 Falco, good morning. Thank you for joining us. Good morning and thank you for having me for the record. My name is Falco Shilling and I'm the advocacy director for the ACLU of Vermont and I'm happy to be coming for you today to talk about H-145, the use of force law. I know that every witness on this bill so far is that they think their testimony is gonna be brief and that hasn't really played out. So I might be continuing that trend. We don't have a whole lot to add on the bill at this point in time. We are fine with the bill as it passed out of the house and are not looking for any language changes at this point to the bill itself, spent a considerable amount of time working through this on the house side. In relation to the requests from law enforcement for language changes, we are not supportive of those proposals mostly because we think that they are unnecessary and that they are already covered within the existing language of the bill and do think that they could have unintended consequences that might end up weakening the standards. I'm happy to talk about that more, but in short, we're asking that the committee not make those additions to language but it'll also be open to seeing any new proposed language. I know there's been some discussed in the committee this morning as possible language changes but we'll be happy to weigh in on those proposals. And in relation to some of the other issues that have been brought up by the committee this morning regarding the use of chokeholds and the training around chokeholds, we would concur with what you've heard from the commissioner about the belief that that training is unnecessary and could be, I think it would be sending even more of a mixed message to actually be training on a prohibited restraint or chokehold, especially when they are gonna be able to recognize that restraint and understand what it is. So we would not propose changing that language to allow for training. And then finally, I also want to say that we'd be interested in some of the discussion that was brought up at the beginning of this meeting in looking at the scope of the applicability of this statute and what government workers this applies to. And if there's an interest in expanding that scope, we'd be interested in that discussion. So those are just kind of my high level comments but I'd be happy to answer any questions folks have on the bill at this time. Well, I want to be clear about that last point you made. My concern is that workers at the Department of Corrections guards, for example, would be under a different standard where they're not allowed to use any restraint for any excuse. We already know that several staff members that DCF may be charged with criminal offenses arising out of some restraints at Woodside. There was an investigation on going about that. And then we have DMH that sometimes finds that necessary to restrain people. And I just don't want to have two standards of restraint. One for police that's looser, I might use that term. And what somebody at DOC, particularly some of the people who let's face it are in custody of the Department of Corrections are very dangerous and their lives may be at stake. And so, no, I think it's important that we recognize it's not just law enforcement. Yeah, and one thing I'd like to speak to about the chokehold because this has been a discussion as this bill has evolved is what is this bill doing? Is it making it easier for law enforcement to use a chokehold? And I've seen that as one of the criticisms of this bill. And as we read it, I don't believe that this is actually making it easier for law enforcement to use chokeholds as a prohibited restraint. I think this is clarifying what was existing in the law before, specifically that if someone is in a life or death situation and they're having to grapple for their life, then it would be acceptable for them to use that type of maneuver in that situation or they might otherwise be justified to use a firearm or something like that. But that was a little unclear in how the statute was written last year. It's some cross references and this is a way to make that more explicit and something that we understand that law enforcement officers have the right to defend their own lives in situations where deadly force is justified. So we don't see this as making it easier for law enforcement to use chokeholds, but do you think that this is a clarification? Could I ask Falco a question? Yes, you may. Senator White. Thank you, thank you, Senator Sears. So Falco, the comments by Julio Thompson about the kind of unconditional and without exception, know the language about leaving out without hindsight. I mean, he had two comments on both of those and by putting in the two standards from Graham and leaving out the third, are we setting a new standard here by leaving out that without the benefit of hindsight since that is also in the Graham decision? So I would say that this is going above and beyond Graham in the ways that we heard, but I would also say that if you look at the language in B sub one, it refers to the totality of the circumstances in that, which is in the sub six right above that, which take into account the fact that the law enforcement officer, it's the conduct and decisions of law enforcement officer leading up to the use of force and all facts known to law enforcement officer at the time. So to me, what that says is that that takes into account the idea that there cannot be hindsight. There's not information coming in after the fact. My concern with adding without the benefit of hindsight into sub one is after the totality of the circumstances, that that could be viewed as trying to limit the inquiry of the court into the moments superseding the use of force and limiting the inquiry into the events that might have led up to that use of force because one of the big things that folks talked about on the house side and one of the impetus behind this bill is mind to make sure that the totality of circumstances is taking into account. If there's actions that unnecessarily escalate a situation to the point where force might become necessary that that be taken into account when considering whether that force was in fact necessary. So I understand that the proposal that's being put forward is a belt and suspenders approach but is unnecessary and could have unintended consequences. And so that's why we are not supportive of that addition. All right, thank you. I appreciate. If we look at section four, that's another area that it seems to us needs further clarification particularly burglary and robbery. Use of violence, forceful or violent suppression. Oh. This is on page five version section 4.305. 