people to defend themselves and their property. Article 2, Section 2 of the Arkansas Constitution states that all men are created equally free and independent and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty, of acquiring and possessing and protecting property and reputation,
and of pursuing their own happiness, and so on. I think it's a cry in shame that we feel the need to grant permission for churches to provide security to the people who are in attendance on their private property. I think this bill will help to remove some of the doubt about whether or not the leadership will be prosecuted for being prepared to defend the people on their church grounds. And I'll take questions. Thank you. Any questions? Mr. Walker?
What's the name of your organization? I had no organization. I'm just me. Do you recall before
Paul Calvert
Unverified
29:42
testifying on behalf of with liberty and justice for all? No, that's just my cause. Oh, okay. It's just a – that's what I try to promote when I'm
down here. Liberty and justice. Thank you, Mr. Walker. additional questions? Mr. Calvert, thank you for
your testimony. Seeing no one else who wants to speak for or against House Bill 1958, I'm going to recognize Mr. King to close for his bill.
Representative Bryan B. King
Unverified
30:07
Thank you, Mr. Chairman. I just basically want to close. We had a good testimony and good discussion, and I hope tomorrow I get to prepare for Mr. Walker's questions tomorrow, and I And like I said before, let's just allow each individual church to make their own decisions on how they want to handle situations that could be different from just basically throwing hymnals in self-defense if they want to handle that. Thank you, and I'd appreciate a good vote. Thank
you, Mr. King. I recognize Mr. Eubanks for a motion of do pass.
That's a proper motion. Any question or discussion? Seeing none, all in favor of passing House Bill 1958, indicate by saying aye. Aye. Opposed, no. No. Ayes have it. Congratulations, Mr. King. You passed your bill. I only have one hand for roll call. Any additional hands for roll call? Seeing none, that fails, Mr. Walker. It takes two hands for roll call.
Okay, members, we're trying to get our order. We're going to take things out of order here. We've got a lot of people who are signed up who are not
here right now. So we are going to – Ms. Slinkert
– oh, I'm sorry. Yeah, let me take this order. Mr. Stewart. Ms. Slinkert, you've got 1888, a concurrent assented amendment. You want to do that real quick? Ms. Slicker, you want to do 17-on-1 while you're down there?
You want to go and do that as well since you're
there? Yeah, we'll go ahead. Ms. Lincoln, you're recognized to run House Bill 1888.
Representative Mary L. Slinkard
Unverified
32:29
MS. Thank you, Mr. Chair. Members of the committee, after much consultation with others and in view of the question that arose in the committee, I have amended 1888 to, instead of recording the deed, the distributee would only deliver a notice of the transfer of ownership to the county assessor in each county in which the real estate is located. Members, this
is a concurrence in a Senate amendment.
Anyone have any questions of Ms. Linker in
this concurrence? Mr. Walker? Let me understand. Are you saying that you don't file it, you just deliver it? There's no record of the filing? That is correct. Well, what's the effect of it if there's no way for it to be validated that
Representative Mary L. Slinkard
Unverified
33:27
it has been filed in some way? I don't know that. All right, no questions.
Representative Nate Steel
Unverified
33:33
MR. It just – MR. Mr. Steele, question? MR. Rector Slinkler, this simply, I guess, does work with the requirement of having to actually record the deed. Is that correct, in order to have valid title? MS. That is correct. MR. That's what we're trying to do here. Is that right? And I think Representative Shepard and several others had discussed this with you over concern of changing basically the designation of Arkansas as a state that would require recording of
a deed before you had valid title. And we were concerned about that, and your attempt here is to satisfy our concern. Is that correct? MS. That is correct. Thank you.
MR. Thank you. Members, any additional questions? Seeing none, anyone in the audience wants to speak for or against House Bill 1888? Seeing no one, we have a motion by Representative Gilliam of do pass. All in favor indicate by saying aye.
Aye. Opposed, no. Thank you, Ms. Slinkert. You're recognized now
Representative Mary L. Slinkard
Unverified
34:40
to run House Bill 1701, I believe. Okay. Thank
you, Mr. Chairman. Thank you, Mr. Chairman and committee. Have with me at the table June Barron from the Legislative Audit and Mr. Keith Kavanis
from the Administrative Office of the Courts, who will assist me in answering any questions and probably present this bill for you.
Speaker 126
35:19
Thank you. Please state your name and you're recognized to proceed. Thank you, Mr. Chairman. I'm June Barron with the Division of Legislative Audit. House Bill 1701 is a bill that represents a joint effort between the Division of Legislative Audit, the Administrative Office of the Courts, and a group of the District Court clerks. And basically what this bill does is it modernizes the accounting records for District Courts
by incorporating and recognizing the use of electronic methods of case management and financial accounting. And the bill is quite lengthy, and I would certainly be happy to go through each section if that's what the committee would prefer, or we could just answer questions, whatever the wishes of the committee are.
Speaker 127
36:07
to add to that testimony? MR. I would just add that the District Courts want and need this piece of legislation
and the Administrative Office supports it. MR. Thank
you. Members, do you have any questions on House Bill 1701? Mr. Steele, you're recognized. Then Mr. Gillum. MR. Thank you, Mr.
Representative Nate Steel
Unverified
36:24
Chairman. Mr. Kavanis, this doesn't in any way affect, I guess, the apportionment of court costs and fines and things like that between the State and the counties or anything like that, does it no sir it doesn't okay so thank you thank you mr. chairman mr. Gilliam you recognize thank
Representative Jeremy Gillam
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36:41
you mr. chair in light of representative Steele's
question being one that I was going to ask I will move on to a motion at the proper time
thank you members any additional questions anyone the audience don't speak for against House Bill 1701 don't have anyone signed up seeing none Mr. Gilliam. I'm sorry, Ms. Slinker, are you closed for your
bill? We're closed. Thank you. Mr. Gilliam. I make
a motion. Do pass. That's a proper motion. Any question or discussion? Seeing none, all in favor of passing House Bill 1701 indicate by saying aye.
