 You are with the House Government Operations and Judiciary Committees. We are back in session here this afternoon, I think with a more focus and intention of working on S219. We have taken a job through and talked about each of the sections and I think there are a few specific areas that we need to come back to that is the intention that we would talk about about these things right now so that we can get some another draft in front of the committees. The question at hand immediately is around body cam data policy. Maxine, you've got your hand up. Right, for two things but in terms of this I really appreciated what Hal had said about having a non-governmental organization that has the capacity and I was thinking along those lines, could ACLU host it? I don't know but I do think it is really important to have a non-governmental agency so I want to second that. The other thing I wanted to say is I wanted to call everybody's attention to Representative Ann Donahue since some more testimony which I really appreciate and find helpful and it might help us move forward in terms of our intent language and some of the issues that we are still grappling with. It may have only been emailed to you and me Sarah, I have to look. I want to make sure everybody has access to that. Great, so Ann Donahue and Brian Tina have been a part of or following along on these conversations because they were both original sponsors of bills in the house that touch on many of the subjects that we're working on here so we had invited them to be paying attention to what was going on and sharing their feedback with us. So I believe we have Tanya Marshall with us and Tanya on the subject of body cam data policy where we are as you have just heard moving towards the idea of finding a convening entity who can help flesh out some of the issues around body cam data in order to bring that recommendation back to the legislature and I would welcome you to share your thoughts. Sure, so Tanya Marshall State Archivist and Chief Records Officer for the State of Vermont. I'm also the Director of the Vermont State Archives and Records Administration which is in the office of Secretary of State and I'm not sure what both committees are aware but Act 172 of 2006 actually did require the State Archivist to work with the Department of Public Safety and other statewide criminal justice agencies to and I'm going to look sideways on my screen if you see me doing that just to quote it and I did send it out to Andrea is to have and develop recommendations and action plans for these agencies to meet their records retention and evidence requirements related to body worn camera footage and that work has actually been done so underneath our statutes for the Vermont State Archives and Records Administration we we established retention requirements for all public records that is in Title I 317A that is our charge that is not something new per se has been in the books since 1937 so different entities have done that over time and now that sits with the Vermont State Archives and Records Administration so we do establish record schedules that's what it is it gives a life cycle for the records and information it doesn't matter if it's paper electronic digital or data and last year this came up in regards to house appropriations and when there was a request you know to allocate funds related to body worn cameras specifically to Department of Public Safety and State Police so we worked a pretty active engagement working through all of that because they already had dashboard footage so as part of that process we've developed record schedules they have been issued to both state and local law enforcement agencies so they're out there we also worked with the Department of Public Safety on a very comprehensive records and information management policy that is specific to you know what they currently have so they don't use body worn cameras but they do use dash and work through the retention based on different incidents different different cases how might something might go for internal review a number of different scenarios for that and that particular policy has been circulated out through I think public safety to local law enforcement and so we've been working with them too so in terms of the way the schedules do work is that if there is a new statutory change or some legal requirement that requires a change in management then we work with getting that particular policy document updated and and set forth and then work with the public agencies that are affected by those changes but this work has been done when it comes to retention management those schedules also include any exemptions to public access and then what we do is that we have the high level policy this is the record schedule that's required under law for each public agency if they want to destroy records they have to have that particular schedule in place approved by the state archivist and issued by the Vermont state archives and records administration and then what happens from there if there is a change then we use the internal policies on the day-to-day management aspects for that information and we'll help the public agencies address their policy changes as well so hopefully that provides some background because it was something that was required through the big bill in 2016. Thank you Tanya. Any questions from either committees on what we've just heard? All right I'm not seeing anyone diving in with their hands to raise. I noticed that Ann Donahue's email I think has been posted on the judiciary page is that what I'm seeing in the chat box here? Well she had testimony yesterday but also testimony this morning so I want to make sure that her additional testimony from this morning gets posted. Okay so let's make sure that we take a moment to review that Martin. Yes I was wondering if Tanya if if you've had an opportunity to review the the body the model body worn camera policy of Liab the law enforcement advisory board the section regarding storage and documentation and if that's consistent with I assume that that's consistent with? Yeah last year we when it when it came up through house appropriations I worked with the through the commissioner of public safety and so we reviewed that part of it but we haven't engaged back on that front because I usually use the agency and department that's most directly related to engage so I haven't reviewed it recently since the work that we've done last year but the new schedules were issued so those schedules are required for all agencies and departments they have to comply with the record schedules issued by the Vermont State Archives and Records Administration to destroy any record so I'd have to go back and review it unless Department of Public Safety has already done that I'm not I'm not personally aware what has happened since the schedules got issued in the Department of Public Safety kind of worked through its own policy. All right thank you. Yeah I'm happy to do that if that's of interest to have some feedback on that. All right other questions from committee members? Okay so I think what I'd like to do is is ask James Lyle if he would share thoughts with us on on a non-governmental convening entity who could help help establish what what various stakeholders think is an adequate policy. Hi sorry I'm just logging in a few minutes late and just I just want to be clear because I have a couple minutes late we're talking specifically about an adequate body camera policy. Yes and understanding that you testified yesterday that you have a model policy what we uh what the committees here discussed this morning was that uh that we wanted to convene of a working group to make sure that we've got stakeholder input and that it's not being driven either by DPS or by you know any particular government entity but that it is getting input from from both governmental and and citizen led groups. Yes we'd absolutely be interested in in exploring that and and leading that effort if if called upon to do so. Okay that's helpful thank you. Committee members thoughts suggestions discussion about this concept? John Gannon. Thank you. James how long do you think it would take to put together policy for Vermont and especially getting enough different communities involved in that process? Well as as I mentioned yesterday we submitted with our testimony yesterday the ACLU's sort of national recommended model legislation for regulation of police body cameras. We would view that as as a starting point or at least we would offer it as our recommended starting point and but I guess depending on on what kind of process is recommended or set up um you know I I don't personally have a lot of experience convening stakeholder groups I I think we would be open to um you know a process that is that is reasonable and obviously inclusive of diverse viewpoints. I mean we don't have obviously unlimited capacity um we are a small organization in the state although we do have as I as I said yesterday extensive experience with this with this topic. So I mean I think we would be open to any number of models but as I say with the the policy that we submitted with our testimony we you know that's the policy that we've developed over years and revised it as we've learned through the years about some of the things that are needed it's not to say it's necessarily perfect um or that you know further inputs aren't needed. Great now and I've read the policy it's very extensive and obviously yesterday in testimony you offered to bring in experts to help craft a Vermont policy so I mean that would be helpful but I guess your only concerns is about convening a group to make sure we get the right voices. Yeah you know