13 on our page, ours. Yeah, seven on, I've got two copies, one that has passed the house and one that with the Zoros. Yeah. Anyway, was there any, did you have any discussion about that particular section? I didn't, I mean we haven't, that was not actually an issue that came up in depth in the house in terms of that, those particular robbery and burglary concerns but I do think that was a good catch by the committee and something that's worth looking at if we're amending the justifiable homicide statute. It makes sense to amend it to make sure that if people are using deadly force that is necessary and proportional in the same way that it is throughout the rest of the statute. So I would, I would, you know, I think it's worth looking at the specifics of those crimes, how they are laid out in statute, what the elements are. You know, I think more of my understanding some of these elements would be from the common law, not statute, but I think you heard that there might be good reasons to maybe be more specific there, include some offenses and exclude others. So if that's an inquiry that committee wants to go into, happy to be part of that, but that was, I think that was a good catch by the committee. Thank you. Anything further? No, that's, I think all we have to add at this point in time, but happy to be as part of the discussion and chime in if there's any proposed language changes the committee is considering in the future. Okay, great. I see that James Pepper's joined us. So I'm going to ask James and John Campbell to join us. James, congratulations on your new, well, it depends on, he doesn't have, it depends on Senate confirmation, obviously. So you guys can always do me a favor and maybe not confirm him, but I think you'd be hard pressed not to, let's just say that. It doesn't make any difference if we confirm or not. He would still serve. That's our confirmation process. Don't tempt us, John, because we already know if he's gone, we have to deal directly with you. Come on, Joe, Senator, geez. Actually, Pepper, thanks for dropping by. You are on the agenda, but when actually are you leaving or have you already left? I am working on a transition with John and waiting on Senate confirmation. And I assume that that process, just given the timeframe, this will happen relatively quickly. I'm hopeful and just really excited about it. And I am very thankful to this committee in particular for all the work you've done over close to a decade on the cannabis issue and making it more equitable and working on expungement and all the related issues that are gonna be a huge benefit for Vermont as we walk into this new world. So it's been just a real honor to be able to come before, to work with you and come before the committee. And I just can't thank you enough for helping me along the way. So thank you very much. Thank you. Your work, both as a member of the Shumland administration on this issue is well deserved in my opinion. I'm not sure what committee it goes to. Shouldn't go to government off, should come to judiciary issues and be dealing with everything else. But government ops will probably steal your, we probably will. I don't know why, but I do want, I want to thank you for working with us on so many issues. And I particularly want to thank you for the work on raise the age and dealing with young adults and the criminal justice system here. You really did a terrific job for us there. Your work on the sentencing commission and other areas for the right to invest. Well, you've shown real leadership on those issues and I'm glad that I could be a part of it in any small way, honestly. Thank you. But I will turn things over to the capable hands of John Campbell who is my mentor and my real friend and family member as far as I'm concerned. Thank you. And again, congratulations. I don't know if any members of the committee have any more comments for James Pepper before we say goodbye on this from all. Sure, we'll see him in some cases. Yeah, we'll be talking to you. Great. I'm sure we will. I mean, for years you've been there, we're not going to just let you go off into the cannabis world. Off into the cannabis world. Mr. Chair, can I say something? Yeah, please. Most people don't realize all of the work that Pepper has done, not just for actually for the department, but he also volunteered, as you mentioned on the Sentencing Commission, that was not an appointment. He did that voluntarily and he's gone with the racial disparities group. He's done incredible work with them and those were all evening meetings. Pepper, he didn't know, there's no such thing as an eight hour day in his day. He's working constantly. He was, it is my right hand, right arm. And I'll tell you, I don't know, he will not be easily replaced at all. And I just think that the state is absolutely fortunate to have someone of his caliber and his integrity and honesty, compassion to lead this new board. I just think we as a state are really fortunate. So I'm going to miss him and he was, it's on to me. So hopefully he'll be close by in his office. Good. Thank you, John. Pepper, thank you for