Aye. Opposed, no. Congratulations, Ms. Slinker. Both of your bills have passed. Thank you, Mr. Chair. Thank you, Committee. I saw Ms. Hopper.
She was next on our list. Oh, okay, there we go. Ms. Hopper, are you going to run 14.07 or 19.90 or both? Actually, three. I'd like to start with a little bit about a difference. Well,
you just take the end of the table and tell us what you want to do. Thank you. All right.
Member of Senate Bill 1000, Ms. Harper, you're recognized.
Representative Karen S. Hopper
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38:16
Thank you, Mr. Chair, and thank you, Committee. And everybody got it out? Short and sweet, we hope here. bill 1000 of course is an act to amend the laws regarding the violation of
orders of protection and beyond that introduction I'd like for you to know that I have Baxter County Sheriff John Montgomery here with me this morning who can of course officially introduce himself and at that at this point I'd like for him with your permission to take the discussion further sheriff
you recognize please state your name and you're recognized
Speaker 143
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I'm John Montgomery I'm the sheriff of Baxter County just briefly I have 22 years plus experience and I'm in my fourth term as sheriff, this law, or this bill, I should say,
our local fraternal order police asked Senator Key and Representative Hopper to run this. The problem that we have when an order of protection is issued, which prohibits one party from going near their workplace, et cetera, when that order is issued, we find many, many times that the petitioner lures by either phone calls, text messages, etc., the person near them in order for them to violate that order.
Then they call law enforcement, and we get there, and under current law, we're forced to make an arrest even though we realize they've been lured. So this is really very simple. It just simply says that it's an affirmative defense if they can prove that they were lured there and the person did it with the intent of having to violate. The Coalition Against Domestic Violence, Jane and Kitta, is here, and they have no issues with this bill. So with that, I'll take any questions, but it's pretty straightforward.
Thank you, Sheriff Montgomery. Mr. Steele, you recognize for a
Representative Nate Steel
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40:14
question? Thank you, Mr. Chairman. Excuse me. I think this is a good bill, and I guess my question is just I think I was a co-sponsor, Representative Flowers, of a similar bill earlier in the session where I think Senator Flowers was the primary sponsor. And could you tell me a little bit about how this is different from that previous bill? Are you aware
Speaker 147
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of the previous bill? I am. And Senator Flowers, we looked at that bill, and it went into a much more depth. And there were some issues and concerns.
Speaker 143
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I met with Senator Flowers, and when she asked Senator Key to actually, she dropped her bill and asked to run it via co-sponsor with Senator Key on this. It's not that her bill was bad in any way. It just went into such more depth and details that made it more difficult for law enforcement. And, again, it's my understanding. I don't want to speak for the coalition, but they had a few concerns. This bill, to the best of my knowledge, we've not had any opposition at all. As you said, this is a simple bill.
Representative Nate Steel
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41:11
One could establish this defense, I guess, by showing a text message or something like that that invited them to where they are when law enforcement officers arrived.
Speaker 143
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Yeah, and there's certain rules of evidence about an affirmative defense that has to be met. It's just not automatic. Again, the burden actually gets put back on, excuse the expression, the bad guy, to prove that he was
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lured or she was lured in order to violate. So it's just an affirmative defense. Thank you, Sheriff. Motion at the proper time.
Representative Nate Steel
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41:36
Thank you, Mr. Steele. Members, any additional questions?
Seeing none, anyone in the audience who wants to speak for against Senate Bill 1000? Seeing no one, Ms. Hopper, would you like to close for your bill? We are closed. Thank you. Thank you. Mr. Steele has a motion of do pass. All in favor? That's a proper motion. Any question or discussion? All in favor of passing Senate Bill 1,000, indicate by saying aye. Aye. Opposed, no. Congratulations, Ms. Hopper. What bill would you
Representative Karen S. Hopper
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like to take on to next? Thank you, Mr. Chair, and thank you, Committee. And we would like to now take up Senate Bill 810, please.
Ms. Hopper, you're recognized for
Representative Karen S. Hopper
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42:23
Senate Bill 810. Thank you again. I
would open by saying if you – those around the table will recall yesterday when I went to the well and introduced another bill that got favorable consideration, and that was an opportunity for each of us to go back to our local law enforcement agencies with something positive that we could offer them from our actions to assist them in additional finances
that we're all obviously looking for in this day and time. Today with Senate Bill 18, I think we have yet another opportunity for an organization that we have all demonstrated throughout this session that we, too, are looking for ways to assist, and that is the Crime Lab. Correct. And so this Senate Bill 18, of course, as you can read, I'm sorry, 810, thank you, concerns the registration of sex offenders to require registration payments to be made.
And the sheriff will, with your permission, explain again
what the issue is here. Sheriff Montgomery, you're recognized. Thank
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you, Mr. Chairman. Members of the committee, really what this does is, and the best way I'm going to explain it, when a sex offender moves in from out of state, If you look at the current law that's been on the books for quite some times, it says they must pay a $250 DNA fee that goes into the DNA fund. The problem from law enforcement is when they walk in the door and we say, you need to pay us $250, they go, we don't have it.
There's nothing in the current law that gives us the mechanism to collect that $250 that's been mandated by law. So after much discussion with prosecutors and with the crime lab, And we felt like this is the simplest, easiest way. When a sex offender comes into the state, they have 90 days in which to pay that $250, which, again, is already mandated by law. If they fail to pay it within the 90 days, then law enforcement can charge them with a Class A misdemeanor under this bill.