there I would welcome inputs there as well just in terms of how to structure it what the timeline would be um you know we are obviously a non-governmental small organization so I'm open to to really anything um but I think I would look to others with maybe more experience convening these these kinds of groups or task forces or what have you as to how how that how that might run. Maxine go ahead and jump in. Oh thank you but I there are other hands up before me so I don't I don't mind waiting. Okay I've heard it. Thank you. Um so uh I lost my train of thought so the committee or the both committees are kind of uh from what I've heard are leaning toward uh department of public safety not not convening a group um you know if that's the will of the committee that's the will of the committee but and uh and from what not your words but from what I heard you say is that you wouldn't feel comfortable convening the group would you feel comfortable with somebody like the uh secretary of state uh convening the group? I'm sorry is that a question to me? Yes oh I'm sorry yes sorry sorry I just I didn't hear that part I apologize um I didn't address you at the beginning I should have quite all right um um yeah like I say I'm I think we'd be open to um um to just about anything um the secretary of state is is a possibility and and obviously they have expertise on matters of you know transparency and sort of the overlap with public records that I think could be valuable not to volunteer them in their absence um and you know I think it's possible that we could um act as a convener or or a host or you know uh lead the effort I don't want to rule that out I just um you know again I don't have some I could speak with my colleagues about this further about whether we have the capacity and experience um to do that or whether like the secretary of state to do it I'm definitely open to uh to exploring those options yeah and I brought up the secretary of state because it was brought up earlier today it's it's not my thought so um to me the the the important thing is is uh to have uh everybody represented uh that needs to be represented and everybody who every uh community that is represented is listened to you know and it doesn't matter if it's you know if it's law enforcement or uh community but um that that would be the most important thing to me yeah I I agree and I think it's also just important that you know the legislature retain responsibility for um signing off on and reviewing the policy and that you know that no entity whether it's law enforcement or anyone else have necessarily the final word um on oh definitely definitely compiled so maybe that goes without saying but great thank you thank you ob hooper uh I would just be repeating but as long as you know it's as much in neutral arbitrary as possible uh convening and as long as both sides of the camera front and back are represented I think that's where we should end up maxine uh so one question is whether or not this is being addressed in s124 and uh and so how and then another thing is um if there's some way that if we um given that we want to make sure that we want to get impacted communities involved in this process um I would hope there's some way for them to get compensated and um and does that mean we therefore need to create a board or a task force um with appointments in order to to do that so it's more it's more your wheelhouse and government operations yes it would it would require us to designate that that there should be per diems available and and then of course that would trigger this bill to go to appropriations before it goes to the floor can't do it no uh commissioner shirling has a hand up thank you uh madam chair uh just briefly um I am not familiar with the background uh from 2016 uh on the body camera policy development uh as I was in commerce at the time um but I've read through the ACLU draft and it strikes me that either what we've got in uh the state police policy um largely mirrors what's there and anything that doesn't I think we're pretty close um so you know I don't think that there's a tremendous amount of room if any uh between that model national policy that uh that James has shared and the the current best practice I think we've got to go through it a little bit further um but with that as the background um you know I would I would also urge the committee not to abdicate the role of government in developing our own policy um again I don't know what the history was from 16 um and why there was daylight between various components um I think there's far less daylight if any uh at this stage but I also would urge the committee not to outsource um you know core government functions including developing our own policy um to external stakeholders in its entirety engaging stakeholders and ensuring that that feedback has taken into account is essential but abdicating that role I think is a bit of a slippery slope thank you commissioner um Martin um yeah I I guess uh just a response to that is that as long as a legislature would be uh having final approval of a policy we wouldn't really be abdicating the government's involvement but having said that as well uh it's see I mean we're having difficulty trying to figure out who has the capacity and who is who can do this and and we have I think there's a couple options there are downsides to them uh as far as entities that already exist I'll start with the one that's less desirable and that that would be the the council the Vermont criminal justice training council um and in the second one it would be the racial disparities in the criminal and juvenile justice system advisory panel or our DAP I know that there are both of those are are heavily weighted to uh to government involvement but we could have one of those entities uh be convening this and make it very clear that for the purposes of reviewing this policy and coming up with uh I mean a separate suggestion is where we start there but but let me finish this part first it is we can ensure that ACLU has a seat that other entities have a seat uh I mean we can go through and racial justice alliance I mean we can I'm sure that we can come up with the list of those that uh and leave it open for others as well but just so we have that entity that can actually convene this and has the capacity to do so but then make sure for the purposes of review of this policy that we we have a broad inclusivity um the other point I would make is that it's rather than just starting from scratch and and this would come in part because of what is in the s124 uh which uh as I understand how was passed the senate is that the key language and really I think the only language regarding this is honor before January 1st 2022 seems a long time off each law enforcement agencies agency shall adopt follow and enforce the model body worn camera policy established by the law enforcement advisory board uh so you know for this for what we're doing we could have uh the start being a review of that policy uh with the appropriate people at at the table I mean if we want to kind of really put some sideboards around this I raise that as a possibility I haven't completely thought it out but just for discussion reactions to that go ahead James sorry I don't know if there's a uh an icon to raise my hand or if I should just do it the old-fashioned way but in any case I mean I just wanted to you know respond to that point um I think Representative Laund is is right that we absolutely need not and should not start from scratch um we I mean we feel that we have a strong policy um there is the LAB policy um which you know we responded to that and identified the issues that we had with it um and you know whether there are only a few uh points of contention between our policy and our position and that of the LAB policy or whether there are you know fewer or more issues or you know wider gaps between them um you know those might be starting points or reference points um and I I mean I would absolutely encourage and I think others even over the last couple of weeks have testified on you know additional issues that they have I have identified either with with our policy um or body cameras in general so I think it's it's absolutely important to invite in other stakeholders to comment on either of these policies but it's just to say I think I mean that could even be um done in the course of some hearings as opposed to convening an entire stakeholder group I mean you you essentially have two policies that have significant work has been done on both of them and maybe they're far apart maybe they're not all that far apart as Commissioner Shirling suggested um but you know we might be closer to having a good policy that there's broad consensus on I think maybe with some additional input and some more time to vet those you know we might not need to convene another task force or certainly not start from scratch as as Representative Lalonde said thank you I can appreciate that Rob Leclerc has his hand up um thank you Madam Chair um I I certainly agree with the the concept that we're talking about here is kind of a public private partnership um I'm not sure that I'm comfortable that the ACLU should be the automatic default agency that we we go with here um I don't necessarily view them as totally impartial I would like to know what other organizations are out there that would meet that criteria that have the ability and the bandwidth to do this and I'm not sure that using their policy as the default to start with is the right way to go either we have our own body cam policies I know with BSP and other agencies so I'd like to know what other options are out there besides the ACLU thank you so you know it