 Good morning. This is Senate judiciary. And it is Thursday, February 3rd, 2022. And our first witness is Tucker Jones. We're taking up S-254, which is Qualified Immunity. And our first witness is Tucker Jones. Good morning, Mr. Chair. From my name is Tucker Jones. I'm assistant general counsel at the Department of Public Safety. On Tuesday, I was discussing one particular case at the end of the testimony, Zulu v. State. I do have additional testimony beyond that case, and I just wanted to check with the chair if that's acceptable, that I go into all of that. Zulu v. State is what I started with last time. It does represent one aspect of my legal concerns with this bill, but it's not the only concern. But before going on to those other ones, I do want to return briefly to that case. Last time, I characterized that decision as being critical or important to understand the legal landscape around Qualified Immunity in Vermont. Since that time that I said that, I've been thinking about this topic, and my concern is actually greater than that and more specific. I think that it is possible that this bill could have the legal effect of abrogating that decision. The legal standard in Vermont is that the common law is changed by statute, only if the statute overturns the common law and clear in an unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter. I am concerned that the second two disjunctive prongs under that standard arguably may apply to this bill and may serve to abrogate that decision from 2019. But in any event, the department's position on this as a legal matter is that the court got the policy considerations right in that decision. The court weighed whether protections like Qualified Immunity should apply to law enforcement officers for violations of the Vermont Constitution. The court determined that such protections were appropriate and necessary to prevent against a potential flood of litigation and that a rule to the contrary would inhibit law enforcement officers from taking some effective and constitutionally permissible actions in pursuit of public safety. The department agrees with that assessment and I'll explain why in a minute. But it's important to emphasize that the court did create an alternative to the federal clearly established standard in that case that an officer may act in bad faith and a plaintiff could show that even if the officer's conduct is otherwise viewed as objectively reasonable. And that would be characterized by ill will or wrongful motive, including discriminatory animus. So we already have a carefully crafted cause of action for violations of our state search and seizure provision. But as I mentioned, my legal concerns are much broader than just that one case. In my view, the purpose of qualified immunity itself remains sound in Vermont. If it wasn't, advocates would be calling for the abolishment of that doctrine for all government employees, which we are not seeing. But it is also probably even more important to know that the Vermont Supreme Court and the Second Circuit Court of Appeals are applying this doctrine in a balanced and fair manner. And so it's for these reasons that I believe abolishing the doctrine is just not necessary. And this is not even considering the potential consequences of this bill on employment in the law enforcement profession, the fiscal impact on taxpayers and the inhibition on officers from effectively doing their job, which I also want to address. But qualified immunity itself, the purpose behind it is not something that we have discussed in much detail so far in the testimony. So I want to start there, even though it's starting from the very beginning. Yeah, can I ask you a question about Zulo, though? That, and I'm not an attorney, but my understanding is that Zulo only covers Vermont State Police, the Department of Public Safety employees and perhaps employees of Fish and Wildlife, I'm not sure, but not municipal police. The case concerned a state officer, but the court did not expressly limit it to any, you know, to only state police. And this is something we were discussing the other day. And we have no indication that there would be any limitation as to municipal employees because they are also government actors who can violate Article 11. There is no logical difference between a municipal law enforcement officer and a state law enforcement officer for purposes of violations of the Vermont Constitution. And so, although that case did not regard municipalities, it borrowed language from other cases that related to municipality liability. And I see no logical reason why it wouldn't apply to municipalities in the future. It's just that that case did not regard it. Okay, because it's been, I've asked why don't we do this follow Zulo? And I was told that it only covered the state employees. That decision only related to a state employee. I was speaking with an attorney just yesterday, actually, who deals with litigation with municipalities and they did not even consider that difference to be meaningful in their own litigation. And there was an assumption that in their litigation, Zulo did apply to municipal employees. So, you know, it's not that the court in that decision specifically limited by any means. It's holding to state employees. And in fact, there would be no logical reason why it wouldn't also apply because municipal employees are also government employees that can violate our constitutional rights like any other government employee. Thank you. I just, we have gotten an awful lot of confusing information. And that's why I want to just start from, in a way, start from the beginning and describe what exactly qualified immunity is and how it applies in this context, specifically in regards to a potential Article 11 claim. So it applies to all government employees. And that's because their job is to carry out laws