 This is Senate Judiciary, it's finally Friday, and they are taking up S184 dealing with justifiable homes. Bill was introduced by members of the committee, and the lead sponsor is Senator Benning, and I want to say a few words about it before we prepare it over to Eric for a walk through the bill. Thank you Senator Sears. Last year we passed a bill out of committee to tweak the justifiable homicide statute, and the easiest way to describe what we're trying to do with this bill is to make clear whether an individual who is not directly themselves under threat of legal, lethal harm, has nevertheless the ability to act on behalf of another who is. And I'm going to use our committee room which we all miss as a classic example. If we were all back in committee, and a somebody coming in with a knife, for instance, came through the door and started stabbing people. Peggy is behind her little wall there behind the filing cabinet and probably is not obvious to the individual who is doing the stabbing. But if in the process of the individual stabbing somebody else, Peggy, completely unknown to the perpetrator, stands up and starts to perpetrate her over the head. Normally, we would all assume she has done so with the protection of justifiable homicide. But the way we ended up with the bill coming out of committee, we kind of muddied that up, and it was not the fault of anyone in particular. In fact, I'm going to blame myself most of all because I should have picked up on this a lot sooner. But at the end of the day, what we ended up doing was kind of muddying that up. The response by Ledge Council at the time was that, well, this was common law anyway. And I concede that, but in any courtroom, a judge, when reviewing the law and how to apply it, is going to look to the plain meaning of the statute first. And so we ended up having chair Sears and chair grad from the House committee, writing a letter to the governor saying this is what we did not intend to do. But that letter will fade in history and eventually there will be a judge looking at the plain meaning of the statute and trying to apply it and figuring out whether or not legislative intent is playing on its face. So this is where the letter had been sent and actually it might have been during the time the letter had been sent. I was receiving messages from both the defender general and from the attorney general's office, as well as the state's attorneys and sheriffs, and several different interest groups saying this is probably not the clearest thing that's out there right now and it's causing some confusion. There's some back and forth correspondence. You're going to hear from some of those witnesses today as to what the tweak needed to be. I'm going to, I'm hoping Evan me and is on the screen right now and I'm just going to send a message out to him that Evan had presented to me a fairly. substantive and probably as an eventual direction I'd like to go in but just for Evans edification. I tried to keep it as simple as possible for this stage to get the issue back in front of us. There are all kinds of things about the justifiable homicide statute that I would concede could be addressed should be addressed. For step one of introducing the building in the conversation started the only thing that we're trying to make clear is in the instance of Peggy's example that she would still remain protected as acting in justifiable homicide. That's pretty much it. I feel that you're talking about this, I believe 8245 and the language that was in the law that we changed included in the just and necessary defense of his or her, her own life or the life of his or her husband wife, parent, child, brother, sister, master, mistress, servant and guardian award. That was when it could be, could be used so that was the, the statute that we were trying to collect. Obviously, master, mistress, servant or words that are no longer used. So it was very limited in the fourth S145 or H145, excuse me. Yes. So if you. So that, that's kind of the history. Eric Bryn here did a memo on the bill, it would be helpful to have that on the committee webpage. Yes, sir, I can track that down. That's the problem. I was just looking for my own copy of it. I couldn't find it in my 145 file. So with that, the bill actually dealt with a lot of other subjects. Yes, Senator. Sorry, I was wondering if I could ask Joe a question. Sure. Joe just wondering, having just heard that language. So your language as I read it is any other person thoughts on that difference between limiting it essentially within the family or in this case covering everybody or Eric. I'm, I'm afraid those two portions of the statute are being mixed up. This, this, this correction is not to do with the portion of the statute that identifies those relations that Senator Sears just indicated there's two different subdivisions of the statute. I had the act on the committee webpage. I was going to pull it up so that the committee could look at it and see what the actual proposal is. It doesn't affect that piece of it. All right, I'll wait until we see what the application is. I'm glad you brought that up though Phillip because that list that specifies who is entitled to this protection. Evan me and I were having a conversation about what why is there a list. And I don't know that I can explain it, except to say it's been long held that, for instance, a family member has a right to protect a family member. And there's a delicate balance between the George, I'm sorry the Georgia man, Arbery, thank you that we were trying to address. And then suddenly looking at a list and finding that only specific individuals can claim this protection. That has never made any sense to me and it was part of Evans initial proposal that we get into that conversation but this bill does not go that far. I'm trying to make sure that we tweak the word person and make sure that whatever person that is is actually not required to be under legal threat themselves. When they act on behalf of another to protect them from some legal threat. I think it'd be helpful if Eric walks through the bill, and then we can further discussion but I, this has been helpful to remind us of what we did. The letter, probably from representative Brad myself should also be on the web page. I'm the letter yes center tears right okay yep. Doesn't have to be right now. As we take it up. It's important to have the history. So, yeah, please go ahead. Yeah, thank you. Good morning everybody. Good morning. Nice to see you here to talk about S184 and actuating to defensive others and justifiable homicide. I think as Senator shears and Senator Benning have just started the explanation about this that a good sense of it that we already have. I'm going to also look at the language of what was act 27 from last year which is what made the change that that S184 is trying to address and I think that the concept to keep in mind is to reiterate what Senator Benning said is that that prior to act 27 or last year that the common law, such as it was, was it reasonable force could be used to to for in self defense in other words when you think you yourself are in danger, or when you reasonably believe that another person is in danger, you could also use reasonable force so you ever understand that under applied in both situations you could when you thought yourself you yourself