And, again, I use the word can. Once that's done, if they don't pay, the judge then at that point can either order them to pay, They can set up payment plans, whatever the case may be, but we feel like that that gives them the opportunity. And, again, we're not raising or adding a fee. We're simply giving law enforcement a mechanism to collect this fee that's
Speaker 147
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already mandated by law. With that, I'd take any questions if I can.
Thank you, Sheriff Montgomery. One question from the chair. What do you do in cases of indigency? How is that handled?
Speaker 147
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It would be handled the same way it is now. The judge then, they can actually present their case to the judge
Speaker 143
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and say, look, I'm indigent or whatever the case may be. The judge can either at that point would have the authority to waive that or set up payment plans of some option. But what
Speaker 147
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it does, right now we have no way to even get them in front of a judge to even make that
Representative Matthew Shepherd
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45:25
decision. Mr. Shepard, you recognize for a question? Thank you, Mr. Chairman. I have just one question. And we're adding language that says it will be deposited within 90 days from the date or registration.
And I'm wondering, is the or, should that be or or of? I'm wondering if it was meant to refer to the date of registration. And if it is supposed to be or, what does the reference to the date, what does that reference? You're right. It should be
Speaker 166
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of. Okay. I just wanted to make sure we're clear on that. Very good, again. I apologize. It
should be of. Mrs. Hopper, what we're going to do, since that's a – we'll have to actually make an amendment. We don't have time for a written amendment here. What we'll do is let's hear the rest of this.
Let's see where it goes, and if we need to this afternoon, we can get a
quick amendment and fix that. Is that all
right? Mr. Walker, you recognize? MR. I'd like to, Mr. Chair, follow up on your point. Are you not punishing indigency? Well, the current law says they have to pay. I understand. But, I mean, if they don't, it's not a crime for them to be poor. Is that right? That is correct. All right. But then you give them a crime because they don't pay.
And then that nonpayment results in another fine, doesn't it, if one doesn't pay? Let me back up. It means they have to then be arrested if they don't pay, for failure to pay, because you cannot have a person go before a judge until they're arrested. Is that right?
Either arrested or cited into court, correct. All right. So they're arrested again, and then they have to pay a lawyer, or that's
a strain or drain on the public defender system. And then they have to be, in some time in the future, brought before the judge.
And when they're brought before the judge, the crime is they are poor. Is that right? And they couldn't pay
Speaker 143
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the fine. Well, Representative Walker, in answer to your question, I believe I'm answering your question. The issue is not for us to decide whether they're poor. They actually would have to present to the judge. If the judge issues them, let's say they're found guilty of another crime, and the judge orders them to pay, They have an opportunity either at that point or at some point in the future to make reference or prove that they're indigent.
And at that point, the judge has that ability to recognize that. So in this case, law enforcement under current law says we're supposed to collect it. We just can't. And so if they don't pay. So this puts them, if they don't, it puts them in front of a judge. The judge can then make a determination whether or not they're indigent or not. Have you ever
actually faced a situation like this where a person
Speaker 147
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didn't pay? Many, many times. No, or if you're talking about this particular $250, no, sir. All right. You haven't had that situation.
Now, do you know of any other crime or at least payment situation like this, a crime where if a person doesn't pay a fan, he's charged with
another crime? We get that several times every week in our county. so you punish people for
Speaker 143
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being poor no sir we cite them in front of the judge and then the judge makes the determination whether or
not they're poor or not but it's the same thing because a citation imposes or otherwise restrains their liberty and then they have to go before a judge
and that means they run the risk of failure to appear or further punishment so you would agree that's punishment wouldn't you well we're not in
Speaker 143
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the business to issue I'm not trying to avoid your question We're not in the business, and we don't issue punishment, but we do put them in front of the judge to let him or her make that decision. Thank you. Mr. Chairman, I just need to clear something I said to be clear. Sure, go ahead. We have yet, and again, when he asked me have we run into the situation, I've been in my fourth term as sheriff. We have yet to collect a single $250 from this, even though the law tells us because we have no mechanism when they say they can't pay.
From statistics that I understand from the crime lab, and it's going to vary a little bit from year to year, but if there was 100% compliance, if this bill goes into law, they would potentially generate upwards of $200,000 a year that would go into their DNA fund just by enforcing current law. Sheriff, since you've not collected anything, I don't know if you can answer
this question. I see Brad back there, and he probably didn't want to be drug-in, but he always is when we talk about a sex offender.
But I'm wondering now when someone doesn't pay, what happens? I mean, obviously, a lot of people are not paying. Are they being – Brad, come on up. I'm sorry. How – people are not paying now. I'm not exactly sure why they're not. Maybe they don't have this mechanism. But what happens with regard to an indigent person right now who can't pay or have you
Speaker 176
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experienced that? MR. Mr. Chairman, there are two fees assessed for a sex offender who is found guilty in the state of Arkansas. One is a $250 sex offender fee that goes to operate the assessment process in the sex offender registry and then a separate $250 DNA fee. The sex offender fee is designated as a fine. The DNA fee is, I think, designated as a cost. There's nothing in the statute that says that causes a crime.
I mean, in my mind, you know, and they're in front of the judge, and he's assessing that because people have been convicted in Arkansas. The judge has the ability at that time to decide if they're indigent or not able to do so. The $250 sex offender fee, which is paying for the cost of running the sex offender registry in the assessment process is not assessed on sex offenders who move here from out of state. The DNA fee is. Again, there's nothing in the law that provides a mechanism to collect it, which is what I
understand the purpose of this bill is. And I would assume that, again, if they didn't pay, you know, this would at least let him get in front of the judge and let him make that decision. But this fee that they're talking about only applies to sex offenders who are moving here who
Speaker 178
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have been convicted in other states and who are moving here, obviously they would have the option of not paying that
fee by not moving here. All right. Thank you, Mr. Cozart. Members, any questions? Any
Representative Nate Steel
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52:11
additional questions? Mr. Steele. Thank you, Mr. Chairman.