that affect the rights of other people, including other people's constitutional rights. This is unique to government employees because generally speaking, private actors cannot violate constitutional rights. So we create laws designed to affect other people's constitutional rights. We create laws that allow officers to arrest people to put them in jail under certain circumstances. And we pay government employees to carry out those laws that directly affect those rights. So when someone sues a government employee for infringing on those very rights, for decades, our courts have considered whether the government employee had fair notice that his or her conduct was unlawful at the time he or she engaged in it. So they judge the reasonableness of the government employee's conduct against the backdrop of the law at the time of the conduct. That's what the qualified immunity doctrine is designed to protect. If the law at the time did not clearly establish that the officer's conduct would violate the constitution, the officer should not be subject to liability under the doctrine of qualified immunity according to the United States and Vermont Supreme Courts. That's the purpose of the doctrine. The reason that purpose is sound is because the scope and contours of constitutional rights evolve over time under the common law. So importantly, this is particularly relevant to Vermont because Vermont's Article 11 jurisprudence is continually grappling with whether and under what circumstances its protections extend beyond the Fourth Amendment. So I want to give an example of how this would work in practice. Consider the Vermont Supreme Court deciding in a motion to suppress unappeal that it violates the state constitution search and seizure provision when an officer shines his or her flashlight in the grass to look for evidence of a crime when the officer is otherwise walking to or from the front door of a house for a welfare check. This is actually a case that was decided last year by the Vermont Supreme Court. And they said that doing that violated Article 11 under the Vermont Constitution. Now under this proposed bill, even though the officer had no notice that his conduct would ultimately be determined to violate Article 11, now after the fact, it is possible for a plaintiff to file a civil cause of action for damages and attorney's fees against the law enforcement officer because it had later been determined that that conduct violated Article 11. This is why in civil court, we have qualified the qualified immunity standard. So judges assess the reasonableness of a government employee's conduct against the backdrop of the law at the time of the conduct itself. Now, how this would play out at the intersection between criminal law and civil law impacts the analysis of whether the attorney's fees provision in this law is sufficient to deter a lawsuit under the circumstances I just described because I would submit to you that it would be very unlikely that a civil court would ever find a lawsuit to be frivolous under this bill when a criminal court had already found that the government employee's conduct violated the Constitution in a prior decision. And this is I believe what the Vermont Supreme Court was alluding to when it said that a rule that exposes the state to a potential civil damages suit following every roadside stop or whenever a motion to suppress is granted, dot, dot, dot. What they're referring to is under a standard that does not have qualified immunity. Someone would be able to sue anytime a motion to suppress is granted in criminal court because by its very terms, that decision is likely a decision that an officer violated state constitutional or statutory rights. And from the court's perspective, that could create a potential flood of litigation. So this is just one example of why the doctrine exists. I think it demonstrates in part why the Vermont Supreme Court considered the doctrine appropriate and necessary. The doctrine itself is sound because it strikes a balance between on the one hand vindicating constitutional rights and on the other hand, ensuring that government employees are on fair notice about what conduct can result in liability. That's the threshold question about the soundness of the purpose of the doctrine itself. But if I were in your shoes, I would also want to know whether this doctrine is being applied in a fair and balanced manner. And of course, that is one of the main issues before this committee. So to start answering that question for myself, I searched in the Vermont Supreme Court and the Second Circuit Court of Appeals. So I started with the Vermont Supreme Court cases. I gathered every case I could find that addressed qualified immunity or the related doctrine of discretionary function immunity which would also be abolished under this bill because it is part of the Vermont TOR claims act. And I found 12 cases involving law enforcement officers. I would characterize these cases as largely being uncontroversial in part because none of them deal with the use of force. But I am happy to discuss any of those cases. I would further characterize them as being fair and balanced in their outcomes. And the Vermont Supreme Court denies qualified immunity to officers in appropriate circumstances. Those cases are included on page 16 of the unified position statement that the Department of Public Safety submitted earlier on in testimony on this bill. And I won't get into any of them in detail now because I wanna focus on the federal cases. But to give you an example of when the court in Vermont grants or denies qualified immunity to officers, the court granted immunity to an officer when an officer issued a citation to an individual for bringing a gun into a state police barracks when there was already an existing criminal law prohibiting bringing a weapon into a state