was in danger or another person was in danger. So that was the state of the law when act 27 was passed, and Senator Benning said it. The result of act 27 is that there now appears to be some lack of clarity as to whether or not the, the common law principle that you could use force to defend somebody else as in the example Senator Benning described, whether you could still do that and that's unclear and I'll take a look let's take a look at the language and we can see exactly why that is and what S184 does, what proposes to do I should say, to correct that. So, I'm going to share my screen and pull up the relevant language in act 27 of last year. Here we are this is act 27 as Senator Sears mentioned this it dealt with a number of topics related to law enforcement use of force. This was only one piece of that detailed bill that dealt with quite a few subjects and I believe it was here it was in section four, the justifiable homicide piece of the bill that we're looking at. And you'll see there's actually two subdivisions one and two in which changes were made we're only dealing with subdivision two for purposes of S184 so far, and actually if you look closely at subversion one this is what Senator Sears was mentioning in center he's referring to both as well referring to different relations. This substantively was not changed by act 27. You'll see the changes are. I shouldn't say that there are some changes but but if you if you look at them carefully to see that mostly they are not substitute for example the first line talks about. The second line used force in the just a necessary defense just changing his or her to the person so it's gender neutral. Second line of his or her husband or wife, just changing that to spouse. So again, no change there substantively parent child, and then it had that brother sister, and that just gets changed to sibling so no no substantive change there, and then it does strike master mischievous and servant we don't use those terms anymore, and then keeps the terms guardian and war. So really not much change there are substantively from what was existing law other than striking the terms master mischievous and servant which we don't use anymore. So that essentially preserves the law as it was. And two is where the change came in, and this is the change that that is proposed to be clarified by s 184. Now the new language you see is in the first three lines but imagine for a moment that that that those three lines, the underlying is not there because you want to think of what the what the law was before as sorry act 27 was passed and in that case reasonable force was okay. Remember just going to read the non underlying the pre existing language in the suppression of a person attempting to commit murder sexual assault aggravated assault Brigley or robbery. So again, suppression of a person attempting to commit any one of those things. It doesn't matter that the reasonable that the person being threatened is either yourself or another person. In either situation, it's okay under that existing language you're just trying to stop the person person from committing one of those offenses. The fear of the commission of the offenses of harm to yourself. That's encompassed within that language. If it's fear of harm to another person that would also be encompassed in that pre existing language. Act 27 you added the underlying and that says, it only applies if the person reasonably believed that he or she was an imminent peril, and that it was necessary to repel that peril with deadly force. And then it goes on to the rest of it. So you see, it's a change there. If the person recently believed that he or she was an imminent peril doesn't include the belief that someone else was an imminent peril, which was the way the plan before you could use the force not only to when you thought you yourself were apparel but you thought another person was as well. So, as Senator Sears mentioned, there was a back and forth about this last year this this committee chair Sears and chair grad sent a letter to the governor clarifying that the legislators intent was not to overrule that common law principle that the defense of others could be used. And the governor sent a letter back saying that he was concerned about whether or not the bill had that effect. Anyway, so there was this back and forth and I think everyone agrees. Senator Benning mentioned that it was not the legislature's intent to to overrule that common law principle but the question is, even though it wasn't your intent might the language be interpreted to do that anyway. I think, as Senator Benning mentioned, that yeah, the possibility is that it could. And, you know, it's unclear. It might be that a court was when was reviewing the language might say well, you know, we have that letter from the committee chairs in hand. Even though the plain language says otherwise we're aware that that the legislature intended otherwise so we're going to interpret it to mean that that common law defense of others still exists. And then the court could look at the plain language of the statute and say well it doesn't say anything about defense of others and in fact, you know, if you just read the plain language. It seems to say that that the defense is only available. If you're, if you believe that you yourself are an imminent peril, and that the legislature just looking at the plain language overruled the common law. I've looked at several cases on that is when the legislature is is passing a statute whether when the courts interpreted as to being an overruling of the common law and I think the conclusion is that it's not clear the courts look at different factors it depends on the circumstances. And you can't I don't think one could say with confidence going forward that that common law defense of others principle would still be preserved with this language or whether it wouldn't. So, as the committee knows from, from our legislative council is neutral and we don't advocate for one side or the other but one thing we always do advocate for is clarity. Whatever one chooses whatever you choose for policy we advocate for clarity. And I think the right move for clarity is to put language in there that specifies whatever your intent was so. Yes, please. Before you move off this page into the proposal. Can you remind me or somebody remind me why we even did that in number two. Why we, because it seems pretty clear in the original language that it. Why did we do that. You know, to be honest, I didn't staff the bill. I think it's mentioned it was so I honestly don't know. Okay, so I can answer that. If you'd like, because we were concerned. The case in Georgia had just occurred with Mr. Aubrey and his murder. And we were at the time, people were looking at Georgia statutes. And the legislature there actually changed the statute in Georgia to make clear. We were concerned at the time about that but we did not. I don't ever remember attending. We want to make sure that we weren't allowing that type of behavior where a guy is out jogging three. Well, two people shooting at him and another filming it. We may have gone a little bit overboard and trying to make sure that that didn't happen, which was the reason for our letter. But as you can see from the language from s one h 145 clearly. I was just reading it was just he or she and