Would it be a consideration that the defendant, assuming most defendants, in my experience in rural counties anyway, most defendants in these kind of felony charges are indigent at the time of the disposition of the case. they have a public defender assigned, they've already been determined indigent. And if the case is disposed of at that time and they're indigent, and then they get to this stage where they're paying the fee and they're unable to pay the fee, would they have to prove indigency again? Is that my understanding? Does anyone? Sheriff, if you know, you mentioned that earlier they would have to show that they were indigent
at the time that they didn't pay the fee. Would they have to show this again after having already been found indigent at the time
Speaker 143
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of the disposition of the case? If I understand your question correctly, again, what we're dealing with here is those that move in from out of state. So if they were found indigent in another state and they moved here, in my opinion, yes, they would have to prove it again because, number one, time, situation, et cetera, could have changed. And, two, we have different laws in Arkansas. So the burden of proof for indigency may be different than whatever state they came from.
So I do believe, in my opinion, they would have to do it here. But now if they were found guilty here under those conditions, that falls under what Mr. Cozart was mentioning earlier with the assessment. Okay. Thank you. Thank
you, Mr. Chairman. Thank you, Mr. Hill. Mr. Walker, you recognize? Yeah. Well, obviously there is some
financial impact to this. Would you agree? You're talking about to the state or to the person or
to the? No, to the situation. I mean, obviously, you expect to collect some money, $250 per person.
There should be an impact statement telling us how much you expect to collect. Obviously, you've got a use for it. You're going to tell us where it's going to go. And then you're going to have to have an arrest system and a jail system. People will have to be incarcerated for some period of time. And then they'll have to go before the public defender. And all of that's going to have some cost. Is there an estimation now of what this financial impact will be if this law is enacted?
Speaker 143
54:22
Well, I would have to answer no. I do not know of a financial impact or what that would be for a couple of reasons, just like Mr. Cousart said. That is a choice that they make when they move into the state in the first place. In the second place, again, it is our hope that this actually causes them to pay, everyone to pay. We're giving them 90 days to do so. So if they don't have it the day they walk in to register, then they have up to 90 days to do it. If everyone complies, there would be zero impact. And I don't know of any way you would possibly know who would or wouldn't.
Ms. Hopper, Mr. Walker actually raises a point that's part of
the rules of our committee. According to House rules, any bill that imposes additional financial burdens on the corrections department or potentially impacts prison populations required to have a financial impact. I don't see anyone from the
Sentencing Commission here. Okay. Sir. Yes. I think we're talking. I'm sorry. Go ahead.
Representative Karen S. Hopper
Unverified
55:31
Go ahead. Did I interrupt? I apologize. No problem. We're talking a misdemeanor. The misdemeanor
carries up to a one-year. In the county jail. I understand. That's unfortunately our – as I understand the rule. Is anyone from Sentencing Commission here? Give me one second. thank you no problem sir do
Speaker 105
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you mind telling me why we don't but because
they're correct it's county jail not the department of correction and our rules rules relate to the Department of Correction, not to county jails. That impact would be upon the
counties, not to the state. Just a moment, Mr. Chair. Yes, sir. In all due respect, sometimes when these persons are in these situations, this may be a violation of probation. And a violation of probation can cause a person to be placed in a Department of Correction facility. Well, if this person is moving from outside of
the state, they'd be violating probation where they're coming from, I assume.
It would transfer probation here, I guess. Yes, that's
transferred here, too. So the person can
be incarcerated, especially since they've got two crimes now by moving to the state. One for failing to pay this fan, and the second one for being poor. Well, I would imagine, Mr. Walker, this
is going to be a very minimal impact, but since it is a rule, and you make a good point, we can't violate our rules. I'm looking at the folks from the Sentencing Commission.
I bet they can probably put something together for us quickly, and you've got to come back anyway to take care of your amendment, Ms. Hopper. So we'll continue this. I would imagine the impact is going to be minimal, and we'll take care of that just so we comply with the rules because, of course, if we don't comply with the rule, then that can be challenged on the floor and your bill can be defeated anyway. Any additional
Representative Gary Deffenbaugh
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57:54
questions for Ms. Hopper? Mr. Deffenbaugh? Now, if we don't pass this bill or a bill like it, then we don't have much power to collect this $250.
Speaker 143
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Is that right? Well, and again, in four terms, we've yet to collect a single $250 from anyone who's moved in because there's no mechanism to do that. Now, I can't quote every single sheriff, police department, et cetera, but I've talked to several who've never been able to collect it either. So, again, the purpose of this is to allow us a mechanism to collect a current law. In other words, this has been on the books for some time. So that's the purpose is to allow us and, at the same time, give the person moving in an opportunity 90 days in order to comply with the law.
Makes sense to me. Thanks. Any other questions from members? Seeing none, we have a few folks, at least one person signed to speak against the bill.
So I think Jeff Rosenzweig, you're here to speak against
Speaker 191
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the bill. You're recognized, Jeff. Please state your name and let us know who you're with. Jeff Rosenzweig has touched on a lot of the problems. Jeff, please state your name and let us know who you're with. Jeff Rosenzweig, lawyer here in
Speaker 194
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Arkansas Association of Criminal Defense Lawyers. Representative Walker hit on one of the major issues here, which is making it a crime to
to be indigent, to fail to pay the fee, and this is a fee. It's not a fine. It hasn't been assessed by any court. The Arkansas Supreme Court has indulged in the legal fiction that sex offender registration is civil and regulatory and not criminal and punitive, and has rejected all arguments to the contrary. If you are making it a crime to fail to pay this civil fee, that will make it even clearer
and that it is criminal and punitive rather than civil and regulatory, and thus will subject it actually a number of challenges on ex post facto grounds, other grounds, things like that I don't think you want to get into. There's an alternative way of trying to collect this fee, which is sue the person in small claims court or wherever and get a judgment, and then attempt to collect the judgment that way.