occurs to me that um um a subcommittee of these two committees could certainly do some work on this um as effectively and um and we could um you know be the uh the conveners with the intention of uh hearing from a broad group of stakeholders I guess so I'll just flag that as um as a possible model of how we move forward with this um but I guess I would defer to Maxine to to give us sort of a sense of where you think we should move at this point in our consideration of um of this bill should we keep zeroing in on the the plan for developing a body cam policy or should we take a step back and look at some of the broader issues um I don't know if it's possible to hear from from Betsy Ann but if I wonder if it would be helpful to know what's happening in this or happened in s124 yeah I see that Betsy Ann is with us at the moment and um so Betsy Ann can you help us understand what s124 um says with respect to body cam policy hi everybody I'm sorry my screen is so blurry um so the bill s124 that the senate disapproved yesterday would say that starting on January 1st 2022 every agency shall uh adopt follow and enforce the body camera policy that the leab established in 2016 um and that every officer would be required to follow that policy but the way that we the committee reads it and understands it and I as well as that the leab policy applies if an officer is given a body camera and so it is not unnecessarily a requirement for all officers to use a body camera so it's just if an officer is given a body camera it has to be used in accordance with the leab um model policy also included in s124 as senate proposed to amend it yesterday is that there will be progress reports on miscellaneous issues um that would have to be provided to the gov ops committees and one of those is a report back on whether there should be any changes to the leab model policy before that requirement to comply with it takes effect on January 1st 2022 questions for betzian marketing so so what what is the entity that's uh looking further at the policy that's going to be reporting back it it is the leab and then I think the language that they voted out um requires the leab to discuss with um at least several different relevant um named entities in determining whether to propose amendments to the leab policy so it's mostly on the leab but with some requirement to discuss it with other entities before making any recommended changes to the policy martin is that is that a help yeah yeah I think I found the language from the from the bill um that yes yeah I see that that specifically names ACLU uh that they have that the leab has to consult with the ACLU I know I guess the question for uh for james is is whether you've had a chance to look at this language in 124 and if that's where we should be dealing with this issue um so I haven't seen I'm not looking at the language right now um my understanding so our senior staff attorney lia Ernst was the our lead on this back in 2016 and so she could speak to this in more detail uh than I can and and she she could be available to do that if called upon but my understanding is that yes the ACLU was consulted on somewhat after the fact and our recommendations were um not not taken up um again lia Ernst can speak to that better than I can um but I think it goes to sort of the the issue that I was you know speaking to yesterday um I mean if the leab is the starting point uh you know other stakeholders need to have meaningful consultation you know we would say it shouldn't be ignored and ultimately it's the legislature's responsibility to to determine if the leab policy is adequate just like it would be the responsibility to determine if the ACLU policy is adequate um um I'm not uh I mean the ACLU obviously is in favor of broad transparency and accountability so to the extent we have an agenda that is it law enforcement uh has its own agenda which tends to be less in favor of transparency and accountability to be blunt um so I think you know whoever it is that's drafting the policy or holding the policy has um has inclinations uh towards what that what that policy should be and where on the spectrum of transparency and accountability and due process and those kinds of issues uh we should fall um but um you know again I I think um whether it's our policy or the leab policy we do have a lot of work that's gone into it I also think um it you know this is not obviously the only issue that we're going to have to be working on you know going forward and I just don't want too much uh oxygen to get sucked up by a body camera policy which for the state police um which although important is a small fraction of what needs to be done so I'm also thinking about that in terms of our capacity to participate in the process when there there are many other police reforms that are urgently needed that we need to be moving forward in addition to a model body camera policy uh commissioner shirling has has a question and then I'll go to tanya marshall thank you madam chair just two additional side notes for the committees um one just to note that the leab exists by statute to advise you and the governor and me on policy so just for background also in 124 uh there are updates to the makeup of the leab that have uh been proposed to widen participation thank you um tanya marshall do you have thoughts on what yes thank you madam chair um i'm just i'm just focused on for the secretary of state's office which i'm part of you know we do we're we're pretty objective in how we do records management and records and information management and so in regards to that part our charge is to make sure that we're using industry standards and best practices and so in terms of the committee when it comes to retention and disposition of records on that work I do want to clear clarify that was just done within the last year and solidified so um I would want to have active involvement or to kind of have clarity if the Vermont state archives and records administration although it would be very unusual in statute to exclude us because that is our role um so and um so I just wanted to kind of point that out when it comes to retention um in disposition regardless of format is that um the work that has been done recently on the records retention schedules and walking through we're based on industry standards and best practices as and in addition to Vermont law those schedules are just revised and issued out in um August of 2019 um and the policy went into effect in terms of the records management policy which is inclusive a lot more law enforcement records um the policies that we're starting to see come out early this year so it's just January that they start to get implemented within the law enforcement agencies thank you thank you uh questions from committee members so we're building a plane here while we're flying it um Maxine exactly so if I can just sort of say it was going through my mind um just throwing this out for further discussion because I do feel that we are somewhat stuck so so what I'm thinking is I wonder um in uh 2019 section six um I think that's a good statement of policy so maybe you know have that look at 124 I um I haven't actually physically looked at the language but um wondering if we mirror that language um here in this bill some somehow we need to reconcile and then and then make sure in our intent when we talk about involving impacted communities make sure that we are very clear in terms of um that we want to get input on whether it's use of force and new crime policies but but you know somehow make it make it clear that that we want to have this discussion be inclusive in terms of what um policy to to adopt um another thing I'm thinking of is when we did the fair and impartial policing years ago we had a model policy and we said something like every department shall what was it um adopt you know at a minimum certain elements um of the model policy and so maybe something like like that and that you know that the stakeholder group would would look at um ACLU and and other policies in determining a model policy so that's what's turning around in my mind right now I can appreciate that yeah and any other thoughts on that um I just asked a real quick question can can uh Betsy Ann send us the language that actually has been passed out in the Senate I couldn't really determine exactly what language on 124 yeah Betsy Ann it might be helpful if you just extracted that and sent it via email to both committees I know that folks following along from the public can probably um get the current copy of 124 um from the Senate calendar but we need to zero in uh exactly on that hello I actually just did I sent the updated amendment so we don't have a full as past uh Senate version yet that should happen soon but I just did send to uh both committees the uh follow-up amendments that the Senate passed yesterday to s124 so you should have received that in your email or uh will shortly and the body camera language if you're speaking to that specifically now there is on page four the new requirement for agencies and officers to follow the leab body camera policy starting on July 1st 2022 and then the language about the progress reports on miscellaneous law enforcement recommendations are in the fifth instance of amendment which begins on page six and then body cameras are specifically addressed starting on page nine line 11 and just to confirm it it actually is just the leab alone that is to report any changes it deems necessary to that policy but it goes on to say that after consulting with the secretary of state the human rights commission aclu and other interested parties the leab is to specifically recommend policies for responding to public