not anyone else. However, in one of above, you know, it did list the number of other people that you can protect. So the question was, could somebody protect a stranger that Senator Benning described as Peggy in the committee room. Being injured. That was why it was really overabundant to caution to avoid a situation like in Georgia where some referred to it as kill your neighbor bill or shoot your neighbor bill. I get that but I think that in that case, they wouldn't. I might be wrong but it the suppression of a person attempting to commit murder sexual assault grab aggravated sexual assault, burglary or robbery I don't think he was attempting any of those things so it shouldn't have been justifiable. Although they did say he was attempting burglary, but that wasn't anyway. Okay, I get it now I remember. I think another way I'm, it's a little dim in my memory but I think one of the things we were talking about was the original language says that you could suppress somebody who was attempting to commit burglary or robbery. You might yourself not be in any danger from them but you see that they're committing a robbery. Should you be allowed to then pull out a gun and shoot them. The discussion turned on that and so, as I remember we added the underlying language so that you yourself have to be under threat in order to repel with deadly force. I got. Yeah. Thank you that yeah that that helps. If I could, if I could just jump in with that Phillip my, my understanding of everybody on the committee was trying to reach that question at some point in the discussion. Is it legitimate to use, for instance, deadly force if someone is burglarizing a building that you're not threatened in in any way shape or form which was the Aubury case. And in the noble attempt to try to get to that conversation. I'm not sure we yet have cleared a full discussion on that because in my own head, if somebody is committing a burglary in a building across the street. The idea that I could use lethal force against that person. I find objectionable. So that's a conversation that I do think. But, but the language now prohibits that. And that is true, except that what we did was, we did not protect an individual who was not in any. I'm sorry I'm confusing the two portions you are you're correct. I just want to make sure that a judge reviewing this enables someone to say they were actually acting to protect somebody else from lethal force. Let's move on I think we all understand. I think we know what our intent was. Governor's office picked up on it. When he signed the bill and Senator grad representative grad nice and a letter clarifying our intent on s184 tries to put into statute what we meant. And thank you for that segue Senator Sears because that does bring us right into how s184 attempts to correct that, that, that legislative intent issue and make sure that the, that the intent is exactly what it was, you wanted it to be. And you'll see that that language is on page two lines one and two. The way here is that a center, Bruce and Senator Benning just getting at, by making that change you did, you did change, change the existence of the statute so that that you know if there is that burglary going on across the street and nobody is in danger. Well then, you, you've covered that situation because you have to have in order for someone to use force there has to be a reasonable belief, at least under the language past last year that that the person themselves wasn't imminent peril so it has to be any burglary that's happening that has to be that belief that you that the person is in peril. The issue was that it may have inadvertently cut out the situation where you believe that someone else is in peril. So again it's not just any random burglary, someone does have to be in peril. It's just that the language that got passed may have inadvertently excluded the common law of ability to act when not only suggest yourself that's in imminent danger. It's another person. And so that's what the language attempts to correct. And you'll see it's just very, very straightforward. It expands it to make clear that the person can act at the person reason we believe not just that he or she and again we change that to the person to be gender neutral. And so the person reason we believe that the person or any other person was an imminent peril, and it was necessary to repel that peril for deadly deadly force so again it's, you believe that you yourself is in peril or somebody else, and you have to have to be necessary to to act with deadly force, then you can do so. But it's not limited to you yourself anymore. It would be clarifying the intent to go back to what the common law principle was which was that you could act when another person is in peril as well. So again, pretty straightforward. Eric, can I ask a question before you scroll down on the page if you go back up to paragraph one. There is a reason for us to question whether paragraph one needs to exist at all. There's something I'm going to float out there as a potential amendment to this bill that I just don't understand the rhyme or reason why there would be a specific list. I think you're going to hear more about that from some of our other witnesses. Well, why don't we let the witnesses before we start marking the bill up why don't we hear from the witness. We don't want to protect grandpa. How about your girlfriend that they're not there either. The parent of your child that there's a lot in that mixture there on. Okay, I'm getting a little. So we got the cart before the horse and if we want to just send the bill out without testimony that's fine with me, but I tend to think we ought to listen to the witnesses and I agree that, you know, we can look at all of that. You don't want to have other intended unintended consequences by striking something that's been in the law for centuries. In terms of number one. Sorry, could Eric just go down a little more. Okay. Got it. Thanks Eric. And yeah, that's it as I say the understanding the issue took some discussion but the language itself is pretty straightforward so that's all I have for the walkthrough and I could pull that down center series if you want to start. If you want, yeah, it really is a simple little bill. Right. I believe we invited J person Johnson from the governor's office to testify. And she said that Mandy Worcester, I believe was the person that we should hear from from the governor's office. I've got the right name and right person. You're up next. Good morning. Thank you for having me today. My name is my Senate judiciary, by the way, Mandy. Thank you. You know all the numbers, but you've heard from all of us so. Yes, thank you very much. My name is Mandy Worcester. I'm the executive director of policy development for the Department of Public Safety. I appreciate the opportunity to speak today. I'm speaking specifically in the language changes that were drafted and to express the Department of Public Safety's support of these changes. Good. Thank you. Thank you for this testimony I've ever heard. Very clear. Good. Any questions for me. I assume that the administration believes that this takes care of their concerns that were expressed in the governor's message. Yes, Senator. Thank you. All right. Next on our list is Julio Thompson, director of civil rights unit civil rights unit in the office of