Alaska State Fair Brou-hahah

As many of us are aware, a Mr. Hill was arrested at the State Fair. Here's some links with more information (and video!):

• ADN Political Blog
• ADN Article
• Frontiersman
  

First off, I'll say that I don't care about Mr. Hill's politics. They are irrelevant for my points. I think that this incident is educational for two things: arrest powers of private citizens in Alaska, and Alaska firearms laws on private property.

ARREST POWERS

Alaska laws recognize two broad classes of individuals authorized to detain others: peace officers and private individuals. If you aren't a peace officer, then you fall into the latter category. All those dudes wearing security shirts enjoy no special authority, other than perhaps an insurance policy from their employer. Don't believe me; reference AS 12.25.030. Alaska law defines an arrest as, "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."

Under this statute, a private person has the following arrest powers:

(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.

Moreover, per AS 12.25.050, an arrest is defined as:

"An arrest is made by the actual restraint of a person or by a person's submission to the custody of the person making the arrest."

That is, you don't have to actually cuff someone to arrest them. All you have to do is require them to submit to your custody, which could be done through purely verbal means; for example, by saying "Sir, you are required to stay here and are not free to leave."

Moreover, per AS 12.25.070, "A peace officer or private person may not subject a person arrested to greater restraint than is necessary and proper for the arrest and detention of the person."

In this case, I feel that the private security individuals were acting under AS 12.25.030.a.1. Mr. Hill was likely committing the crime of criminal trespass. AS 11.46.330 defines trespass as:

a) A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully

(1) in or upon premises; or

(2) in a propelled vehicle.

(b) Criminal trespass in the second degree is a class B misdemeanor.

Because the fair grounds are private property, if we assume that Mr. Hill "failed to leave premises or a propelled vehicle that is open to the public after being lawfully directed to do so personally by the person in charge" (AS 11.46.350) then he was trespassing.

The problem with arresting someone under AS 12.25.030 is that when acting as a private citizen you have no protection against a lawsuit for improper actions. Say Mr. Hill manages to get the charges dismissed, is not convicted, or otherwise avoids a criminal record for this incident. The private guards that arrested him would no longer be protected by AS 12.25.030 because that provision only gives you authority to arrest someone if a felony is involved or if you witness a crime. If it turns out that there is no crime then you are up the "False Arrest Lawsuit" creek without a paddle. I hope that you have good insurance that will protect you, because a civil lawsuit could clean you out. In Zok v. Alaska, the AK Supreme Court ruled that in the case of unlawful arrest, zero damages is not appropriate, so expect to be hit for something.

Moreoever, all issues of false arrest aside, arresting someone through means of physical force means that you might throw the first punch or use the first physical force. That can cloud the issue if you are later required to elevate your level of force. For example, say a bouncer tries to physically evict an unruly bar patron; the bar patron then produces a knife; the bouncer then shoots the bar patron. Had the bouncer relied on non-physical coercion then he would have a perfect case of self defense. However, because he chose to escalate the encounter, he could be liable for assault charges. Moreoever, the unruly patron (if he survives) or his family/estate can claim all manner of things to endanger the bouncer's story. They could claim "The bouncer said he would beat me up outside," or "The bouncer showed me his gun and said he'd kill me; I was afraid for my life." If you choose, as a private citizen, to escalate an encounter then you lose your mantle of protection as an aggrieved victim utilizing self defense. That is a significant risk for private security personnel who are paid, in part, to intervene and potentially esclate situations through intimidation if not outright force.

I did note that the YouTube video highlights the security guard at the fair appearing to handle a weapon when the state trooper showed up. That is a perfect example of potentially escalating a situation. In a tense situation if you touch your weapon it could be construed as Assault. Moreover, in the legal calculus of "Ability, Opportunity, Jeopardy," handling your weapon just allowed any reasonable observer to check the ability and possibly opportunity squares. If you also give a reasonable observer the impression that you are prepared to escalate to the use of deadly force to enforce your will on the situation then you may legally become the aggressor. In Alaska, you have a duty to retreat in many situations when in a public place; choosing instead to handle your weapon and escalate a situation is at best irresponsible and at worst may get you killed by someone else acting in self defense.