institution. So that's the type of circumstance in which the Vermont Supreme Court determined it's appropriate to quickly terminate that lawsuit because it was the officer's actions did not violate any clearly established law. But an alternative example of when the Vermont Supreme Court did not apply qualified immunity is when an officer arrested someone for disorderly conduct when they did not have probable cause and when the suspect merely used profanity. And in that type of circumstance, the Vermont Supreme Court had no problem saying the law was clearly established on that point and the civil lawsuit should be allowed to proceed. There are about a dozen, as I said, cases in Vermont dealing with this topic, but I want to turn to the second circuit. The Vermont Supreme Court has not applied qualified immunity in the context of the use of force by law enforcement officers because these cases are typically filed in federal court. The social and legal criticism of this doctrine is typically regarded this type of case. And that's the type of case where we consider whether an officer's conduct violated clearly established rights to be free from unreasonable force. As you're aware, the criticism of the standard argues that is being applied too narrowly such that courts are inappropriately ruling in favor of officers when there are minor factual differences between existing law and the case before it. The second circuit is not doing this. The second circuit is not applying this doctrine in the narrow manner criticized by social and legal commentators. The second circuit has not hesitated to deny qualified immunity to officers for the use of force. And this becomes a, I think, critical component of this debate because I wanted to assess the second circuit's handling of this doctrine, not from an anecdotal perspective of the occasional case, but a more systematic review of the cases, recent cases that the second circuit has published decisions on. So in my review, I found that the second circuit has denied qualified immunity to an officer for the use of force in eight out of the 10 most recently reported cases. These cases span the past four years and they're summarized on page 12 of the unified position statement. Now I have heard that there has been some criticism of the department's legal analysis and perhaps suggesting that these cases are somehow been selective to reflect well on the department's position. So that's of great concern to me and I want to emphasize the search methodology that was used to construct this table on page 12 and so that it can be recreated by anyone if they want. So the table contains the 10 most recent decisions based on the search methodology listed there. I searched in the second circuit in December but I checked this morning, it hasn't changed for qualified immunity and the use of force, those terms. And it resulted in 121 published cases. I sorted that by reverse chronological order and I went through the cases and I pulled out the first 10 cases that ruled on the issue of qualified immunity and the use of force in a published second circuit decision. And it's from that list that spans the past four years in which you can see in that table, eight out of 10 of those cases, the second circuit in a published decision denied qualified immunity to an officer. And I think that's significant because it reflects that the national criticism is not as relevant here in Vermont as it is in other parts of the country. And even though the standard is promulgated from the Vermont or from the United States Supreme Court, the circuit courts have been applying this doctrine in slightly different manners. And from these cases, which I'm not gonna go into detail on each one or any of them, but from the list of those cases it demonstrates that the second circuit has no qualms about denying qualified immunity to an officer for the use of force. Those are the second circuit cases that are most relevant to me because they're the most recent ones. And I think they reflect the second circuit's responsiveness to perceptions of concern about how this legal doctrine is playing out in the courts. But I also wanted to address the three cases cited by a proponent of this bill in a prior filing with this committee. The first one is Winfield v. Trottier. This is a 2013 case and it's regarding the reading of someone's mail by an officer. What's important to understand in that case is that the individual had consented to a search of the car and that the officer opened the correspondence that was to or from a court. And they said that they were looking for evidence of a parole or probation violation. So what the court said is that in general, an individual who consents to a search of his car should reasonably expect that readily opened closed containers discovered inside the car will be opened and examined. But at the time there was no second circuit case addressing a suspect's private papers under a consent search. And so in that circumstance, the second circuit held that a reasonable officer may not have known that this constituted a violation because no prior case in the second circuit had so held. So the perceived egregiousness of the case is not as significant when the full of facts get hashed out. The second case, Keen v. Schneider, is a summary order from 13 years ago. I want to read the characterization of that case in the proponents letter to this committee. The troopers were permitted to enter Mr. Keen's home. They questioned him in his living room about a possible DUI. Troopers decided to arrest him on suspicion of DUI later dismissed by the state's attorney and he refused to go with them. The troopers pepper sprayed him, took him to the floor and repeatedly punched elbowed and kneaded him in front of his prime 14-year-old daughter. The district court denied qualified immunity but the second circuit