everything. You are going to be very, very busy for a little while here. So just give those little boys a big hug. I will. Thank you all. Thank you. All right, the next issue, the next witness is John Campbell on the FH 145 use of force. Thank you, Mr. Chair. John Campbell, Executive Director of State's Tourism Sheriff's and as I, as you've already pointed out, I'm filling in for Pepper because we have decided that it probably would not be right to have him continue to testify on behalf of the state's attorneys. We just don't want anyone thinking that there's an appearance of impropriety or are him to be subject to any question of bias in any other cases. So we felt that it would be probably more prudent for me to jump back into this role. And I apologize for not being here a little earlier. I have, as you know, I'm also and part of the team that is prosecuting a gentleman, Mr. Forte, who is a Benedictine County case. And currently in hearings in Bennington County and I was able to slip away for right now. All over the front page of the Bennington banner this morning. Was it? Okay. So you're familiar? Yes, it is. The four guys in bed and you're trying to prosecute. I'm not gonna make comments on that. Anyway, so I'm not exactly, I hope I'm not gonna go over what other people have. In fact, it's gonna be fairly, I know there were two specific parts of this that were in question one, had to deal with the standard. And I believe law enforcement community felt that it was necessary to add a language regarding the look back on this and hindsight. And here's the way we feel, at least the way I feel. This is basically deals with what's called a grandstand. I don't know if any other witnesses have discussed that with you all. Julio did. Oh, okay, good. So currently we have a standard that we call the grant standard that is followed. This legislation, I think if you look at it, just as in a vacuum, you'd say, it really don't need that extra language. It's not really doing anything. It's that's not already said. However, what concerns me is because we've added or you are contemplating to add language to this section, that being the two parts of necessity and proportionality, that it could be argued, I think, that you're setting up a new standard to be viewed. And I think the grant standard's one that's been recognized around the country. And it's not just dealing with use of force issues, but also dealing with searches and other aspects of the law. So if you go ahead and add new elements, then I think that a defense counsel or court could look and say that you're establishing a new standard and therefore hindsight may creep in. So I would, not caution, but I would suggest and urge the committee to look closely at adding some type of language, whether it be language that law enforcement provided, which I don't have in front of me, or something akin, but just to establish the fact that we are still sticking with the grant standard, even though you have expanded the two areas. That's that one. The other issue I believe I had to do with the feasibility issue of knowledge of a law enforcement officer of certain matters, whether it be whether a defendant or subject has mental health issues or physical health issues. To me, it seems more on a civil side that I'd be concerned about that. And I do know that currently municipalities around the country are having problems with insurance coverage, specifically what's happening. And in many cases, rightfully so, there are some people that should not be police officers. And I've already testified in that here before. However, it is putting, I think that it is putting a large burden on some of the cities and towns. So I think I would urge you maybe to talk to somebody on the civil side at the AG's office and ask them whether the adding feasibility language would improve or help clarify this matter because you have actions that I think can be taken under 1983 and federal civil rights actions. And I think it's probably, not probably, it is really important to be as clear as possible as to what you believe that the law enforcement officer, what obligations he has and whether he has the capability of actually understanding the full extent of things such as different mental health conditions, different medical conditions. There's a myriad of issues that if you say physical or medical, what does that mean? Does it mean that they have to know how all of these conditions manifest themselves? What kind of issues might come up that would put the subject in more danger if he's touched or she's apprehended in certain ways? So I think it would be proven to have someone maybe from the AG civil division take a look at that as well. All right, good. Bryn, could you get us a copy of the posting in the Graham decision? Yep. So we can fully understand it, or try to understand it, I shouldn't say we would. It's kind of seem to keep coming up. Are there questions for John Campbell? Okay, I'll go back to Bennington. Drive carefully. Thanks. Are you physically going to Bennington? No, we're in actually my offices and here in Montpelier being, we have two of our former Supreme Court justices who were also there in each one room and myself and Linda. Actually, it's actually a fascinating case. It's a child sexual abuse charge 30 years ago where the defendant is claiming that he's too ill to be able to stand trial. And the state is, the victim is now in her 40s. So, but there's still, we'll see what happens. John, did you say you're working with Linda Purdy? Yes. Yes. Say hello for me. I don't think I've seen her since we had a murder case against each other many years back. She's an incredible attorney, an incredible person. I threw this whole time period. I've gotten to know Linda very well and I consider her not only a colleague but a friend now and I'm just so impressed with her legal abilities and her compassion as just as a human