But you're running into all sorts of constitutional problems by criminalizing the failure to pay a civil fee. Thank you, Mr. Rosenzweig. Do I
get any questions for Mr. Rosenzweig? Thank
Representative Gary Deffenbaugh
Unverified
1:00:45
you. Oh, I'm sorry. Mr. Deffenbaugh has a question. So this is like no more than a fee to join a country club
Speaker 194
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or what? I don't get that. Well, I mean, I'm using their terminologies as it may be mandatory fee.
That's their terminology. This has not been assessed by any court in Arkansas. It applies because sex offender registration, among other things, does not only apply to people who are convicted of a sex crime. It also applies to people who are acquitted of a sex crime on grounds of mental disease or defect or insanity or whatever the relevant terminology of a particular state is. And because it was not assessed by an Arkansas court, it can't be a fine.
And if you criminalize the failure to pay it, you are, to be candid, giving me more ammunition for the idea that sex offender registration is criminal, is a criminal penalty and not a civil and regulatory operation. For instance, all your residence restrictions, all your other restrictions on where people
can live, where people can work are premised upon the idea that sex offender registration is civil and not criminal. If you call it criminal, then those things may go out the window. I frankly think they should, but I'm not sure that you do, and I don't think you want to open up that can of worms when I'm sure that Baxter County has a county attorney or someone who can file, who knows the way to small claims court, and they can do it before him and sue these people and try to collect it without causing an immense constitutional problem
about collecting, about criminalizing the failure to pay a civil fee. Thank you. Additional questions? Thank
you, Jeff. Anyone in the audience, anyone
else in the audience wants to speak for or against Senate Bill 810? I don't have anyone else signed up.
Seeing none, Ms. Hopper, why don't we lay your bill on the table right here.
We'll take it up with you being able to close, and then we'll be followed by a motion once we get the physical impact, if that's okay. We won't have any additional public testimony. We'll go right to you to close, and then we'll have a motion once we get the physical impact and take a vote.
Representative Karen S. Hopper
Unverified
1:03:24
Is that all right? Yes, and then I have one question. Sure. Timing of being able to take this up again, do you know? We believe
we can have the physical impact this
afternoon. We're going to have an afternoon session, so you'll be right back.
That's okay. All right. Thank you. All right. Now you're recognized for House Bill 1407. And there should be an amendment. There's an amendment already. Yeah, there's an amendment passed out. Members, this is Ms. Hopper's amendment to her own bill. Let's see if we can get this added to the bill. I have a motion by Mr. Vines to allow her to amend House Bill 1407. All in favor, aye. Opposed, no. Ms. Hopper, you're recognized to present House Bill 1407 as amended. Thank you again, Mr. Chair.
Representative Karen S. Hopper
Unverified
1:04:11
As noted, House Bill 1407, the intent here is to, of course, require certain persons to report to law enforcement knowledge that another person is in position of child pornography on a computer. Again, with your permission, I'd like to ask Sheriff Montgomery to further explain. Sheriff, you're recognized. Thank you, Mr.
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Chairman. This issue and the reason we asked for this, there's a current law that talks about if someone has an online service
and they realize that child pornography is being transmitted back and forth, it's a violation of the law. It's also a violation of federal law. The problem, and we've actually experienced it, and after talking with several law enforcement around the state, They all have the same issue. And what happens is someone brings a computer in to a repair shop to repair. In the process of repairing, they file what they believe to be child pornography on that computer. What do they do? Because under confidentiality laws, they're not supposed to disclose what is on that computer.
On the other hand, they see child pornography, and they feel like they need to. And so we have had several cases where this has happened. And in this particular case, two businesses actually came to see me after one of those and said, you know, we're stuck between a rock and a hard place. So what this bill and the intent of this bill is simply to do is to make it mandatory if they suspect child pornography, and again, we're talking about a computer repair facility. If they suspect child pornography, they have to report it to law enforcement.
It also, with the amendment, gives them some civil liability immunity so that if they do report it, it protects them in the event of a lawsuit in case they want to
go after the confidentiality issue from that. Thank
you, Sheriff. Any questions? Mr. Walker, you recognize? Thank you, Mr. Chair. The integral part of the crime is their suspicion that there's child pornography?
Speaker 143
1:06:12
If the repair person suspects child pornography,
and, again, this would be the procedure that would happen, They would notify law enforcement. Law enforcement, in order to be able to even view that, has to get a search warrant. So a search warrant would be obtained from a judge based upon the information from that repair technician or owner, whoever it might be, and then at that point they would, with a search warrant, determine whether or not that is really child pornography
or not. Well, let me understand. I'm trying to understand how you get to a charge of the person who's repairing a computer.
A person is repairing a computer, and he goes over it, and then he doesn't report anything. And then you all get the computer, and you see that maybe there was some pornography there. And the conclusion that the prosecutor or the sheriff reaches is that this person who repaired the computer should have suspected that there was pornography here and reported it. So that's then the basis for the charge? And it uses the word knowingly. So,
Speaker 143
1:07:15
in other words, and that is a burden of proof that you would have to prove that that person knowingly did not report.
It's the same principle as mandatory reporting for child abuse or a law that I believe was just passed by both houses that says that if there's a burn that they suspect that was caused by suspicious burns, that they have to report that to law enforcement. That's the whole basis from it, is that, again, it's mandatory reporting, but the key for prosecution or from law enforcement is it has to be knowingly. In other words, we have to prove that they knew it was there and failed to report.