records requests for body camera footage including any recommended timelines to respond how and what footage should be redacted length of footage retention and storage and can I just real follow up quick follow-up question for Betsy and uh what about the language regarding the makeup of the leab is that in this or is that elsewhere that was in the underlying s124 strike all amendment proposed by senate gov ops and I can provide that to you also but it was just adding additional law enforcement members to the leab including the chief of capital police and law enforcement officers from dmv and I believe maybe fish and wildlife but I think it was just adding law enforcement members to it well that was wrong direction but okay thanks uh Selena um yeah I was actually gonna respond to something maxine said um prior and I may not have fully understood you maxine but I think you you when you were referencing the fair and impartial policing and you talked about sort of the the the baseline model policy um that's that folks were met you know had to adopt at a minimum I I wasn't um on the judiciary committee when you all developed the fair and impartial policing the initial fair and impartial policing legislation but I think that floor sealing thing has been um really problematic actually and so I would I would advocate that if we're going to um you know beyond the Vermont state police if we're gonna push for a adoption of a model policy that we just it just be the one policy that we think is actually the right policy and not sort of give those kinds of you know up and down outs and that also just caused confusion then about how what the feeling could be um so just my two cents on that thanks Selena Tom had a hand up earlier go ahead Tom thank you um just what's going through my mind is that uh the commissioner was talking about the um some policy that he has and that I don't know if he wrote it from the ACLU's model policy but he did mention that a lot of it um mirrors uh what they're doing so it almost makes me wonder how much work we really have to do on this if if he's and I'm gonna I know I shouldn't assume but I'm gonna assume that a lot of the stakeholders and uh you know community members that may be involved in this would probably lean toward what the ACLU might want to do and what's in their model policy so it just makes me wonder again how much work there is to do and if uh you know if the ACLU could look at the policy that DPS has and we may have very few points to you know to go over and debate it may be a lot easier and a lot quicker and a lot simpler than we're making I don't disagree with you I guess on that um and and I think the but the the reality is that we don't uh we don't have the ability to figure that out right now in the context of this bill and so what we need to do is set a direction and a plan either um either in the intent section here um or in some other way so Maxine what are your thoughts on could that be part of the intent that the ACLU almost said UCLA ACLU reviews the policy that DPS has in place so Maxine can I give you um facilitation of this because I've got to jump on to a call with the speaker for about five minutes on a CRF bill so I'm going to hand this over to you and I'll be back to help in a moment great thank you so so what I'm thinking is uh take a pause on this because I think it'd be helpful if we could if we could read um s-124 and the um relevant provisions and uh let me just clear our heads a little bit about that um and come back to it uh I know that Bryn um does have a new draft of the um of the bill the um you know given the amendments discussion we had um earlier so I'm wondering maybe if we could go take a look at that I think it needs to be posted and sent to us and uh you know make sure that's Mike Shirley I apologize for interrupting I'm not going to be able to with you again the sorry go ahead I just want to flag that in section six that first paragraph that specifies when the Department of Public Safety is to use video cameras is problematic it is incongruous with both our existing policy and the ACLU's model and would create recordings in a variety of different scenarios that I don't think you intend to create recordings so I would put that piece on hold okay thank you um James I see uh do you want to can you comment please do you want to yeah yeah I would agree with that um the the I believe both policies are pretty clear about when cameras should be on and when they should be off um and and just the only other thing I was going to say is um just to draw attention back to one of the documents we submitted yesterday which was our response to the LEAB policy which lays out um you know about a dozen objections or things that we feel are missing um and so that um that is there um and possibly needs updating this was a several a few years ago anyway um and lastly I think I don't know if this is a viable option but one thing I think we suggested yesterday was that um you know our view is that there shouldn't be body cameras until there's a good policy in place so um I don't know if there's if it's possible to change the language to um you know to to move forward with body cameras but just make clear that until the um you know legislature reviews and finalizes a model body camera policy looking to LEAB and or ACLU um you know until such time as that happens the these body cameras won't be in use or something to that effect um so you know um potentially you can move forward but also ensure that that there's a policy that that is in place um and again I would um agree that it does not have to be a situation where we're starting from scratch um but maybe reconciling some of the existing documents we have and inviting a little bit more input in in a subcommittee or in a hearing okay thank you uh let's see Martin and then Barbara on that issue I guess it's one problem is that there are agencies that are using body cameras already I know it's troubling that they're using it without well presumably they're looking at some sort of policy internally that we may or may not like uh so I'm wondering uh James if you could comment if if the better of the many eagles that we're talking about here is if in in section six uh that that uh anybody who's using the body cameras has to be following at least the LEAB so long as we're separately we're dealing with the fact that that policy needs to be updated with with some of the concerns that you've listed in your letter but at least it would make it so law enforcement is has a policy that you know may not be strong as we want it but it has has some of the protections that we want uh because I it seems highly unlikely that we'd be able to push this through with uh saying no more body cameras until we have a policy since a lot of some agencies have already adopted them right now I I understand I mean my understanding was that this this legislation is specifically about DPS body cameras and so I guess my point was that um state police should not be using obtaining and using body cameras until they have a policy but it you know your point goes to you know I think the broader issue that we have sort of a patchwork of some law enforcement agencies in the state have body cameras and their own policies I don't know offhand which of those are stronger or weaker than the LEAB policy um so I don't know for example if Burlington's offhand I mean again my colleagues um who are deep into this might know offhand um you know whether a given local agency has a policy that is stronger than the LEAB where you know so so I mean we have a patchwork system and it's not unlike the FIP and I agree with Representative Colburn that um there are issues with creating floors and ceilings um but to the extent you want to look at all law enforcement in the state and what policies they should be following you could for now say that at a minimum they should be following the LEAB policy I think so long as you know we would feel very strongly that we recognize that that policy is not nearly strong enough is not an adequate policy needs to be fixed so whether we're talking about it for all state law enforcement or whether we're just talking about the provisions in the bill which as I understand it are directed at DPS um and that raises another interesting issue because S-124 is uh talking about applying the policy to each law enforcement agency and I'm assuming that means all law enforcement agencies by January 1st 2022 so there's another thing that we have to kind of figure out between the two bills right thanks okay not seeing any other hands um Barbara did you so Martin actually started the the issue that I was concerned about but it raises for me the issue of do we want police departments all over the state following whatever policy they want I was not envisioning this just being the state police um and um in looking at representative um Payne's concerns I am concerned too about other uh technology that's being used that we haven't blessed and that leads to some of the same concerns um so I want to look at this amendment more carefully but facial recognition is going to be problematic and yeah like I don't know how to not keep making this bigger and more of a snowball but on the other hand it's gotten out of hand I mean I think that we are seeing from body cameras that technology is not being regulated and being used and we need to get on top of it so I guess that's my big point so if I could just follow up on that real quick so so I do think still for purposes of section six I I mean if if we can we one of two things we say the state police aren't going to use this until the policy is completed and we've done a re-review or we go ahead with this and say that