attorney general Julio welcome back happy new year. Happy new year thank you all. Good morning. Yes, Julio Thompson attorney general's office civil rights unit director. You know, I would, I think our office asked me rather than our criminal chief division chief to come over because I was present for a lot of the discussion in the prior session. About this statute which you know my impression was that it was sort of discovered during the discussions relating to unlawful or rendering and articulating unlawful neck restraints in connection with law enforcement. And I briefly mentioned in some of the discussion in the prior session and I'll mention here that that what actually happens in and we have judge Sony and Evan who can illustrate this or explain this further but in criminal court cases. The courts are not queuing to the statute, even before it was amended before. They have not limited defensive others to just these individuals who had been articulated in statute, the old language about mistress and master and that sort of thing. That really comes from like early English common law that self a defensive others was in early early common law. It's limited to certain relationships but after the development of the model penal code most states moved away from that. And just simply articulated that you have the, you have a defense to, or you, you have the right to defend others regardless of what the relationship is if there's that is that threat level. And as an example of where the courts actually are Vermont has a model jury instruction it's instruction number CR 07 dash 111 that was last revised in 2019 that articulates for example the self defense standard that the courts use. And they don't limit it to relationships they don't limit it to certain crimes it's really based upon the reasonableness of the threat and furthermore, the courts address the issue of self defense and a more refined level such as cases where the person who's trying to assert self defense was the initial aggressor. So that might be to various senator Bennings hypothetical that might be a case where someone enters the room and Peggy pushes the person without justification and then that person responds unlawfully with deadly force pulls out a knife or a hatchet or and then and then Peggy uses deadly force to repel that deadly attack. So that's like those are like complications and those have already been worked out. In case law that a variation of hypothetical I just use was addressed in a case called state be trombly back in 2002. So, what's curious about this statute is that it doesn't say anything about whether, or to what extent it leaves the common law intact. And that's unlike other statutes that that have various offenses to violent offenses for example, the aggravated assault statute which is 13 vsa 1024. The final sections, you know, it has a section where they talk about when a person using a deadly weapon might may have a defense and by the way, some of the language is quite similar to what we have here in the homicide statute. So you might want to look at that as well. So that there's consistency between aggravated assault and and homicide, but but the final section of the of the Ag assault statute says that, you know, the defense section that's articulated here quote will not be construed to limit or fridge upon defenses granted at common law. And so what what they are doing is some something I think was assumed. Not to be correctly but assumed by Ledge Council molests less section which is that this just file justifiable homicide statute doesn't change the common law defenses which are I again reflected in in the case law as well as the minor jury instructions, but the statute doesn't actually say that unlike other statutes so if you are looking. If you wish to preserve that the common law that's arrived originally in Vermont, especially with variations of the of self defense that such as the initial aggressor rule. And you may want to add a subsection to the justifiable homicide statute, so that it's clearly stated in the statute that it's not intended to limit that you know the law that the courts have developed over over the decades. Back to, you know, if the legislature intends to keep the criminal offenses in here which I my sense is that they're not necessary. It's not it's really the threat, or the reasonable, the reasonable perception and response to the threat regardless of what the underlying is that that you know that is what is really at the core of self defense. And at the core of the fence of others. So, and some section three which is you know has a lot of cross sections referring to the use of force standards that are required in in statute. But there there are there are there are other statutes that refer to law enforcement use, you know uses of force or that are a lot simpler, and that the committee may want to consider for example. And there is a, there is a misdemeanor offense in title 1313 vsa 401, or I'm sorry 4011 4011 entitled aiming gun at another that makes it a misdemeanor to point a gun at somebody except in self defense. And that's not defined in that statute by the way just says self defense, or quote in the lawful discharge of official duty and quote. So, you know, if an officer is using a neck restraint or force. That's lawful in those other statutes that are cross referenced in in the bill here. My, my question is just, would it be easier just to say that, you know, if the, the officer can do it if it's otherwise if it's lawful, and that would incorporate not only common law, but also the statute the statutory sections here. If you're just looking for simplicity, it wouldn't change the application of those statutes it just wouldn't, you know, it wouldn't cite them and and ignore others that might be enacted later, or, or, or raise a question about common law interpretations of when an officer is acting under color So I'll stop there with with those observations and then be happy to answer any questions. Are your questions follow. I think you've been fairly clear. Thanks. If I take away from your statements. 184 may not be necessary because it's already in common law. Well, I guess I mean the question and I think it's great that we have. We've got three. I'm looking now I see that Matt Matt Valerio signed on we've got really great witnesses on this I mean my question and I'm not a criminal prosecutor. So I come at this. I've come at this from the angle and civil rights for dealing with police use of force which isn't, which is something I'm quite familiar with and work on that issue in Vermont and a number of other jurisdictions. But I mean, you know, the larger question for me is, you know, is, is the statutory defense, even necessary in light of the common law that exists now. And the fact that the Vermont Supreme Court repeatedly articulates a broader standard of self defense, without inciting this statute suggests, you know, it suggests or raises the question of whether what's called the sometimes called the doctrine of despotism or obsolescence is in play here where the court just ignoring what the statute says and just relying upon the common law precedence and if the statute isn't really being used, especially where you're talking about application to the fence of specified individuals. Or, you know, reference to only certain crimes. You know, it's