reversed granting qualified immunity because the troopers actions did not violate clearly established law without deciding whether the use of force was excessive. That was the characterization of the case to you. I now just want to read what the second circuit said in that decision. I apologize for getting in the weeds on this but I think it is important to understand the nuances of these cases so that this committee can assess whether the second circuit court of appeals and the Vermont Supreme Court handle these cases appropriately. This is what the second circuit said. In this case, the plaintiff concedes that the officers had probable cause to arrest him and that he resisted that arrest. He concedes that he refused multiple requests by the officers to place his hands behind his back. He concedes that he was repeatedly warned before the officer pepper sprayed him. He concedes that once on the ground he held his arms underneath him to prevent the officers from putting handcuffs on him. He states that he only released his arms when he heard his daughter tell him to. The law is clearly established that officers may use reasonable force to effectuate an arrest. Under the circumstances, we find that the officer's use of force which resulted in minimal injuries and stopped immediately after the suspect was handcuffed did not violate clearly established law. The court's care, I'm not gonna comment further on that other than to leave that with you as an example of the importance of understanding the nuances of these cases to assess whether the court is reaching the appropriate and balanced result in each one. The third case is Kent v. Katz. This is a 2005 case. It was 2004 in the district court, 2005, affirmed by the Second Circuit. This is a case that affirmed a jury determination that an officer was entitled to qualified immunity. The issue of qualified immunity went to the jury because the court had previously denied qualified immunity to the officer in an earlier ruling. The court earlier stated that it cannot agree at this stage of the proceeding that the defendant should be entitled to qualified immunity on excessive force claims. Material issues of fact remains as to whether clearly established rights were violated. That was the district court. It was appealed to the Second Circuit which affirmed the denial of qualified immunity. And that is why the matter went to a jury in the first place. Again, this is an example of the Second Circuit's willingness to deny qualified immunity and allow cases to go to a jury in appropriate circumstances. But I think this case is also illustrates another aspect of the concern about using civil litigation as a professional regulatory mechanism. The final decision in this case occurred in 2005. The underlying incident occurred in 1996, nine years earlier. This is one of the reasons that civil litigation is not an effective, timely, or direct way to regulate any profession. There's no resolution of this matter for nine years after the incident. And the officer could very well have retired by the conclusion of that case. My point here is that the Second Circuit is applying this doctrine in a more balanced and fair manner than I think we realize. And they do not hesitate to deny qualified immunity to officers in appropriate cases. The doctrine, as recognized by the Vermont Supreme Court three years ago, continues to be a practical and effective mechanism to ensure that insubstantial claims against government officers will be resolved early in a lawsuit. This bill, however, disrupts that balance that the courts have struck. Exposing a state to a potential civil lawsuit following every roadside stop or any other interaction has the potential to create a flood of litigation for every alleged constitutional violation and to burden taxpayers with the cost of defending all of those suits. The way that this would happen is how I explained earlier with the example of the Vermont Supreme Court ruling one way and an officer having not been on fair notice that that ruling eventually resulted. Any time a motion to dismiss is granted or any motion to suppress is granted that deals with a constitutional statutory violation could serve as a basis for a lawsuit. Even if the officer had no notice that the conduct at the time violated the law when he or she engaged in that conduct. But in addition to these legal concerns, the increased risk of litigation has the potential to deter officers from effectively doing their job. This is what the unanimous Vermont Supreme Court said three years ago in Zulovey State. But that concern raised by the Vermont Supreme Court has since been confirmed by officers themselves. In a March, 2021 poll of 330 Vermont law enforcement officers 85% of those officers said that the loss of qualified immunity would bring reluctance to the performance of their duties. Now this is not abstract to me because I am an attorney at the Department of Public Safety who in part advises the Vermont State Police on what is and is not legal in trainings and in other matters. Under this standard by removing qualified immunity, the advice would essentially be that we don't know what could result in potential civil liability until after the fact when the litigation is played out. Now we can relay to them the state of the law as it exists today so that they can stay within those bounds and to avoid civil liability under those circumstances. So this is a practical but important policy consideration that the Vermont Supreme Court considered three years ago. But all of these concerns are in addition to the effect that this bill could have on the emerging employment crisis in the law enforcement profession. The rate of officer. Can I just, we're going on and on here and I just wanna be mindful of Mr. Richardson and our agenda. We've already about a half an hour into your testimony. How