FIREARMS ON PRIVATE PROPERTY

Criminal Trespass. Private property owners retain significant rights. In Alaska, you may always resort to AS 11.46.330, Criminal Trespass, in order to ask anyone you want to leave your property. I'm sure that certain limited, protected classes might not be legit to ask to leave; you'll likely run afoul of some federal antidiscrimination law for throwing people of a certain ethnicity or national origin or religion off of your property. But in general, if you don't want someone on your property, and you ask them to leave, then they must or they will be guilty of criminal trespass. Moreoever, if they are carrying, they are also guilty of MIW 3, which is a felony.

Not illegal to carry, even if posted. Alaska is not like Texas where individuals carrying firearms must respect posted private property. In Texas a "30-06" sign conforming to state code on private property makes carrying an unauthorized weapon there vereboten and criminal. Because the state has pre-emption, similar signs -- in general -- on public buildings are also meaningless. There are exceptions for certain conditions, but a great example of a meaningless "no guns" sign is the one that used to be at Loussac Library.

Permission in Residences. In addition to Criminal Trespass, AK 11.61.220 states:

(a) A person commits the crime of misconduct involving weapons in the fifth degree if the person

(1) is 21 years of age or older and knowingly possesses a deadly weapon, other than an ordinary pocket knife or a defensive weapon...

(B) that is concealed on the person within the residence of another person unless the person has first obtained the express permission of an adult residing there to bring a concealed deadly weapon within the residence;

So, if entering a private residence while carrying, you must first gain permission, whether it is signed or not. There is no similar provision for businesses or other private property open to the public. It only applies to residences.

Alaska State Fair. Nowhere on the AK State Fair website, in their daily schedule, or in the informational pamphlet does it state that firearms are prohibited. There may be a sign at the gate but I didn't notice it. Even if it is posted, as the fair grounds are not a "residence" you may ignore the sign if carrying and you are not in violation of state law. However, if asked to leave, you must immediately do so or else you may be arrested for trespass and MIW 3.

BOTTOM LINE FOR LAWFUL GUN OWNERS

The bottom line is that you must respect private property in two primary ways while carrying:

• Must gain permission before entering a residence armed
• Must leave if asked to do so or it is a felony
  

That means that if you are properly concealing a firearm then you should be good to go at the fair grounds; concealed means concealed, which means that nobody should be able to spot your weapon and tell you to leave. If private security demands that you submit to a frisk or metal detector then it is up to you whether or not you want to comply, knowing that if your weapon is found you need to leave.

Moreover, as a lawful gun owner, you need to understand your authority -- or lack thereof -- to arrest someone else. You expose yourself to significant civil and potentially criminal liability if you unlawfully arrest someone. You must be absolutely certain that a crime -- preferably a felony -- was committed before even considering detaining someone. I would not arrest someone, personally, unless I saw them commit a felony and/or feared that they would pose an imminent and specific threat of grave bodily injury or death to another innocent bystander. Private Security agents do not enjoy any specific authority beyond what Joe Citizen posesses.

MY $0.02

I think that the AK State Fair security should have asked the guy to leave. When he refused to do so, they should have called the cops and monitored the situation. Allow the cops to arrest him for criminal trespass and remove him. I was a rent-a-cop for awhile and I understood very clearly that my authority to detain someone or arrest them was limited and that I had few or no legal protections if anything was not as it seemed or if the situation escalated.

I am unsure if Hill was carrying a firearm. While the Frontiersman reports that he was, if he was, he'd be charged with MIW3, which is a felony. I think it is more likely that the firearm was in his vehicle or something. In this case, I am not terribly opposed to the police temporarily securing the firearm for safe keeping, just as I would expect them to secure any other valuable and theft prone item such as jewelry, automobile keys, etc when taking someone into custody. I would also expect the firearm to be released into Mr. Hill's possession -- or a responsible designee, such as his attorney -- at the first opportunity, or they need to charge him with a weapons crime in order to keep it as evidence.

I think that Mr. Hill was probably trespassing. Thus some form of arrest was likely justified. I think the biggest question is: was minimum force utilized as required by AK state law? As I discuss above, I think that the best course of action would have been for the private security to notify the state troopers and let them deal with it once it became clear that physical force was needed to remove Mr. Hill from the premises.