they have to follow the LEAB policy you know recognizing that we are proceeding with updating that policy through this other process it seems that has to be one or the other or you just take it out completely like uh the commissioner said but the I'm worried that if we say follow that policy and we don't really feel that it is a policy because it is uncovering all the areas we have we're giving it more authenticity and authority than we might want to I mean that's that's why the other the other component would have to be pretty clear that we have this other process uh that's going to be very inclusive to update that policy right I think yeah I think I'm leaning towards taking it out uh because similar to what Barbara's saying that if we if we leave it in and we add you know another policy that we're not thrilled with and it's often harder to take something it's that just may become the policy you know um I guess Maxine real quickly on that though the section seven still says she'll immediately initiate the acquisition and deployment so so by taking that out you have no policy whatsoever if we're taking out six and leaving seven well I hadn't gotten to seven yet so uh which is which is why I was wondering if it would be helpful for us to take some time individually and read 124 and see if that gives us any guidance unless somebody has read it or is more familiar and can say you know it doesn't help us but um I'm just concerned that we may be spending a lot of time on this and that that the answer may be elsewhere or with a little bit of a break from it it might become come clearer so I think it's from oh I'm sorry to just go ahead uh I think and I just can't I like who's been reading three different things at once at least here um so I may have missed something but I think s124 is pretty reliant on the um leab policy and it's not clear to me and maybe I just missed it what the I mean they're expanding the Vermont criminal justice training council but it's not really I'm not sure they give a lot of guidance about the adoption of the leab policy unless I read it too quickly okay Sarah go ahead um I'm just gonna throw out another potential way forward um and that is that uh in the in s2 19 section 6 becomes effective on August 1st um what if we pushed that back to October 1st and um and established the process that we're going to use to make sure that we've evaluated the leab model policy um with input from from the broader stakeholder group um and that we would have it as our intention to uh uh to to pass a model policy in uh in the August September session so that it would be able to go into effect before the body camps are are deployed I think that could work but I feel like we still haven't um quite figured out what that stakeholder process for finalizing the leab would would be right and um you know I we've talked a little bit about the concept of you know having a short-term working group um but then also feeling like if we were going to ask people to work for hours and hours as a part of a group that we would want them to be able to be compensated and I don't think any of us should pretend that this bill is going to get through passage if it has to take a detour through the appropriations committees who have already passed the Q1 budget so um so I I would tend to uh to ask the question of you know could we could we delegate um you know two members of GOV ops and two members of judiciary to you know to begin the beginning of August um convening conversations with uh a variety of stakeholders so the Secretary of State's uh you know records retention folks the the um DPS ACLU, RDAP you know and and have it be a subcommittee of these committees who do that work and just a question on that Sarah would that be with an idea of perhaps having a proposed amendment to I guess I would say S-124 since that's not going to be done in the next two days and that would be the vehicle that would be that would be my intention would be that this subcommittee could develop something that we would try to pass in August September time frame can I just ask question why everything is I I'm just having a hard time following this there's there's things that are in place we're going why can't we just be a little bit patient see what happens in the next um what two months when we come back here see where the commissioner is see where everything uh how things have developed and then decide if we need to go somewhere else I just feel like we're rushing so much of this that I don't see the point in it I mean I think a lot of bases are covered I think Vermont is a lot different than other places I I don't I feel confident and let's let the people that are already in these positions to do their job does anybody understand what I'm saying so I definitely understand what you're saying I you know I hear what you're saying but I also I also feel like we have been we have been sort of circling around some of these issues for quite a while and with respect to body cams I think we heard Tonya Marshall say that you know that this has been worked on since 2016 and and we still don't have a uniform use of body cams or policy governing their use and so that's why I feel compelled to keep pushing forward and trying to find a way to really compel us to give ourselves a timeline of when we want to have this in place so let's so just just talking on the body cams so when I was the chairman of the select board in Northfield right we went and and we couldn't get the body cams fast enough right and then once we have body cams and what I'm hearing now because of the rights of people and all this stuff and how they use all this stuff which I'm in favor of of uh I'm in favor of body cans because I think it helps it it um protects a police that protects a victim there's evidence there and it's like now I'm hearing that oh all of a sudden you know we've got to call a body cams it's like no matter what we do we're not going to protect or not everybody is going to be saved there's going to be there's always going to be a problem we're not going to solve every situation that we have out there and it's going to continue no matter no matter what it's a part of life thanks so so Ken yeah no I um I do understand what you're saying I also we also did hear quite a bit of testimony that um that there needs this needs to be a broader conversation that the voices um people who are impacted um by these policies when there are policies even when they're not policies would ever have not been included in this in this conversation so I um Sarah I liked your idea and I I wonder if we could um have Bryn or somebody you know try to get that into a to language at some point and then um I suggest that that we look at Bryn's uh new draft uh based on our discussion this morning and uh and then and then if we have time move move back to the uh to the intent so we've got uh we've got some hands up right now our folks who want to urgently say something about this issue of body cam policy I had my hand up from before sorry okay um Rob you have your hand up still do you want to say something on body cam policy I do um I actually uh support your suggestion I think having a subcommittee work on this and exclusively this and get all the interested parties involved I think it makes sense to me no matter how we do this there's going to be some legislative oversight and input required anyway and if we can get all the parties around the table the ACLU all the interested parties that we've heard from recognizing that this particular issue is the focus um I I would support that excellent thank you uh Tom yeah I would say ditto to what Rob just said but um I had a question for James again of course around the body cams and I didn't know how familiar he was with what's going on in the Senate and in 124 of course uh specifically the section nine with the the use of the body cams and what the the what that model policy is from the uh LEAB um so I don't have 124 in front of me I you know I I'm filling in for a couple of colleagues um sure but uh you know as I say the the last uh I checked in on the LEAB um was it was a few years ago and you know the letter that we submitted you know I think is is probably would be the starting point for us in terms of the shortcomings of the LEAB policy um uh and you know again uh Leah Ernst um you know if you do go the root of a subcommittee I think I'm hoping I can nominate Leah Ernst to be our point person uh on that and I think she she would have a lot to contribute to that discussion um you know again our concern was that as I think somebody read the language of 124 it essentially said yes you should get inputs from stakeholders but the final recommendation comes from the LEAB which is stacked with law enforcement and now even more so um and you know as someone said that's not not the right direction to go so um so look can I just real I need to correct that real quickly I'm sorry because uh 124 it's not going to be more stacked until of course 124 is passed but also there is actually an expansion of of the individuals the executive director of racial equity an individual appointed by the human rights commission so it isn't just law enforcement it it in fact would expand you know three public members who shall not be uh law enforcement officers or or have any association with law enforcement officers at least that's what I'm looking at right now as far as a council membership Betsy and Rask has some uh so unless that unless that of course didn't actually make it through the senate that that's what Betsy and I'm gonna tell us hi yeah you are you are looking at that first page which is actually in regard to the membership of the Vermont criminal justice