much longer do you need? Three minutes? Oh, that's fine. Thank you. So the rate of officers now leaving the profession is markedly higher than the rate of officers entering the profession in Vermont today. And this has created an unsustainable trend in employment that may eventually affect public safety in Vermont. Now on top of this current trend that we are dealing with, this bill will serve to drive officers out of the profession and it will deter officers from entering it. The risk of potential personal liability in a public service job is a clear deterrent from taking that job. Now I submit that to you as a self-evident proposition and you can consider that for yourself. But in the same poll that I mentioned above, it from existing law enforcement officers, 47% said that they would leave immediately within one year or as soon as they found another job if qualified immunity was eliminated. In addition to those 47%, an additional 37% said that they would leave but that they were stuck in the profession for one reason or another. So the department shares the same goals that I think we all have for this profession. We want to build trust in the profession. We want to reduce errors in the profession. We want to address misconduct promptly and appropriately. We want to improve outcomes of each interaction with the public. But from the department's perspective, this bill does not constructively advance those goals. This bill is legally unnecessary, as I have previously described and this bill has potentially enormous negative consequences on the profession, on the taxpayers and on potentially public safety in the state. And so it's for these reasons that the department urges you to vote against this bill. And thank you, Mr. Chair for the time. Thank you. Are there any questions from Mr. Jones? Senator White. This may not be a question to be answered right now since I know that we're running a little behind ourselves but I just would like to have a further discussion at some point on what Tucker said about the Supreme Court decision about that something like qualified immunity has to exist and would like not right now but a discussion of what that means, the something like and how we would codify something like. So that isn't a question for right now but just a discussion point at some point. Thank you. Thank you, yeah. Ben, if we could discuss that, if you keep that in mind, I appreciate it. I don't have any questions. I just want one comment. I've seen the question has come up several times about why not all qualified immunity being done away with and I, my read of that was that police officers and in some case corrections officers are the ones that have the power of the use of force. They have the certain powers of arrest, they have other powers and that is one of the reasons that the bill focused just on police officers. Just to answer that question, I don't appreciate your testimony. I guess there are no other questions. Mr. Richardson, welcome. I think we've seen you before, Dan, on a couple of occasions but you're here today representing, yeah, you're representing the city of Burlington, correct? I, that is correct. I'm the city attorney for the city of Burlington but I want to be clear. The testimony that I'm going to give is something that I prepared that the administration supports but does not necessarily reflect spend no vote in city council and so you may take it for what that is. Just for anyone who hasn't met me, my name is Dan Richardson. Excuse me, Mr. Richardson. I'm just, that was a little unclear. So are you speaking on behalf of the city of Burlington or not? No, not as a unified city in terms of what the city council and mayor have decided. However, the testimony I'm giving has been approved by the administration which would be the mayor's office alone. So you're speaking on behalf of the mayor? Yes. Yes, thank you. So for those who haven't met me, I'm Dan Richardson. I'm currently the city attorney of the city of Burlington. Before I became the city attorney of Burlington, I was in private practice in Montpelier at Tarrant Gillison Richardson. In that capacity, I used to represent municipalities in some of these situations but I also represented individuals that were suing municipalities. Further, I also taught municipal law at the Vermont Law School for several years in which a major part of the curriculum involved qualified immunity. I just wanna make a couple of points that I think are issues with the current bill. And I can say that the administration does not support the current bill for a number of reasons. And I wanted to make four points and I'll try to make them efficiently. The first one is my understanding is that one of the points that have been put forward about in support of this bill is that it has a connection to discipline for police officers. It's a way of making them accountable. I think there's a misunderstanding or a disconnect there at least in the city of Burlington, the way the disciplinary process works is under the collective bargaining agreement, there's an investigation that usually occurs as close to the incident as possible. And when that incident occurs, I mean the investigation occurs, discipline follows, which is often far in advance of any type of litigation. So regardless of how the litigation may play out in terms of whether there's a qualified immunity defense or not, the discipline process is often over years, if not months before it gets into the substance of the civil suit. And once a discipline occurs, it can't be reopened. And I think we found out the hard way in Burlington before I took office up here, there was an officer who was the subject of a civil suit and some of his behavior, once it came to sort of public light, there was a great deal of political pressure to remove this particular officer. But under the contract as it's