being. So, she's been over the past. I don't think I've seen her since she and Suzanne Young were tag teaming against me in a murder case a number of years ago. So, say hello. Joe, I don't even want to ask you what the verdict might have been but I have a feeling I know. He got a good deal. Well, listen, thank you all again. And also thank you for Pepper because Pepper, again, I don't think he's on but he really did grow so much in the last three years since he's left the administration. And he's done so much for our department and for the state itself. So, you guys were a big part of that and he considers each one of you a close friend and I told them they can learn from each one of you individually and collectively. So, hopefully we'll be able to find somebody. Otherwise, I won't even be not just that. Our next witness is Sean Burke, Chief South Burlington Police Department. And the head of the Ramon, I shouldn't say, I don't know if he's the head of it but he's representing the Ramon Association. Chiefs, welcome. Thank you so much. I thought I was gonna get a battlefield promotion there. So again, just to recognize Sean Burke, I have the privilege of serving as the police chief in the city of South Burlington and I am simply the representative of Vermont Chiefs. I do promise to be brief, like all the other witnesses. I want to first thank all the committee work that went in on the house side of this bill. How it's advanced this year has just simply added the clarity that we need in policing in order to operationalize this. And I've also had personally a fond appreciation for all the partners that had time and space in order to give valuable input on this bill. I really feel like it's a good collaborative effort and I'm happy where it's at when it came to your committee. We do from the Vermont Chiefs also support the commissioner's articulation of the Graham standards that we'd like to see added to this legislation. We are anxious to get the model policy finalized and getting that into training where we'll inevitably learn new lessons about this. We'll have good questions from the field but I think at this time I've never seen the Vermont police community so aligned and committed to carrying this work forward and I'm happy to answer any questions that you may have but I feel as though that what I intended to speak on this morning, commissioner Sherling and certainly William Thompson hit the fine points on. Thank you. Questions for Chief Burke? Chief in the real world that you deal with on a daily basis. You never know what you're gonna confront when you or an officer of yours goes out into the field. You've had shootings in South Burlington, you've had other incidents. You have to react in a split second I'm assuming. Is there time to view the, going back to that particular section where you might know the person, better describe how you deal with something like that? Yeah, certainly. I mean, there's a whole host of incidents that I can think of and commissioner Sherling talked about the sword incident and he left out how cold it was that night and that's an extreme incident. There are instances where the officer may get out of his or her car and be immediately confront with a situation that you just have to react to. And that's why without the benefit of hindsight is so critically important. There's a whole other scope of work where we do, we get a lot of information front loaded to us from our dispatchers. We arrive potentially a person's alone in their apartment in a state of crisis. We're able to talk to neighbors, maybe the whoever manages the property and we're able to leverage resources. And I think cops on the street today we're doing a much better job of training them. They're good critical thinkers and they use that time and because through time and space, that's de-escalation. De-escalation is not pixie dust that we pick off our belts and sprinkle. It's actually leveraging time and distance and then leveraging different resources that we can bring the bear on those situations. So, I think both need to coexist. And I think that the police officers that work in our communities are excellent critical thinkers in using those moments. But often, not oftentimes, there are instances where that time's just not afforded to us. And we have to act in a split second. And that's why without the benefit of hindsight is very critical language for ultimate clarity in the statute. The questions for the Chief? No, thank you. Thank you so much. I appreciate being here. Appreciate it too. Our next witness, final witness on today is Zachary. Is it Hosun? I don't want to mispronounce your name, Zachary. It is Hosun, yes, thanks, Senator. Hosun, Zachary, Staff Attorney with Disability Rights for the moment. Zachary, welcome. Thank you, thanks for the invitation. Do you know everybody here? I think this is your first time. And I should have introduced Chief Burke, too. I'm Dick Sears from Bennington County. Unfortunately, Senator Baruth is outright on a healthcare issue and we'll be back tomorrow. But Senator White, do you want to introduce? I'm Jeanette White from Wyndham County. So, Senator Benning from Caledonia County. And last but not least, Alison. Alison. Alison. Alison Nidka, Windsor County and some adjoining towns. Alison is also the clerk of the committee. So, welcome to Senate Judiciary. We're taking up H-145. Any comments from Disability Rights for the moment would be most appreciated. Thank you. And again, thank you for the invitation. You know, probably all know Disability Rights' role, but our role is generally to promote and advocate for people with disabilities in Vermont. In the context of law enforcement, we do a lot of work on a variety of levels, including supporting victims in that process and collaborating with law enforcement to be supportive of victims in the whole criminal procedure process. And we have also worked along the