training council which is a separate entity from the law enforcement advisory board okay got you yeah got you okay still uh fully um law enforcement related members let's get all those other people on to the LEAB as well maybe that's an amendment for 124 Sarah when you take it that sounds like fun the more the merrier how colston okay thank you madam chair um I just want to say I agree with the position of both chairs on this issue and also represented la claire thank you all right sounds like we have a direction to go on uh with respect to the development of body cam policy that we will then have to um look at again during legislative session in august september um so I think we're gonna make sure and and so we'll need to have some language in 2019 to kind of true that up whatever yeah okay yes yeah um so I think what we should do right now is switch gears and go to brinn with um another draft where can we find okay hello committees I think that the the um new draft has been posted to both committee web pages it's draft 1.1 of um house judicierries amendment to s2 19 so I'll wait a moment for everybody to pull that up on their screens dated 625 yes okay so I just want to start out by saying that this draft this is just a draft hasn't been edited it does not contain any of that any of the decisions that you just made about um the body camera policies so that section those six and seven don't look any different so we're gonna we'll work on that next um but it does contain um some new language in the intense section and some of the other smaller decisions that the committee made with respect to other portions of the bill so I added all of the new language in yellow so the first new language you see is on page two it's a new last sentence to that subdivision a in the legislative intense section and this was into this language the sentence the general assembly is committed to continually assessing the progress made by the state towards developing a system of public safety that is effective equitable and maintains the public trust and continuing its work to achieve that goal so this sentence was designed to kind of drive home the point that this s2 19 represents um one step in in what is an ongoing process towards addressing these these issues okay I'll keep going so a bunch of new language down in subsection c um this language is intended to kind of set out the list of things that the general assembly is committing to taking on in august of this year um the first is considering whether to require law enforcement agencies to adopt the pillars of 21st century policing the second is considering whether to require law enforcement agencies to be accredited through the commission on accreditation for law enforcement agencies within the next five years the third is empowering the executive director of racial equity to issue subpoenas in the course of um her work this is a an issue that might be more familiar to the gov ops committee since you um reviewed this language pretty intensely two years ago um subdivision four is adding two full-time positions of data analysts and policy analysts to the agency of administration for to assist the executive director of racial equity in her work six or sorry fifth is resituating the criminal justice training council to the jurisdiction of the department of public safety six is requiring body cameras for all law enforcement agencies and officers that should probably also say all officers to be equipped with body cameras is probably more appropriate there um seven is reforming qualified immunity for law enforcement eight is expanding data that law enforcement is required to collect to include data that stems from all law enforcement initiated interactions with civilians they're not just expanding it from the traffic stop data nine is evaluating whether to create a new crime that would impose criminal penalties on a law enforcement officer that uses a prohibited restraint in the course of his or her duties as a law enforcement officer when that prohibited restraint causes serious bodily injury or death to another person i put this in here i don't know if the committees have made a final decision about removing the new crime but i added this line which is for your review and lastly 10 is considering recommendations that come forward through a process of meaningful community engagement particularly with impacted marginalized and vulnerable communities thank you let's pause there and see if either of the committee's membership wants to ask a question or make a recommendation on any of these intent pieces tom bird it has a hand up yes i do thank you um number three on page page three empowering vermont's executive director of racial equity to issue subpoenas um is that something that's unusual for somebody in that capacity to me that sounds more like somebody i think in the judicial system or maybe the state's attorney's office and that type of thing so i'm just wondering if this is a new direction we're going with this um i'm not sure i'd say it's unusual it would have to be uh granted by a statute for this person to have that authority um but i don't know if i want to comment on it being unusual okay is there uh i guess is there any other uh departments in the in the state that have that power um i would have to look into that and let you know i'm not sure okay great thank you jim harrison yeah thank you i guess i'm i'm lost i'm just reading this new draft now and i'm looking at that section and i guess i must have been asleep this morning because i don't remember any of this discussion about adding subpoena power and add in two full time positions for uh i guess analyzing the data so um i think we're i don't know i just i fear we're making this too big now it's a new appropriation and um we've taken a simple bill made it very complex so i just a word of caution from my point of view so i would just um say that many of these components are pieces that we have heard um being expressed as um as priorities for the legislature to work on we have been asked um either in in committee session or in um less formal conversations for many if all of these uh all of these pieces that are expressed as intent um and i think the what we're aiming for here is is really to um to make it known through the intent of this bill that we have a broader body of work that we know that we will need to get to um not that this bill is is accomplishing all of that but that we uh that we know that these are among the things that we want to do in the future um vaccine right and these um many of these were not discussed this morning jim you're correct and and again i um i agree with sarah the um i took these from things that um i heard in testimony uh also um somebody's were um our coaches recommendations and testimony that he provided in the senate uh so again just for discussion purposes um i also know that we heard from lori emerson um wanting to collect data um in terms of encounters with members of the mental health community and uh so i just want to make sure that we don't lose lose sight of that um and i think her testimony was in regards to section three of the bill which talks about um race data and and that's where she wanted something added um regarding mental health and i'm not i'm not sure if it's you know if we're ready to or this is even the place to amend it but at least to um name that as something to to consider yeah i appreciate that definitely heard that loud and clear um right and then also um i don't want to lose sight of bandana hugh's testimony but i um in terms of what we might put in the intent but i think it'll become more relevant perhaps when we start talking about the new crime robert claire well i guess i'm going to have to echo some of the others as far as the uh director of racial equity sounds like we're giving her additional staff um what what is the intent what is she going to do with this information um that they're going to be compiling and are we giving this position some sort of authority over law enforcement um and i guess does she have the qualifications to do this uh salina there are a number of provisions in the justice reinvestment bill around data collection that um mandate a key role for um this office and so i read i read because the positions that are described and defined here appear to be around um collection and analysis and i read this as um us uh hoping to support her capacity to do the work that we've charged her already charged her with doing is just martin thank you yeah i just a couple comments about this this list i mean first all with respect to what uh robert was just saying yeah we're not and we're not doing anything we're not empowering the executive director of racial equity whatsoever in this intense section of course it's just something we'll look at but my my concern is i do you know these are all important things that we have to look into some of them i don't really have any idea where my position is on them some of them i kind of been pushing but we don't know how long we're going to be here in august um and it just may be over promising as far as what we are able to consider and when we say we'll take up uh what precisely does that mean uh i mean on the one hand i want individuals to understand that we are very serious about continuing the work on this but i don't want people to think that we're going to be able to get all this done if we're not going to be here for very long in august and we're continuing to do this all through zoom but on the other hand are we able to even say anything about intent for the next biennium where we can't bind them whatsoever whatsoever so i understand that as well so i don't really have a solution for this i just