currently situated, there really was no way to remove this officer short of what became essentially a structured buyout. So this officer received a great deal of money to stop being a police officer. And so in that respect, I think the civil lawsuit while it certainly brought some of his practices to light did not effectively provide that sort of accountability that some proponents of this bill may be looking for. And I think if there are reasons to support this bill that you wish to do, that's certainly fine, but I would argue that discipline is not one of them that will result. The second point I'd like to make is in regard to some of the tort liability that is covered by this in the broader language that I believe your legislative counsel in his memo has pointed out. One distinction that I would bring forward to the committee is that for most of these type of tort actions, a police officer is not necessarily engaged in a use of force, or at least the bill would cover actions outside of the use of force. An example that I've given or considered is such things as if a police officer has to make a determination of whether or not to close a road because of ICE, we're expecting an ice storm tomorrow, a police officer may have to do that. Now, police officer has to balance out that interest in closing the road with keeping it open to public traffic. And they may make the wrong decision in terms of someone getting hurt. They may keep it open an hour too long or they may close it too soon. And somebody is unable to travel and then when they need to travel. Under tort type of claims, there's a different type of qualified immunity. And that's what's often known as the ministerial discretionary test. So unlike the qualified immunity that attorney Jones was talking about that we associate with these constitutional claims, tort claims come with more of a question of is there a discretionary function in there? And another example that I could cite would be if an officer has pulled somebody over for a suspected DUI and gets a call about a domestic incident and chooses to leave the DUI to deal with the domestic incident, the domestic incident turns out not to be anything but the person in the DUI situation kills somebody. That's a judgment call that presumably the police officer is guided by standards, the police officer is guided by training and judgment. And in some respects, we give them the right to be wrong, to make that wrong call because they're balancing these very difficult factors. And that's a different type of qualified immunity test that happens. And so even the Colorado law that's been put in place does not include this type of activity, the sort of tort negligence, often because if you change the identity, for example, in the road closure from a police officer to a department of public works, they would be entitled to qualified immunity under that situation, but under the language of this bill, the police officer would not. And we've seen the Vermont Supreme Court dealing with these types of cases, I think most notably in Kennery versus State, which was decided I think in 2016, that dealt with state troopers going on a welfare check and they failed to go around the house. And the woman who the welfare check was a subject of the welfare check, she was actually had fallen down by her back door. They didn't discover her, she died of exposure and her state brought the lawsuit. And the Supreme Court said, there is no qualified immunity here because it's not a discretionary function because there's only one way to do a welfare check, which is the right way and walk around the house. You're not using judgment. So it's a much more nuanced type of test in some respects than a qualified immunity. And it looks to the practicality, it looks to saying, what are the hard decisions that government officials have to make that we expect sovereign entities to make such as closing public roads or deciding between two priority cases, both of which may at first blush and glance seem to have that type of need for them. So certainly, to the extent that the language includes that, the city would want that removed. The third, I can talk about the cost implications in a very general sense associated with this bill. I've had some preliminary conversations with our insurance agent. And as you might expect, if there is greater claims and greater potential for damages, there is greater costs to the cities that have to defend these cases. And it's important to keep in mind that the way in which under 24 VSA, section 901A, anyone who is sued by an individual effectively sues the city, the municipality that employs that individual. And so a lot of the cost of the removal of qualified immunity is going to be borne by these municipalities. And I understand that there may be an argument that that in fact will cause municipalities to be more careful as to who they hire, who they retain, how they create standards. But that's in indirect pressure because what happens is it comes through the insurance company, it comes in higher rates of cost. And I think there are better ways to deal with that. And that actually leads me on to my fourth point, which is, as you may understand, the city of Burlington is going through a very public process about policing and what it means to be a police officer in the city of Burlington and in Vermont in general, and what type of oversight. And I'll start off with an anecdote, Teddy Roosevelt, before he became vice president, before he fought in the Spanish-American War, was a police commissioner in New York City. And he was seen as a progressive police commissioner because he was seeking to clean out some of the corruption that was endemic to the police department in the late 1800s. And one of his last acts as a police commissioner was to remove the police commission itself because it had become a source