past with providing training and education for law enforcement and working on getting social workers and other alternatives to working with people with mental health in a number of crisis situations and even some potentially criminal situations where mental illness or other disabilities could be a factor. So that's sort of the context we have here. We do also work with individuals who have been subjects of uses of force and that ranges from sort of providing some general advice or legal counsel about what their rights may be to and on the occasion when we feel that their rights were violated, we do pursue litigation if that's appropriate in some cases. So that's sort of the background that I can sort of bring to the table and happy to answer any questions, but I'd like to comment on this morning from what the conversation I've heard. I'd like to focus on the section B5 there where it talks about disability. I think one thing that really hasn't been discussed that I think should be is the focus seems to be on whether it's feasible in terms of considering uses of force. And I would like to sort of take a step back and look at what should be considered in de-escalating a situation and accommodating in a person's impairment. And I think that should be the focus of the inquiry is does an officer know or should I think it also should be should a reasonable officer know that an individual has a disability or some other impairments that is impacting their judgment and their behavior. And then if that is the case, how do you accommodate that and how do you try to de-escalate the situation considering that? So I think having language to clarify that. And I think that's where the feasibility comes in is it feasible? Is it reasonable in the context to accommodate the individual's impairment in a way to avoid use of force altogether or at least minimize it? Because we all hear the stories and the examples of individuals who are seriously injured and killed because their disability impacts their behavior and that is not appropriately just responded to in law enforcement uses force that leads to serious harm. And so really for everybody's benefit we wanna try to find ways to avoid that. And I would note that this bill is guiding the Department of Public Safety's drafting of their statewide policy. And in the last draft that reviewed of that there was a comment in there about there's no different standard for interacting with people with disabilities. And that is not true because the American Disabilities Act that clearly does apply and the Vermont Fair Housing Public Accommodation Act also does apply and creates this requirement that law enforcement provide reasonable accommodations to individuals with disabilities. And so it's not only not true but it's concerning that that would be in there. So I think if I would like to see language in this bill that strengthens and encourages that need to accommodate people with disabilities and provide that guidance for the Department of Public Safety and provide greater clarity and guidance for officers and training. So I think with that I'll sort of any questions that you all have. I'm not sure I understand what you're looking for. Do you have some language in mind? I didn't read your slide. Yeah, so and I can submit something in writing later as well but in the beginning there where it says whether a law enforcement knows I would add language in there related to knows or reasonable officer should have known or has reason to suspect something along those lines. So it's not just what that particular officer knew at that particular time but again reasonable officer standard what was sort of reasonable for an officer to know and consider based on the facts and information available to that individual. And so we're looking more at the behavior and the conduct and the history of the individual that sort of thing as opposed to whether they knew that a person had a particular condition. And then just looking at the language. At the end of, I don't have specific language now but I can provide that. Yeah, I don't need it. Yes, I can. But in just a sort of summarize I think that the last sort of but the officer shall take this information to account terming the amount of force appropriate. I think there should be language in there and I'll submit something later on but something encouraging de-escalation and use of reasonable combinations to avoid use of force as well as considering that in sort of what a force is appropriate but the focus really should be sort of before you get to that use of force trying to avoid it. And I think the current statute related to tasers, just 20 BSA, 2367 that statute I think has good language in there about de-escalation. And so I think similar language could be borrowed and put here as well. But again, I'll submit something later on and some red line comments. Thank you. Other questions for Zachary? Disability rights also represented people who were being held in Woodside. And any idea on the use of force there? I mean, those cases were free high profile that went to court under Judge Crawford several decisions of Judge Crawford that helped to lead toward the closure of Woodside. And there are still some DCF employees under investigation last time or the use of improper restraints. Do our laws regarding restraint, are they similar throughout state government where employees of DCF, employees of mental health, employees of the military, you know, anxious? Lucidem, could you clarify the question that I'm not entirely sure? Well, the use of restraints. We're saying that the choke can be used as a case of life. So cold, you know, we can find it, don't can't train in it. But the use of restraints is not only allowed by corrections, I mean by police officers who are allowed to restrain people. We have department of children and families do perform restraints department of mental health workers