wanted to raise that as a concern john gannon thank you um i agree with martin i mean well i understand this is intent language i mean i think there's going to be a promise put out there that we're going to tackle all of this in a couple weeks in august and this is a huge list of of things to accomplish um many that could take hours of testimony to really resolve so i would be worried that we're over promising in this section how oh thank you madam chair um i see this intent list as a vision so how do we frame it this is our vision this is where we want to go and how do we get there is our mission you know what's our mission statement how are we going to execute this it's going to take time we can't get it all done in august or september but i think this is a lofty goal and i think it's doable over time maxine thank you yeah i was thinking something um along similar lines that we perhaps recognize that this is work that needs to be done or or is left undone here but but yes that is it it is a vision and a recognition of of the ongoing work so selena um i hear people's concerns about over promising and maybe there's some ways to adjust um some of this language um so it's it's clear that this is work will pick back up in august but we're not um necessarily saying we're going to rush it through and i think we heard a lot of stakeholders actually asking us not to rush things through so maybe there's some ways to massage this language but i would i also would really caution us about under promising on our commitment um to this work and so i'm like representative colston i'm really hot and and i think representative grad i'm really happy to see um i'm really happy to see this such a comprehensive list and and especially um think it's important commitment to make the commitment that we're going to also be continuing a meaningful process of um engagement with folks who told us they didn't haven't felt engaged enough in this work today um so i'd argue for um keep keeping the list but maybe uh just framing framing the expectations around timing a little differently martin yeah i'll throw out just a suggestion for that just to get the ball rolling on the languages it is we could have something along the lines of it is the intent of the general assembly to continue to work including uh starting in uh august when we reconvene in august on the following issues something along that line i guess i'll let i mean if that's a general idea of where we would go brin i'm sure it could make that same yep um robert clarke well i find myself in a unique position of agreeing with martin and um hell and i for goodness sakes are just i don't know i'm so happy today but i i do agree with the aspirational part of this but i think when we're talking about adding positions and different stuff like that it becomes too prescriptive and i think that in some cases where we'd let the imperfect stop the good here barba rachelson hi sorry um so again if we don't set that aspiration nobody else is going to and i'm just wondering um again about maybe talking about what deliverables we want to see come out of this because as we know the body camera policy is just one piece of it um and maybe we need to just like we use the council state governments to get help with justice reinvestment maybe one of the things we want to look at even before the data people is getting some consultation both from the aclu and some mesh like maybe the campaign zero folks who have a beautiful um sheet of policies that they show the evidence behind making a difference on these issues and community community engagement they have a lot on um meaningful ways to do that so it's important to set the wheels of motion put the vision out there not over deliver but really kind of be smart about um making that vision one that we do get community input on because it's a good starting place to to do that and again if we don't hold the vision out who is going to hold it out that's good point thank you um any other questions from either committee on it on any of the new intent language before we um take a cruise through the rest of the bill all right brinn take it away okay so the next change you'll see um there are no changes to those two sections about um hinging state grant funding to law enforcement on their compliance with race data reporting requirements those sections are unchanged section four is the race data collection statute and there are a few changes there um the first is to change the reason for the stop to the grounds for the stop and then adding some additional language in the following subdivision that the grounds for any search that's conducted also be data that's gathered dropping down a few lines we've changed effectuated to during so now it's uh requiring data collection on whether physical force was employed or threatened during the stop i'm going to move down to the next page page six now we're talking about um the data that is collected and aggregated and sent to the vendor for posting for public posting rather than rather than user friendly we've added some language there to ensure that the data is posted in a manner that's accessible to the public and clear understandable and analyzable to a reasonably prudent person this was uh i took the chair's suggestion that i reach out to the uh our attorney who works with the commerce committees and this was his suggestion um that is actually a tort standard so um it may i'll let the committee decide how it wants to deal with that you could also just say the average person um but i'll let you all think about that and i'll keep going um i'm at the top of page seven now so this is the definition of physical force and we've changed this so it says that um it's force that's used by law enforcement enforcement to compel a person's compliance with the officer's instructions that constitutes a greater amount of force than handcuffing a compliant person so that change was made so we weren't using any terms of art there in case those terms of art change over time rob lecler has a question um man chair thank you i'm still hung up on why would i need to be handcuffing a compliant person um i think that natter can maybe describe this but even if i am peacefully surrendering because i know that you finally nabbed me after my 10 bank spree robbery spree you know even if i'm not looking like i'm urgently trying to run um i think the protocol is to handcuff the person go ahead natter yeah so you know another thing to think about is that people who are getting detained and becoming um and entering the custody of the state you know after entering that custody they it may dawn on them shortly thereafter that they're in big trouble and then they may change their mind and no longer become compliant sometimes people are on drugs and they become combative and it is the general policy that if you are taking somebody into custody they're going to go into handcuffs because they're now in the custody of the state of vermont and also when you're arresting somebody you have to perform a search of that person after you arrest them and placing them in handcuffs adds an element of officer safety during that all right thank you for that maybe i've just watched too much tv here but what i've seen and again i haven't had this experience it's probably not what i'm looking to rush out and have however it seems what i've seen is that officers will put somebody in handcuffs i guess for their own safety but yet the person has done nothing to indicate or give the officer from what i can tell reason to think that they're not safe i know i'm just there's something about this just doesn't strike me as being reasonable if you're going to put somebody in handcuffs then something's saying that they're not going to be compliant well you know one there's some i mean i i don't know if this will answer your question i mean there is some level of discretion very very little you know for instance if you're processing a dui you're going to arrest that person after you know on the roadside after they after you gather enough evidence that they've committed the crime of dui you're going to place them in handcuffs and then transport them back to the barracks or the police department and you know sometimes you'll get a person who after interacting with them for an hour you're 100% confident that they're not going to act out in a way and you have them sitting on a bench without handcuffs on so that you guys so that um both the cop and the person who got arrested can fill out the paperwork more efficiently and then you know the person apologizes and they're on their way other times you get a person who's fine and happy or fine and neutral when they're getting arrested and then 10 or 20 minutes later when they realize they're going to be sitting in a cell they start trying to break things and they become violent and so i i don't know if that helps clarify things but if somebody's becoming a ward of the state or if they're entering the custody of the state to be detained then they go in handcuffs at least initially so it makes sense to you good yes okay all right thank you you're welcome bob hooper well i i will say what i said earlier i don't have any experience in notter's area but when i was working with juveniles anytime a sheriff's department would come to do a transfer from any residential facility or any other time the policy was before you get in the car you get the jewelry on and that was just policy and it didn't matter who the kid was or what the kid had done uh build as just as safe for them as anybody else but it seemed to be a policy issue and that's kids uh martin london so i mean the question really isn't whether one should handcuff a compliant person or not