So, but the only way you can get to a position of charging the person is by having that person turn the computer over to you in the first place. Isn't that correct? That's correct. Well, isn't by turning the computer over to you sufficient to exonerate the person, or at least to keep
the person from being charged? In my opinion, yes, sir. So what the person has done is turned the computer over to you and says, I don't know what's in it, but doesn't
that also perhaps violate search and seizure laws? You have no search warrant to get this computer.
Well, we can't take that computer without a
Speaker 154
1:08:35
search warrant. But this doesn't say anything here about a search warrant. But that's rules of evidence and procedure.
Well, all right. With all due respect. So you expect this man to, in effect, become an agent of the police and turn over to you whatever he has in his possession that you could not get
Speaker 143
1:08:55
without a search warrant, right? Representative Walker, I don't believe, if I understood what your question is,
he or she cannot turn that over to us without
a search warrant. Well, let me understand that. Now, you know that the rules under the Fourth Amendment are pretty straight, and you have to have probable cause and approval by a judge or magistrate before you can get a search warrant. Correct. Now, in this process, you circumvent the search warrant process, and you impose a cram upon a person who repairs or is in possession of a computer
that may have some pornography on it and you hold that person to a standard of having to review that computer and if something on there, once he turns it over to you, you charge him at that
Speaker 154
1:09:49
time, right? No, sir. Representative Walton, I'm going
Speaker 143
1:09:52
to say this first. The intent of the bill is actually to protect the computer repair person. It protects them because under confidentiality laws, they are between a rock and a hard place. if they find what they believe to be child, and again, it's not just pornography.
This is strictly child pornography. And so what this does is it protects that computer repair person to say, look, there's a law that says you have to report, just like in the case of child abuse, et cetera, and there's also under the amendment that was added, it gives you some civil liability for doing so. Even if they report it, again, we have to obtain a search warrant, so there has to be sufficient reason or probable cause in order for a judge to even give us a search warrant. Once we obtain it, then we're able to look in that.
We still have to have the child pornography. The purpose in the penalty, again, we're
Speaker 204
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just adding to an existing law, is it actually protects the repair person. Well,
I understand it, but doesn't it open up the possibility that you may
get information that you would not otherwise be able to obtain by search warrant. And then when the repair person turns my computer over to you and I have nothing on there, you find that maybe I haven't filed my taxes in the last year.
And then you use that as a basis for prosecuting, say, me, but then you're saying I can't sue the person for turning something over to you that should not have been turned over to you in the first place
because of the absence of a warrant. Well, in
Speaker 154
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the case of the search warrant, Again, the search warrant normally is going to limit the scope of what we
Speaker 143
1:11:31
can search, just like in a home or anything else. In fact, if we search a home, the rules are so strict under the rules of evidence. Even if we did a search warrant on a home, and let's just say in the process of that we seized your computer,
we have to obtain a second search warrant just to go into your computer. So the rules of evidence are pretty strict on that. And so the scope of that search warrant would limit what we can and can't look at, depending on what
the judge signed. All right. Well, of course, I guess I asked too many questions, but I don't
see that. I mean, is this a problem of great significance? I know occasionally that happens. But how frequently does it happen? Ten times out of a million? I mean, you know, I wish I could get cancer because cancer happens more than ten times out of a million.
I mean, you can't just punish everything. Well, again, the intent here is not to punish.
It's to protect. All right. Thank you. Sheriff, I kind of want to follow up on that because I've got a little concern about making the computer repair person a law enforcement official. And you
said how is he protected here? How do you presume that the computer repair operator is protected by your statute?
Speaker 143
1:12:40
Okay. Opposed, Bill. Let me give you just a quick scenario. A person brings in a computer, and the computer repair person,
in the process of repairing this computer discovers what he or she believes may be child pornography. So at that point, under this law, they would contact law enforcement and say, I believe I found child pornography on this computer. Law enforcement would then take their statement, would actually get an affidavit that that person would have to sign to of why he or she believed that they had found child pornography. A search warrant would be obtained. Law enforcement then would be able to go into that computer and see if child pornography exists. Sometimes it's not.
We've had situations where it wasn't child pornography. It was just, you know, someone that looked young but was actually not. But if, in fact, there is pornography, child pornography, then that person ultimately gets arrested. The purpose in this is now it protects them because under confidentiality they shouldn't have called us in the first place. This protects them so that if they do call us and they're arrested, that person can't come back and sue the computer repair person for revealing that child pornography that was on that computer to start with.
Well, it appears that you're creating a duty on the computer repair person to search the computer for child pornography. I mean, where do we stop? I just got my brakes fixed at the brake shop the other day. By chance, if I had a dime bag of marijuana in my car, would he need to call the police and say, I think there's marijuana in his car because I was fixing his brakes? I mean, it
seems a stretch to make the computer repair person part of law
Speaker 143
1:14:13
enforcement now. Well, Mr. Chairman, again, the intent is to make it a mandatory reporting, just like you do,
and child abuse, just like you do, and those burned situations that was passed out recently. It's a mandatory type reporting. So the main fact is if that computer repair person didn't report it and send it back,
Speaker 147
1:14:33
we would never know. I mean, that's a fact. What
happens when, I take that, but what happens when you find out some other way and you find out that his computer was at my repair shop and I didn't report it?
Now, am I in trouble because I didn't report it
Speaker 143
1:14:52
after you found out that? It goes back to the statute, Mr. Chairman, of knowingly, and that is a burden of proof that would be very difficult for law
enforcement or prosecution to prove. I would agree. I would just be real concerned about even charging that guy because knowingly is going to have to be proved. A prosecutor could bring that case saying, I think you knew this, and I can charge you, so now my computer repair business, I'm subject to being charged with a crime because the prosecutor thinks I knew that there was child pornography on that computer,
and I didn't report it. I'm just real concerned about extending liability
Speaker 143
1:15:25
that far. Well, in this case, what you described, there'd be an affidavit done that not only would be reviewed by the prosecutor but also have to be signed off by a judge before that arrest could be made. So I think, again, knowingly is a very difficult, I mean, it's an element that's very difficult, but it's there on purpose. Again, so it's if the repair person missed it, if, you know, whatever the case may be, we're going to have to prove that they knew. The purpose, again, is not to arrest the computer guy.