and contractors perform restraints and department of corrections personnel and restraints. You know if they're uniform, that's what I'm asking. I don't believe they are. And honestly, I don't believe they should be because it's very different contexts. Law enforcement is out there, you know, serving and protecting if you're in a psychiatric facility or another care facility, you're trying to really only use force just to keep the person safe. And there's also less sort of danger inside a facility as opposed to out in the community. I think they are very different standards. And I think that there's good reason for that. All right, thank you. Any other questions? Thanks very much. Appreciate it. Thank you. Bren, can we talk for a few minutes? Obviously we got other witnesses scheduled tomorrow and probably at another date on this bill. I'm curious, you know, we've kind of identified five or six places that need further examination. So let's, it looks like focus on B1, B5, I missed. B1, B5, I missed. I think most of the discussion you've had on the law enforcement use of force standards this morning has focused on B1 and B5. And also necessarily the definition of totality of the circumstances. So if you're giving me an opportunity to respond to the witness' testimony, I would be glad to. That would be helpful. Okay, so I just wanna remind the committee that B1 is the language that sets out the standard by which a court will judge whether an officer's use of force is reasonable. And all the subdivisions that follow are gonna necessarily be qualified by that analysis. That's the Graham standard that's set out in B1. So I, and then the other thing I think the committee, I just wanna remind the committee is that B5, that language about law enforcement knowing that a subject's conduct is due to their impairment, that does not prescribe the use of force when an officer knows that a person is impaired. It only provides that law enforcement shall, if they know that the subject's conduct is due to impairment, factor it into their decision about using force. So an officer's decision to use force against a person that they knew was impaired will be analyzed by under B1. So the question will be, was there an alternative that was feasible to the use of force? That language in B1 necessarily qualifies the language in B5. So that was the testimony that the house heard about in response to the commissioner's testimony about adding language about feasibility. And that's why they decided not to add the language there. I don't think that the fear that B5 will be read in a vacuum is justified. There, as this committee well knows, there's a cardinal rule of statutory construction, which is that the whole statute should be read holistically with the various parts being interpreted within their broader statutory conduct in a manner that furthers statutory purposes. That's a case, that's a U.S. Supreme Court case from 1850. I don't think that a judge is going to look at the language in B5 in isolation and make a determination that an otherwise reasonable act of force was unreasonable because of B5 rather than the analysis that's set forth in B1. So having said that, if you want to include that language about feasibility in B5, of course you can do that, but I don't agree with some of the testimony that you've heard that that would be built in the suspender's language because there's another rule of statutory construction which is that a statute should be construed so as to avoid rendering superfluous any statutory language. A statute has to be construed so that effect is given to every provision and no part will be an operative or superfluous void or insignificant. And that's a Supreme Court case from 2004. So that was a testimony that I gave to the house on the request to include that feasible language in B5 and I'm giving it to you here. With respect to the benefit of hindsight language, my understanding is that the request is to put it, put that language in B1, the language that sets out the standard by which a court is going to judge whether the officer's conduct was reasonable because that's really the Graham standard there. But I point out, as other witnesses have done that that analysis is based on the totality of the circumstances. The totality of the circumstances is defined to mean all of the facts that were known to the law enforcement officer at the time. So as I testified to house judiciary, I think that that encompasses only the facts that were present at the time of the interaction. So if you want to include additional language that provides that the court cannot use the benefit of hindsight, I think you need to add that language in the totality of the circumstances definition. Otherwise, all of the other places that totality of the circumstances appears in the standards may not be considered to exclude any benefit of hindsight. If you're only going to qualify that language in B1, then I think that you make the definition of totality as the circumstances confusing. So I think if you want to add it, it would need to be in A6. But again, as I testified earlier, I don't think that it's necessary because I think the totality of the circumstances definition which you worked on quite a bit. If you remember, that was one of the areas of the standards that got the most attention when you were working on Act 165. I think that you worked hard to ensure that it didn't include the benefit of hindsight. But if you want to add it, that's where I would add it. Thank you. So that would be for everything. It would apply throughout wherever totality of the circumstances is used throughout the standards. It would be clear that it does not include the benefit of hindsight. And B1 is the Graham standard. Correct. That is the language that you can find. And I sent the committee of the case, the Graham versus Connor case. And I also sent you a memo that I drafted last