not clear to me that that it's really necessary. But I think it is. And that's the same as true with the model jury instructions when you look at the legal authorities they're cited for the model jury instructions. They look at the common law cases and don't really talk about the statute which is which is pretty archaic so. So I think that's the larger that that's one larger discussion. You know, I think simplicity I think everybody wants simplicity and clarity and consistency so if there is going to remain a statute it would be helpful. I think to include language indicating that you're preserving the common law doctrine. But kind of the meta question is if you're preserving the common law doctrine. And what is the statue actually adding and relatedly again I would I would recommend that you look at the aggravated assault statute which has almost the same language almost identical language that you're grappling with here about. You know, using deadly force in the defense of other and then they specify other people as justifiable homicide statute does. Okay, thank you. I just wanted to say I, I have. I find myself in line with the governor's position and Mandy Worcester's position in terms of this language that we have in front of us 184 being straightforward and fixing the problem. I worry though this is our third time with this statute, and I Julio's testimony is is tweaking that worry a little bit. I think what's happened the last couple of times is we've, we've started to range out from what we're doing. So, I would be all for sticking with the language of 184 as is and not going to other statutes or adding other paragraphs or maybe taking away that one paragraph but even something like adding the piece about conforming with common law. I think I would prefer myself not to get into new articulations or and just stick to clarifying that one piece. So, for what it's worth that's, that's where I am. comments questions. Julio, did you want to respond. Yeah, I mean, again, to get into the language a little bit. For example, in subsection two. That talks about. As I see that offensive others is that there are two conditions for defensive others. Which in this, this is narrower than the common law defensive others. So, in subsection two says that you can, the person has to be an imminent peril. Actually, there's three elements, it's necessary to repel that peril. In condition three in the forceful or violent suppression of a person attempting to commit these offenses. And it's both overbroad and under inclusive it's, it's overbroad in the sense that the question is whether. Well, let me just deal with the under inclusive aspect for example, so you can you can defend others if, if a person's in peril and these, you know, these enumerated crimes are in progress. And that sort of implies that if there are other crimes that are in progress and there's imminent peril, you can't invoke subsection two for example kidnapping is not is not listed here. And so the question would be in kidnapping the subsection to apply under the common law and the model penal code. And really the question is if you reasonably believe that the person you seek to defend is an imminent peril and essentially that they would be entitled to use self defense to repel the threat and if you so you can do it if they can do it. And it's, to me it's not that clear and because kidnapping, you know, and there are probably other violent offenses that that could come in person might be attempting to violate the human trafficking statute. That would be another felony. That's not mentioned here so the question becomes what person who is is trying to is trying to rescue someone from a violent threat and connection with a smuggling or trafficking operation. Does this paragraph to apply to them or not under the court cases I think in the common law I think it would. So I'm not sure how that you know what the value is here to identify the crime since. The point the point under these cases is that it's not the crime itself that creates a justification it's the peril. For example, you've heard testimony before about burglary for a building that may be unoccupied, or there are some forms of robbery that don't involve a weapon at all like a strong run just involves force so if you're pushing a college student down to take their their computer that that's robbery, but it's not it's the force that's being uses and deadly deadly or near deadly force. It's so and you wouldn't expect someone to defend that with deadly force that they just saw someone grabbing, you know, a bag from somebody and trying to run with no indication of a weapon or threat, you would be judging it by the threat that you know the threat of safety is the underlying offense. So, again, subsection to here I'm not sure what the value of it is if if the common law is broader is the intent to narrow the common law, and that's still not clear to me. I would think not I would think that's not the intent, but I'll stop there. Other comments questions. Just to say quickly, I appreciate your testimony. The question of the list. It's the same in paragraph two as it is in paragraph one for me. The question is really, is the individual an imminent peril. It's not how that peril is arising. It's the degree of peril and it is the reasonableness of your response to it. So, if it's a necessity to repair I mean the language is there and part of to which is that's talking about necessary to repel I mean if you can stop an imminent threat with non deadly force. Then it may be that you aren't able to justify the use of deadly force that's true. I mean we see that with law enforcement but just regular self defense or defensive others that's right. I mean, so, I mean, the, the language and I'm only speculating here because I haven't done a dive into the legislative history behind the law but it really does smack of the early common law where there were certain enumerated offenses or enumerated enumerated relationships which would just be presumed to be violent and deadly like burglary you know the old common law definition burglary used to be that it could only be committed committed at night to come as burglary. So, I think those are just relics and, and you don't really see the Vermont Supreme Court in the last couple of decades limiting the defense of self or others by the nature of the offense it's always examining what the threat picture is. So I think I would agree with that. Hey. Let's move on to Matt Lario morning that thanks for having me. As usual. As Senator bedding indicated throughout the discussion. Last year and with the passage of the, the bill. But dealing with the subject matter I was expressing concerns about, you know, leaving out defensive others as a as a potential defense now I believed that unless the legislature specifically said that they were eliminating common law that common law defenses would still exist. Regarding defense of others and I agree completely with the Attorney General's office that I that those that developed case law over a period of time is significantly broader than the statute that we're used to deal with. This is, you know, we're, we're in an interesting situation in New England really. We don't have monopenal code states we tend to cling to our common law roots. Experienced prior to coming granted it's 35 years ago at this point but