That's not the purpose, although I realize that's in there because
that's in current law. Well, it's in current law, but it relates to an Internet service provider and not to a computer repair person. You're extending the same obligation to an Internet service provider to a repair person. I might say an Internet service provider would be a different kind of animal because that person is in the business of, you know, they're providing that service, they're monitoring. But that's different than the person who's fixing my computer. I see a
Speaker 146
1:16:21
big difference between those two people. And I understand your concern, Mr. Chairman.
Speaker 154
1:16:25
Again, the word knowingly, I think, I
believe, covers that. Mr. Walker, we've got someone else on the list right now. Mr. Steele is next, and I think you're
Representative Nate Steel
Unverified
1:16:38
next, Mr. Walker, after Mr. Steele. Thank you, Mr. Chairman. Outside of this Internet service provider exception, are you aware of any mandated reporters that are not licensed professionals of some kind? In my experience, they tend to be counselors or doctors or something like that. Are you aware of any other mandated reporters that might be part-time,
like a part-time computer repairman or anything like that?
Speaker 143
1:17:02
I'm not in this particular case. Now, if you broaden that scope, because obviously you're talking about teachers and law enforcement and doctors and nurses, I mean, if you're just talking about general mandating reporting, in this particular case, I'm not aware if you're concerning about this
Representative Nate Steel
Unverified
1:17:17
repair. Well, I guess my concern is for the mechanic who part-time might repair a computer every once in a while. Well, under this, although he's not a professional in that field,
but he would be a mandated reporter under this statute. Is that correct? If he
Speaker 143
1:17:38
engages in the business of repairing or maintaining a computer. So if he has a business, then I think he or she would be under that. But, again, going back, they have to knowingly – And I know I keep using that word, but I think that's a very important term there because it's a burden of proof that's
Speaker 147
1:17:58
very high that has to be met by the prosecutor in this case.
Representative Nate Steel
Unverified
1:18:03
My next question is that this only applies to child pornography, correct? If a computer repairman found pictures of a dead body, a dead adult body, or any other kind of evidence of a crime, he wouldn't have any duty to report that? No, sir. Not under this law, no, sir. Well, you were concerned also about this repairman-client privilege. There might be some kind of violation of some kind of privilege between a computer repairman and a client. And I'm unaware of a privilege like that, but to the extent that there is a confidentiality between a computer repairman and a client,
could we not fix this issue by repealing that privilege as it pertains to child pornography rather than criminalizing what somebody might find out? Well, and again, I'm not an attorney,
Speaker 154
1:18:53
so I'm not sure I could answer that directly. I do know that, again, under current law, when we're talking about the Internet service providers, that is current law. In other words, it's a crime, if
Speaker 143
1:19:05
you will, for not reporting. The same thing applies to them. They have to knowingly, just because it's happening, doesn't mean that they're guilty of that crime.
So in this particular case, and I know after this bill was filed just two days ago, So ironically, I had one of the largest repair services in our area actually paid me a visit to complain about this exact problem, and I pulled this particular bill out and said we're working on this and was very thankful because of the issue being of the liability issue, that there was that confidentiality that they believe is in place to prohibit them from reporting what's on that computer.
Representative Nate Steel
Unverified
1:19:46
Okay. And you mentioned one more question from I, Mr. Chairman. You mentioned that
this statute would somehow provide immunity for a violation of that. Is that anywhere in the statute or is that referenced somewhere else? The amendment that was passed out. Okay. Thank you. And I really respect what you're trying to do, and I've got some of the similar reservations that our chairman does, and I don't have my mind made up, but I appreciate your effort in trying to curb child pornography, certainly. Thank you, Mr. Chairman. Thank
you. Mr. Steele, Mr. Walker, you recognize?
Yes. I'm concerned because what you may have is a situation where someone cooperates with you out of an abundance of caution, and you then, upon looking at a person's computer, you go through it and you say, judge i found all kind of good stuff in here and i don't have a search warrant for it but i need you now to give me a search warrant so i can go and discover what i've already discovered that opens
Speaker 150
1:20:51
up the possibility of collusion between you and the judge doesn't it i don't know of any judge that would do that but first
of all you wouldn't have to say i've already got the information you but but by presenting it you would have the information
and you wouldn't be telling the judge and the judge probably looked the other way i can only speak for
Speaker 147
1:21:10
the judges in our area our judges would not do that i mean again we would have to have probable cause in order to get that search warrant
so um but you got the evidence and you've already made the search so you're not going
to go and tell the judge i've already made the search so i need a warrant you didn't have a warrant to begin with when you
made the search and then you go to the judge and you try to get a search warrant? Well, sir, I couldn't search the computer without a search warrant to start with. In other words, you couldn't even look at the computer? No, sir. So when the man brings it to you and he says, this is what I found, you don't look at it? No,
Speaker 68
1:21:49
sir. Not without a search warrant. The rules of evidence are
very, very clear in that. Okay. Let me follow. So the repair
person brings the computer to you. You don't look at it. You then go to the judge and say, judge, based on what this repairman said, this is my probable cause for a search warrant. Is that what you're going to try to do? That's correct. So, I mean, in effect, the repairman has now just become a law enforcement agent to help
Speaker 143
1:22:16
you search for, to give you a reasonable basis for that search warrant. Well, we use citizen's complaints or, I shouldn't say complaints, citizen's information on a fairly regular basis to obtain affidavits for either search warrants or arrest warrants,
et cetera, based on that information. So to me, this is no different. you've got a citizen that's providing you with information, it might not even have to be a repair person. I mean, it could be somebody that said, I was over there last night. I saw, you know, this person, you know, and, again, if their statement is reliable and the judge would accept that, that could be the basis in itself for a search warrant. But back to just to clear up, again, when that computer, we are not allowed to search, look in any way at that computer without a search warrant. The rules of evidence are very, very clear.