year that kind of describes a little bit of the Graham standard. So that's the language there is in B1. Okay. What about for just to follow on the side. Section 42, any thoughts there? Yeah, so I've been trying to listen with one ear and do a little research at the same time about this and it does look like the way that our self-defense jury instruction works does not quite encompass everything that is just filed a homicide statute seems to put forth. So I'd like to look into this a little bit more to see if the statute is even really in compliance with how the courts are currently undertaking a self-defense analysis. Thank you. I have a question for Brynn. So I have a, I'm not sure if this is a question or not, but- I have to go take care of a dog that's barking. I'll be right back if you can take over Alice. Okay. Go ahead, Jeanette. So in B1, I guess I'm confused about why, what I heard was that we use objectionably, objectively reasonable, and then the same situation. Those are two of the phrases from Graham and that the third phrase is specifically left out. And if that sets a standard that's different from Graham because we've specifically left it out there without benefit of hindsight and- Oh, I don't think that you have left it out is what I'm saying, because that you refer to the totality of the circumstances, which specifically says that it's all facts known to the officer at the time. So when you worked on that language initially last year, we were talking about the benefit of hindsight analysis that was a part of the Graham decision. And that's how you crafted that totality of the circumstances language with the understanding that you can't look back before, you can't look back after the fact with all the information you have after the fact. And that's why you crafted that definition the way you did. So I understand that the words without the benefit of hindsight don't appear, but it's just my testimony that you talked about this during the course of act working on Act 165. And that was the legislature's attempt to codify without the benefit of hindsight. Okay, and then I do have another question about the B5 about the example that Julio gave about with the court asking, did you consider? No, I didn't consider because I was being shot at and I didn't have time to consider. So without how that would play out here is the court is going to ask if you considered all of those alternatives and your failure to use feasible and reasonable alternatives is in B1. And then here we're saying that you have to have looked at all of those feasible and alternative actions before you act. And if you don't have time to do that is the court going to take that into consideration that I was being shot at. And to be honest with you, I didn't think about the fact that the guy was having a mental breakdown or a diabetic coma because I was being shot at. Right, so the committee is when you developed this language in Act 165, you were looking at some federal court case law including from the second circuit that requires that there's already this requirement that exists in the second circuit and several other circuits that the use of force analysis be different when an officer is using force against a person that the officer knows or reasonably should know is suffering from an impairment. So that's why you added this language in B5, one of the reasons why you added it there. And what I've, my testimony is that because B1 sets forth the standard that the court is going to use in determining whether any law enforcement use of force is reasonable. And that's where that feasible alternatives language is that qualifier is that even in a circumstance where an officer uses force against a person that they knew was impaired, that use of force is still going to be analyzed using the reasonable and feasible alternative analysis. They're going to ask the question, was it feasible to use an alternative even if the officer used force against a person who they knew was impaired and their conduct was due to that impairment? Very good. Yeah, I just, I get very confused about the, how we do this. And knowing that people have to make split second decisions is if everybody had time to consider and to think about it and to say, oh yeah, I know that guy is having some kind of a mental breakdown or he just took some LSD tabs. And so I'm going to treat him differently. But people don't have time to react. And I get very nervous that we're setting up situations where particularly in our current environment that we will react in knee-jerk reactions. That's all. I think that just as I mentioned earlier, I think that if you do want to add that feasible qualifier in B5, you may need to add it everywhere else where you want it to apply because then that may be suggesting to a court that they're not to analyze everything through B1, even though that looks like the standard by which they should use, they should use for all law enforcement use of force. You may need to add it elsewhere as well. I see, yeah. Did you want to comment? Yeah, just a couple of things about B1 and about statutory analysis. I agree that a court is going to look at language and ask why did you put the language in there if it's already covered by something else. I think here the answer, I think there's an easy answer for that, which is that why would you add without the benefit of hindsight? The answer would be because we want to mirror the Graham standard and that's the language that Graham uses. Graham says in officer circumstances without the benefit of hindsight. So what would be your legislative purpose? It would be to make clear that you're not seeking to deviate from Graham. That would satisfy, I think, that statutory interpretation. Every police agency policy you could find in the country that defines objective reasonableness will include the full sentence from Graham, but here leaving it out raises the