in Massachusetts was that, you know that I mean they don't even have a rules of evidence all of their rules of evidence all their rules of evidence are common law rules of evidence. Statutory or court created rules of evidence and we sort of cling to that tradition. And what at some point in Vermont. There was an attempt and granted it's been decades, you know, many decades to set forth, and it might have been in response to some case that is now no longer within anybody's memory. There was an attempt to codify the justifiable homicide provisions that had developed over time in the common law. And so you end up with the bill that talks about the relationships and the like. Or you end up with the law that talks about the relationships and the like. And those relationships just by virtue of the even the discussion of the terms used to make don't make a lot of sense in today's today's world. But the concept of self defense and the defense of others and the ability to meet a threat with force sufficient to repel the threat. And under certain circumstances use deadly force is something that is very, you know, well embedded in the common line, going back, you know, hundreds of years. I didn't believe now when we talked about this as a tease, you know, you should have a defensive others in there. And, you know, how imperative is this how difficult, you know, what is the, what is the problem. Well, I believed that unless the legislature specifically said that we are eliminating all common law defenses and these are the only ones you get on this paper that those common law defenses still existed. But as Eric said earlier, some of the case law if you look at it is a little bit vague about what happens when the legislature acts, and whether it legislator acts in a manner that is intended to prior defenses common law defenses or they are, you know, whether it's when you read it broadly and you read it narrowly. This at least says, and then I do support the bill that there are that the, that the legislature recognizes the self defense in defense of others as part of the statutory scheme. I would, the only thing I would ask as part of the bill is maybe the legislature say that this does that this this law this bill does not eliminate common law defenses that are generally available. And so that you are specifically saying that we recognize this as a, as a defense and we do not. And we are not attempting by this to eliminate common law defenses that have been developed by the court over a long period of years. I think that, you know, one of the things that was going on last year obviously is that there was a response to cases and situations that were in the news, and trying to take Taylor bill to say well we don't want, you know, you're trying to tailor to look at those situations should they occur in Vermont. And that's always a little bit of a dangerous thing to do and it's one of those things that I always warn against in response to, you know, high profile cases or particular situations, rather than looking at the, you know, the broader policy issues, and really the history of, in this case, self defense and defense of others. I don't think that there's any doubt that under common law, there is a defense of others that is available. Although I could see with the bill as it was passed that a prosecutor who could read it in a particular way would be arguing that there is no defense of others available, because the legislature eliminated it by creating the bill that was there last year. So, I do think that obviously, I mean, maybe it isn't obvious but I think that it's the defense of others, defense of self defense of others and defense under particular circumstances. You know where there's an imminent serious threat is perfectly acceptable. I think that most people would say that I have a right to defend others and my family and my friends and, and, and the like if they're confronted with you know, an imminent deadly threat. So we're supportive of the bill. And I, I think that Senator Benning's small but important addition in this bill clarifies the issue regarding defense of others. My only suggestion would be to for the legislature to specifically identify that this does not this bill does not intend to eliminate available common law defenses that have been developed over the years. Thank you, Matt, actually reading from the letter that Representative Radnice sent to the governor. Final paragraph is self defense and defense of others under the common law are available to intervenors now will continue to be available. 845 becomes law. It was not the intent of the General Assembly to limit the application these current law defenses, nor does H 145 have the effect of limiting them. The legislative intent. Right. You know, to the extent that anybody in the in the as a trial where could find that. Yeah, it could be put into this bill. That's, I think what you're suggesting is something that nature would be added to this bill. Right. Then they would see it. Hopefully the judges read the statutes and just curious. I'm, I'm kind of setting up our next witness. I would say both of them. I'm glad to hear that. Are there questions for Matt. Thank you. Thank you. A judge zone a great segway to hearing from you. Good morning, Tom son a chief superior judge. So I've listened this morning and I first want to say that the determination of whether you want the common law to continue whether you want this extended for defense of others as a policy decision. The way I'm looking at this is consistent with how some of the prior speakers have looked at it. And I'll start with Senator Benning when he said it was muddied up. But I think that what we're seeking is clarity. And when we talk quite a bit today about common law, I think it might be helpful to just let you know what common law says about defense of others. And in 2016, the Vermont Supreme Court said that defense of others is essentially an extension of the self defense instruction in that the actor may do in another's defense, anything the person himself may have lawfully done in the circumstances. Thus, the prevailing rule is that one is justified in using reasonable force and defense of another, even a stranger. When he reasonably believes that the other is an immediate danger of unlawful bodily harm from his adversary, and that the use of such force is necessary to avoid this danger. As with self defense, even if the actor entertains these reasonable beliefs, he may not use more force than he reasonably believes necessary to relieve the risk of harm. And so that's the common law, the backdrop upon which section 2305 comes into play. The question that has arisen, however, is, well, does 2305 change common law somehow. The Vermont Supreme Court in 2006 wrote that the common law is changed by a statute, only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter. And I would note that when the courts are looking at statutes, legislative intent is an important component, but if the plain and unambiguous language fits something, generally that's where it stops, unless it leads to absurd or irrational consequences. I also note that to the extent that the chairs of the committees have indicated legislative intent. While that does certainly have force, the court has to consider that there's 30 senators and a number of House of Representatives members