Okay. Thank you, Sheriff. Members, any additional questions? Seeing none, I don't have anyone in the audience signed up, but anyone would like to speak for or against House Bill 1407? Seeing no one,
Representative Karen S. Hopper
Unverified
1:23:15
Ms. Hopper, would you like to close for your bill? Thank you, Mr. Chair. Thank you, committee. And we appreciate the line of questioning that you've had, and we think
Representative Randy Stewart
Unverified
1:23:26
we've been very thorough, and we would ask for
Speaker 157
1:23:30
a good vote. Thank you. Thank you, Ms. Hopper.
What's the pleasure of the committee? Mr. Eubanks? The motion do pass by Mr. Eubanks.
All in favor of passing House Bill – proper motion, any question or discussion? All in favor of passing House Bill 1407 as amended, indicate by saying aye. Opposed, no. No. I believe the no's have it. Mrs. Hopper, that bill fails. Don't forget we've got your other bill laid on the table. We'll take it up when we get the impact study.
I'll see you this afternoon. All right, thank you. Mr. Pritchard, you've been waiting patiently. I know you're another committee. Appreciate you. You've got a simple amendment that we ask you to put on this bill, I believe. You're recognized for that. Thank you, Mr. Chairman.
Speaker 217
1:24:20
That's Senate Bill 707. I think they're handing out the
amendment now. Members, this is Mr. Pritchard's own amendment that I think we asked him to put on. Actually, it's Mr. Rice's amendment to Mr. Pritchard's bill. Mr. Rice has a motion to allow the adoption of this amendment.
All in favor indicate by saying aye. Aye. Opposed, no. Senator, you're recognized to
Speaker 192
1:24:43
present Senate Bill 707 as amended. Thank you, Mr. Chairman. Members, this is the involuntary commitment law that
Speaker 217
1:24:49
we discussed in detail the other day. And I think three members had some concerns, and I hope I've addressed all those. One was the amendment we put on there to change on page two the shall to a may in two different places. I think that took care of that.
Also, I think Representative Walker asked me about a fiscal impact statement, and although it wasn't required, I thought it was appropriate that I got that for him. And there is, from Richard Wilson, there's no impact of the state treasury screening will be accomplished. with existing personnel and the other I think Representative Walker also had a question about the five-day waiting period and I believe that Jim Clark talked to him and hopefully he's okay with that with that I'll be happy to take
any questions thank you Senator Pritchard for doing that any questions
from the audit from the members seeing none anyone the artists will speak for against Senate bill 707 seeing no one I have a motion of due pass on Senate Bill 707 as amended by Representative Wilkins. Any question or discussion? Seeing that, all in favor of passing Senate Bill 707 as amended, indicate by saying aye. Aye. Opposed, no. Congratulations, Senator, and thank you for your patience. Thank you, and thank you, committee. And
Speaker 192
1:26:08
this reminded me when I was on public health down here when I questioned everything to death.
Some say you still do, Senator. It earned me the reputation and the nickname of Representative Soarhead. Members, Representative Stewart has
Senate House Bill 1631. He just needs to concur in the Senate Amendment. We're going to take him real quick, if that's okay. Representative Stewart, you're recognized for 1631. Thank you,
Representative Randy Stewart
Unverified
1:26:41
Mr. Chair. This came out of the Senate Judiciary.
They wanted to change two words. On page one, on line 31, we moved a statement back to an affidavit, as in the original language. On the last page, we took out a statement and put notarized back in.
Thank you. Thank you, Representative Stewart. Any questions for Representative Stewart? Seeing none, anyone in the audience
who wants to speak for or against House Bill 1631? Seeing none, I have a motion by Representative Steele to concur in the Senate Amendment on
House Bill 1631. All in favor indicate by saying aye. Aye. Opposed, no. Congratulations. Ms. Stewart, I didn't let you close, but I figured you were closed. I apologize. I'm closed. Thank you. And thank you, committee. Members, I will let you know that lunch is in the office. If you'd like to grab lunch and we're going to keep working, but feel free to grab lunch. We're going to work right up until we've got to go in session about 1 o'clock today. So we'll work up until about 1245.
Agenda
Call to Order
HB1958
HB1701
SB1000
SB810
HB1407
SB707
HB1631
Documents
No documents posted.
Speakers
Representative Darrin Williams Chair
Unverified
Representative Bryan B. King
Unverified
Speaker 9
Speaker 11
Representative John W. Walker Chair
Unverified
Speaker 43
Representative Terry Rice
Unverified
Speaker 24
Speaker 21
Mike Rose
Unverified
Paul Calvert
Unverified
Speaker 85
Representative Mary L. Slinkard
Unverified
Representative Nate Steel
Unverified
Speaker 126
Speaker 127
Representative Jeremy Gillam
Unverified
Representative Karen S. Hopper
Unverified
Speaker 143
Speaker 147
Speaker 154
Representative Matthew Shepherd
Unverified
Speaker 166
Speaker 176
Speaker 178
Speaker 105
Representative Gary Deffenbaugh
Unverified
Speaker 191
Speaker 194
Speaker 204
Speaker 146
Speaker 150
Speaker 68
Representative Randy Stewart
Unverified
Speaker 157
Speaker 217
Speaker 192