question whether that was an intention and intents to deviate from the standard. So it's true that the court uses maybe duplicative language, but I think if you're essentially paraphrasing the standard that you want to apply, I think that's a satisfactory explanation for why you're doing it. But I think Brent is suggesting that it belongs, if we're going to do that, it belongs in B1. Well, it's a very, very subtle point, but I would point out that the Supreme Court didn't do it that way in Graham. The totality of circumstances tells you to identify all of the facts that were in play. But the issue about hindsight is the kind of standard of review that you use. The next sentence that I didn't quote in the Graham case says, not every push and shove that seems unnecessary in the comfort of a judge's chambers is a violation of the Fourth Amendment. So when you're really talking about hindsight, it's about talking about kind of injecting yourself into the situation, the court, when they are describing the totality of the circumstances, they're just identifying all of those elements. So I mean, for me, clarity is to follow the formulation of the standard that everyone agrees is the standard for objective reasonableness rather than to deviate from that. Because I think that creates questions. Why are you not paraphrasing the Graham standard? And I think what I heard today is that everybody agrees that at least with the first of the three requirements, remember, it's Graham plus two, it's objective reasonableness under Graham, and then it's necessary and proportional. That's the new stuff. And I don't want to just put those aside and focus on Graham. It seems to me that for clarity, you would try to want to echo the Graham standard. You're not mentioning Graham by name, but you are using some, but not all of the language that the court uses. So I just think that the question of like, what is the purpose of the language? I don't think it's, to me, is not a significant concern given the testimony on both sides, both houses or chambers, that the objective reasonable component, the first of those three requirements is the Graham standard. And with respect to feasibility, you know, there are a couple of consequences aside from assessing the use of force that I think you need to take into account. For example, virtually every police department has a policy that says, our officers are subject to discipline if they violate state law. So if B5 is a legal obligation and it says you can do, you shall do this. The question is, and it was part of the example I gave, is whether that officer violated the law or not. It's not whether we're not gonna discipline you for your force, but we told you that you should take this into account and you didn't. Whenever we look at a shell clause in legislation, we always ask, okay, what's the consequence if you don't meet the shell? What happens to you? And there's also a rule in negligence that if you're being sued for negligence, if you violate a statute, which relates to safety, either directly or indirectly, like if you violate a speed limit, that might help bolster a case of negligence if you're violating a safety regulation and so forth. So, I mean, the way it's connected now, the shell, it's an interesting, I think useful requirement to take into account that part of the totality that you're really concerned about is dealing with people with mental illness. And there's a good factual record for that because a lot of use of force incidents in Vermont involve people who have mental illness or other impairments are actually received. So, it's useful to have that. But the way it's phrased now, it looks like a freestanding legal duty. It doesn't say that in determining whether force is reasonable, you'll consider whether the officer took that into account. He doesn't say that. It just says, you have to include this in your calculus. So, that was the reason why, ensuring that we're only imposing that legal duty when we all agree that it's feasible for the officer to comply with the duty made sense to us, at least. Okay. Well, I'm kind of when feasible covers. If it ain't feasible, then you're to, when the courts are looking back at something, if they determine it wasn't feasible, prior to the use of force. All right. Thank you. Any other comments, questions from the committee? Oh, finally, the look at the timeline. Do you think, man, we could easily make it October 1st, I guess. I mean, give them time to do it, whatever they need. Well, I just, yeah, but I don't want them to. No, not forever. But I mean, it is a lot of people to get in there. Do all that training. Well, I don't know when they came up with September 1st, what they expected for timeline. October sounds good then. Better. I agree with Alice. I suspect they just weren't thinking that the Senate might have to address this bill before. I'm saying that kindness for all those of you listening on YouTube. Thank you, Senator Benning. Any other questions, comments before we take the bill up again tomorrow, we're going to hear from some other witnesses. Senator Sears, none of them have confirmed yet. Okay. Well, if we don't hear from them, we will, we make our best efforts. And then we have promised to take this up again. What date would we say we're... I think you said that it was at the 15th, so Etan Nasraddin could testify. Yeah, I think it was the 15th. Tomorrow we have it from 10, 15 to 12. Okay. But Mark Hughes, Curtis Reed, Suzana Davis, and Skyler Nash, none of which have confirmed yet. All right. Well, we can always change the agenda, and take up something else. We have, what else do you have, Bryn, if we need to substitute that in our committee since we'd have you tomorrow at 10, 15? One? I mean, no, sorry. 128, H-128, the criminal defenses based on victim identity. I think you have that scheduled for Friday. Yeah, we could probably take that up and then...