who may have shared that intent of the chairs and may not have. And so we really have to look at what the legislature as a whole when an acting a statute expresses as its intent. Mr. Thompson referenced section 1024, and that's on aggravated assault. And when I was looking at this statute for today under justifiable homicide, I also looked at 1024. And so what you have right now is under section 2305, a situation where you do not clearly say that you are maintaining the common law defenses. Yet a judge looking at it would say, well, wait a minute, the legislature in 1024 said it was clearly maintaining those. Why wouldn't they say it in 2305 if that was the intent? And the statute itself also doesn't talk about third persons, a defense of another. Well, why wouldn't the legislature have said that? Maybe that's their intent to change common law. And so as far as clarity, the change that is being advanced by this committee, I would support. I think it is important to make it clear you don't want any question about this. And to the extent that there could be a question about whether even with that change, there may be an intent by the legislature when it votes on this to change common law. I would concur with Mr. Valerio and say that that section from 1024 under subsection E that says this statute shall not be construed to limit or infringe upon defenses granted a common law. If that is what this committee intends to put forward and the legislature would intend to enact, I would suggest making it clear. Senator Sears, you shouldn't have to write a letter to the governor to say this was our intent. If we can get it in the statute, I would suggest that's the way that we do it. And that way that we are sure that the courts are given clear guidance and everyone knows what the rules are. Thank you, Judge. Actually reading further into the letter of May 12th to the governor, we cited State v. Buckley, the 2016 that you just cited. And, you know, it couldn't be clearer that the actor may not use more force than he reasonably believes necessary to leave the risk on. I suppose it should be here or they believe, but by and large, we're going by Buckley. And so either we cite that or make clear that we're not impacting current common law. That would seem to clarify the issue, Senator Bennett. And I think it's actually fairly clear you may not you, you can use self defense but you or, you know, in defense of others but you may may not use more force than reasonably he reason they reasonably believe necessary to relieve the risk to harm. So if, if you want somebody and they're knocked out, you don't go continue to kick them. That's how I read that. So I think it's all right in the letter. And if you want to just kind of put in the statute that was in the letter. Thank you. Thank you. Any questions for the judge. We're going to see you in a few minutes I expect that. So, yes, 11 o'clock. Take a break or hang in there for the next 40 minutes. Thank you. Thank you. Our final witness today is Evan meaning from the Department of State's attorneys and after Emmett, after Evan speaks will probably take a break and then talk a little bit about the bill and and then go to our confirmation at 11. Good morning for the record my name is Evan mean and I'm a deputy state's attorney and the executive director's office of the Department of State's attorneys. I'm going to try and keep my testimony brief because many of the other witnesses covered much of the important information related to this topic. But I can say that the department supports the intent behind s 184, which is the bill that that is presently before you, and also the intent of act 27 as articulated in the letter from Senator Sears and representative grad. But it does think that, you know, s 184 does a nice job of trying to clean up some of the language from act 27. And the department agrees with judge zone a that it would be good to clarify the intent in statute so that we we don't have to try and rely on that letter. Senator Benning was correct that I had offered up some some language that's slightly different from that that appears in s 184. And I'm happy to explain that language, but ultimately I think s 184 does also accomplish albeit in a different way what the department's language was trying to accomplish. And so we support the bill. The language that the department offered up tried to do two things. The first thing it did was in subsection one that we've been talking about where it has that list of all of the people that you're, you're permitted to use deadly force to defend. We just suggested getting rid of that list and just having the language read in the just and necessary defense of the person's own life, or the life of another person. And I would anticipate that courts would look to existing case precedent to determine what just and necessary is. We think that that language is more consistent with the language and some of the model jury instructions that have already been referenced and some of the case law that's already been referenced, and gets rid of some of that antiquated language. That's in the list of enumerated relationships. The second thing that we tried to do was which s s 184 does is make it clear that, you know, for example, if I if it's late at night and I'm leaving work, and I round the corner and I see another criminal sexually assaulting or attempting to murder a stranger who I don't know. I don't need to wait until the alleged perpetrator puts me in fear of imminent bodily harm in order to respond with deadly force that I can just go ahead and defend the alleged victim. What we tried to do in the manner in which we did it was clarify that when it comes to burglaries and robberies. It's not. It shouldn't be, you can just use deadly force to repel any burglary or robbery. It should be those burglaries and robberies that are committed in a in a violent way. Obviously that's it's a policy decision for the legislature but we were trying to address in a cleaner way the same concerns that act 27 was attempting to address. So the language that we put forward was was I think pretty simple. It just said suppression of a person attempting to commit burglary or robbery with force or violence or murder sexual assault or aggravated sexual assault. But but again the department is fine with the proposed language in subsection two of s 184. I'd like to just spend a minute talking about why we might need both subsections one and subsections two. We've always viewed them as operating somewhat like a Venn diagram where they're you know two circles overlapping somewhat and there's some conduct that is arguably covered by both. For example, you know subsection one talks about defending, you know, your life or the law or someone else's life, while subsection two talks about preventing a murder. So there's there's some subject matters that are addressed in both arguably in both subsections. However, I'm also I think like some of the other senators have mentioned a little hesitant of opening up potential can of worms by by amending these cases too much and really trying to get them to align with the the case law that was discussed by judge zone a senator Sears and some others. So the department is is happy with s 184 we're very glad that you're taking it up and making the correction that you're making. We would support eliminating