of cronyism and corruption. And he replaced it with a single police commissioner who effectively became a chief of police to sort of isolate the department from the political pressures that were causing this type of corruption. And that's similar to the system that we have in place for most police department, I would say all police departments in Vermont right now, which is discipline is centered on the chief of police. And it is isolated in large part from political pressures, from community pressures. And I think it comes from that older sense. And I will be the first to say that that is an outdated form of police oversight that members of the community want and deserve a greater voice and role in that type of discipline and oversight. And if we talk about how we want policing to function in the 21st century in Vermont and in Burlington, I think there are two very important places where legislation can help. And I should say that structure where the chief of police controls discipline to exclusive, that's law. That's the default law and that's the law largely in charters across the state. And we're moving in a direction and certainly my office is trying to develop alternatives to that and hopefully in the next year or so we'll be presenting some of those changes to you. But part of it is how do we involve people in the disciplinary process? How do we involve community boards, police commissions, such as they have in Burlington into that disciplinary and oversight process? I think that's going to have a far more important impact as to how policing functions. Already what we have in Burlington and what I'm encouraging the police commission to do are help draft standards. Let's create standards of policing that reflect these ideals and these ideas that are contained within some of these constitutional cases and challenges. And I think that's an important change. The other part that I think this committee and others can do is on licensing of police officers. I've heard an analogy drawn out between police officers and attorneys. And as an attorney, I can be sort of hit with a double whammy if I do something that violates my ethical obligations. I can be disciplined by the disciplinary counsel for violation of ethics and I can be sued by my client for malpractice. That's not exactly the way in which policing works right now, but if we strengthen the idea of licensing standards, if police officers could lose their certification for violating what we would consider the floor of ethical behavior and strengthening the VCJC's ability to do that. I think that goes a long way because I know certainly in my profession, that's an important part that drives our behavior and making sure that we behave in an ethical way. For the other part, for the liability part, I think we have to be careful because to a certain extent, the analogy doesn't necessarily carry over. For example, as a lawyer, I can't be sued by the other side. There have been a number of Montsouris cases where I've made opposing parties very unhappy. Sometimes I've made them happy because we've lost, but I certainly know that there have been opponents who would have liked to have challenged my decision-making, but that's part of the adversarial process. And to a certain extent, when you're talking about use of force, police, you're talking about the use of force, you're talking about an adversarial process as well. And that's one of the things that I think goes to Attorney Jones's point about the need for something like qualified immunity in the court. Something, Senator Baruch, your? Senator Baruch, your? It might be me. No, I think it's Senator Baruch. Yeah, I think it's him as well. Go ahead, sir. Sir, I'll finish, and this is really my last point. I think that something, that sort of separation from and protection for police officers in using force in those adversarial situations is where the Vermont Supreme Court comes with their need for something like qualified immunity. So those are my points. I deeply appreciate the opportunity, and Chair Sears, I sincerely am very grateful for the opportunity last minute to come and testify, and I'm happy to answer any questions anyone might have. Yeah, I don't have any questions personally, but you're very welcome, and I appreciate your testimony. Senator White has a question. No, it's more of a comment to Dan, and I know that you know that we've been working with the Criminal Justice Council, and they're newly structured now, and they have a professional regulation subcommittee that is working really hard on this, and we've been working with them about the function of licensing and stuff. So that is in the works. Good, good. I really appreciate that, and I think it's certainly, it's the right direction to go for a lot of this. So thank you. Well, it is complicated, I appreciate your testimony. We're gonna zip to a different subject and take this up next Tuesday or Wednesday, and I'm not sure how much more testimony we need, but I would like to maybe hear from a few more people and then try to work through where the committee wants to go with this bill. I'm still trying to reckon the issue of Zuloh and how does it apply to local, doesn't it apply to local? Senator White. Could I ask that, I know that both Dan Richardson and Tucker Jones have talked about Zuloh decision about something like qualified immunity, and I don't know what that means. So I would love if somebody could try and figure out some kind of language about what something like qualified immunity means. Maybe Ben can weigh in with some language, but I would love to have us look at that a little bit because I don't know what that means. I would hope that would be part of the discussion. Okay, thanks. But it is, some of it's confusing to those of us who are not attorneys, but it may be confusing to those of us who are attorneys, I'm not sure.