the list of enumerated relationships and subsection one. But if the legislature decides not to do that. I don't see that we would be making any huge concessions in terms of how the Supreme Court and our other courts apply the doctrine of self defense. Thank you. Other question for Evan. Senator betting. Julio brought up the question of the list in subsection two. And I'm still wrestling with that. If I'm seeing somebody literally being forced into the trunk of a car. That doesn't fit into this particular lists. Yeah, it. Yeah, you're I'm just looking for your reaction. So I mean I guess in that situation. There's two things that I guess we would have to think about right the first is if if I see someone being forced into the trunk of a car. I might instantly go to kidnapping. Right. And then you know assuming that I was a citizen who was aware of this statute I might be thinking. Oh boy this is a kidnapping I can't use deadly force you know. But there's two things we have to think about as I mentioned the first is, you know what circumstances surrounding that incident are and would they lead me to conclude that that person's life is in peril. If so, then I may still be able to use deadly force. But let's just assume that that's not true I don't have any reason to believe that anything other other than a kidnapping is occurring, and the person's not going to die or be sexually assaulted as a result of it. That does not necessarily mean that I can't intervene and use force to prevent that kidnapping from happening. This statute is only talking about a justifiable homicide. So it might mean that initially I can't just walk in and and shoot that person. But as you know I think it was judge zone I mentioned I might be entitled to use any force in the defense of that person that that person might be able to use to defend themselves. And as a couple of witnesses have mentioned there, there are model jury instructions that we have in Vermont that are derived from case law that explain when someone can use non deadly force in the defense of someone else. And sometimes those jury instructions are a really good cheat sheet for learning what the law is. What might end up happening in your situation is maybe I can't use deadly force right away. Maybe I try and insert myself in between the victim and the perpetrator to prevent the crime from happening. And then let's say that the alleged perpetrator escalates their use of force and they whip out their gun and say, I'm taking this person one way or another, right. At that point then I might be able to meet that force that that deadly force with deadly force it's sort of like a ratcheting up in that way you you know if some if I see someone punching someone I can't just whip out my gun and shoot them. But I might be able to use some form of reasonable force to resist that. And then if they ratchet it up, I might also be able to ratchet up. There's a very over simplification of the existing law related to defense, but that's, that's generally how it tends to work. I think there have been many cases where car jackings have been attempted, and nobody realizes there's a baby in the backseat, for example. And the person that whose car is being car jack may not be in any imminent peril and nobody would know that but that doesn't prevent you from taking steps to prevent that car jack. I think it's a clearer example. You didn't nobody knew there was a baby in the backseat. And again I mean these are all situations that you know the law has to apply to the unique tax present but yes you're right there's all different types of situations like that where you know it's a fact case specific what level of force is reasonably necessary. It's not always going to be deadly force. Clario has a comment or question that unless your hand is just up by mistake. But being able to get it down as a whole other story. Peggy just did it for you. I did it but you know had to find, we use so many different platforms online nowadays between playback zoom and whatever I don't know where the right button is sometimes. Anyway, I maybe this is just the way my mind works but I, I appreciate what the state's attorneys are offering here. I'm a big proponent of keeping it simple. And it is the, you know, Senator Benning's bill as it is does exactly that. It does not do, you know, any harm or trauma to longstanding case lie. The scenario that State Attorney Mead has talked about to me in retrospect, you know, if you're a jury looking at something after the fact. It's very easy to, it's not easy to try to deconstruct what was going on in the minds of people at the time an incident was going on. Where you, you know, you're trying to, you're a respond to split second sort of decisions where you believe that there's deadly force might be necessary. I think that I would not want to tinker with that. And, you know, one of the things about relying on model jury instructions is they are amalgamation of case law that has come down over the years. When, but when you are developing case law, particularly for homicide trials. Oftentimes that, I mean, I've been to say jury instructions for homicide trials. It is very fact specific to that particular type of whatever that situation was. And so to pull them out of a model situation can get a little bit dangerous because, you know, it's like that, you know, the chocolate shake is tasty and the vanilla shake is tasty. The strawberry take it to, you know, strawberry shake is tasty. But if you mix them all together, it's not so tasty. And I think that that's what ends up happening when with some of these model jury instructions people of committees have looked at them and kind of pulled the part that the committees like the best. And I know Judge Zone was one at one point was one of the either chaired the committee that produced one of the sets of model jury instructions. But it's very much a committee process as opposed to a on the ground case process. And so to me, if you set forth the appropriate simple policy concept, then allow the courts to fashion the jury instructions consistent with precedent and with the statute, you are going to have something that is more predictable going forward and that's what all lawyers I think want. What Evan is talking about a little bit I think is almost a, a bit of a suit bringing a civil standard into this. You know, how, how a negligent homicide or a wrongful death might, you might look at it in different gradations, but it's different to me in a criminal situation. And I'm just hearing that having listened to his testimony, I'd have to look a little bit closer closer at it, but that's what I'm hearing. I think the betting approach in this, to me, keeps it simple and easier to apply what the general concept of what the legislature wants to get across, as opposed to a more specific direction that might, might be confusing. And when you're looking at it in terms of prior case law, common law, like, so I bottom line is I prefer a simpler approach, and I like the bill in that regard. Thank you. We're going to take a 10 minute break till 20 minutes of 11. And then we'll come back and Evan will pick up with you. I see you have a comment question and try and as does Senator white, and then we'll try to let Eric know what we would like for a second. We'll go around with this bill next week when we can fit it in.