that's we're just using this to set the standard for amount of force so i mean those are two separate questions you're concerned i think uh representative leclerc is not really what we're getting at there it's just a measure of amount of force and that's what we're using as the standard all right any other questions on this section right let's uh tom verdant yeah i had one for not and just with the situation that we're talking about and you know and uh when you put somebody in handcuffs for whatever reason did you ever not put somebody in handcuffs uh just because you had a feeling about them or you knew them or anything like that in one of the same situations you might want to unmute uh no the the answer is no i mean i'm trying to think of one um i mean i i recall arresting a few folks who were morbidly obese and we had to use several handcuffs just for extra length there have been a couple times here and there where i've had people sitting in the front seat because they were much older and it was really cold out and you know i wanted to make sure they were warm but they were still in handcuffs um maybe a few times of handcuffing people in the front because they had an obvious shoulder or hand injury and um but usually when you handcuff people in the front you also have a belt that uh makes sure that keeps their hands basically right around their belly button because there's a hand handcuff nonetheless and i'm going to assume that it was uh that that was driven home in in uh at the academy yes yeah yeah it's driven home at the academy if you're if you were going to arrest somebody then handcuffs are going to be involved unless i mean there are also instances where they're getting in an ambulance because they were involved in a car crash and it's a d y and you're going to be processing them but you know they're bleeding from their head and they're in a gurney so you're just going to go you're just going to follow the ambulance to the hospital but even then there are instances where people are injured bleeding from wherever and they're still violent and you you actually do handcuff them to the gurney and then you meet them at the hospital but if but but the handcuffs do go on yes okay great thank you well i'm gonna miss you with these questions yeah you can send me a text message it's a great resource uh so brin let's uh let's keep going okay so the next two changes are they're actually not changes they're just words that i highlighted um to flag for the committee that you had discussed but i don't think you came to a coalesce around a decision so the first is on page nine this is the category b misconduct failing to intervene um i think that there was some conversation about whether that should be failing to report um to a superior or something so i just flagged that uh i guess i can end up as does maxine yeah if i could add um that was a recommendation from um james pepper um possibly use report instead of intervene responding to the discussion we had earlier um tom i think that was from before sorry rob uh bob hooper did you have you know were you leaning in to say something uh yeah i thought my mic was off but i said maybe we should consider that it should be both worked intervene and report but i good not to go ahead oh thank you uh i i i agree with rob um but i think it's really important to figure out what an intervention would look like um because there are times where the cop may be rolling onto a scene and he'll see another cop fighting with somebody else and the cop who's arriving at the scene may have no idea why they're fighting that suspect may be somebody who was trying to stab somebody and now they're going hands on or it may be a legitimate excessive use of force or a violation of a person's civil rights so you know it may put that second cop in a weird position where they're wondering is this the situation where i'm where i need to intervene or is it a situation where this suspect is trying to hurt or kill somebody else and i actually need to assist so that's why i think we should try to figure out how we define that uh yeah martin can it not or be as simple as saying uh failure let's see uh to intervene when the officer observes another officer improperly placing a person in a prohibited restraint or using excessive force and that still leaves it relatively broad i mean one could really go into it like reasonably i think that narrows it down i think that narrows it down a bit more well or it could be another officer reasonably believes uh that the other officer is improperly placing a person i think that would narrow it down and uh make it make sense i would think that brin would probably be able to get the the point of that in better language than i just suggested but maxine thoughts on that right so so two things one i would ask brin to help us understand what the senate the uh senate's intent was when it said failing to intervene and why they have that section in here i think the answer would be helpful to bring us back to that um i think the report suggestion comes from this um this i guess was afternoon um earlier afternoon discussion where um i think tom you brought up the concern about these um the ranks um within um police officers and and might report might it be easier for somebody to report than to intervene i think that's what that was getting at so so um would you would you like me to talk about the senate's yeah that'd be helpful behind so the senate had quite a bit of conversation about this prohibited restraint um as you could probably tell from the bill as the way it arrived to you was um i think that was the portion of the bill that was they heard the most testimony on um it was important to that committee that this restraint be called a prohibited restraint um as opposed to an improper restraint or something else to make it abundantly clear that it was uh prohibited for law enforcement to use this type of restraint under any circumstances um so they had some conversation about whether or not it should also be prohibited conduct to um observe another officer using a prohibited restraint and stand there and do nothing um so this really came up in the context of uh having the same sort of uh opportunity for sanctioning for an officer who um took no action if they knew that another officer was using a prohibited restraint uh martin so does it help if there's a reasonableness standard in there or did they talk about that at all is that necessary i understand what you're saying by by interjecting improperly it goes against all what they were talking about because you know i mean watch some of what they were listening to but should there be uh you know just an officer observes uh as opposed to an officer i'm just wondering if reasonableness should be put in there or if that's not necessary i think i mean i that's up to you i would i would say the senate was very concerned that um that officers are frequently able to um avoid sanctions or criminal charges for conduct based on that reasonable standard um so in this instance of the prohibited restraint just in this one uh sort of narrow instance of police um excessive use of force the intent there was to make it very clear that the conduct was prohibited um and not put in any um reasonable standard or other qualifying language that may um make it easier for an officer to avoid um experiencing a sanction for this kind of conduct so the officer is going to have to make a judgment call in not her scenario that he raised that they drive into a situation of whether the other officer is using a prohibited restraint uh as opposed to in a self-defense situation or using excessive force as opposed to the self-defense situation as it's written is that correct brane will you say that again i'm sorry i don't think i followed very well well just the situation where an officer comes on a scene where another officer is in some sort of struggle with another person there's going to have to be a judgment call of whether what's happening is prohibited or excessive or not yes and i think that the testimony that the senate heard was that there's um that sort of response from by the officer is going to be a part of the decision that's made by the agency and considering whether to discipline an officer and also it will be taken under consideration by the council in their decision of whether and how to sanction that officer so it's a little different from a from a crime where you really have to establish each element of the crime in order to to be subject to the to the penalty associated with that crime maxine unmute you want to unmute yourself thank you um brane when you were describing this you used the words um and it was failing to take any action or remember what you said um that that's so they used intervene to talk about inaction or not taking any action and i wonder if that's too if we if we go back to that so action if that's too broad um or vague use some some sort of language about failing to take any action i think that maybe that goes to the point that representative hooper made about um whether you want this to read instead failing to report or intervene or or both um if you want to make it more specific what kind of action is required here do you remember how because when you phrased it it's a did you say that take no action do you remember how you phrased it because that to me seemed like it was it was it was broad uh broader than intervene yeah i don't want to i don't want to characterize um the senate's testimony too concisely because they they did take a quite a bit of testimony but it's my recollection that their conversation was really about um wanting to ensure there was some penalty associated with um a failure to intervene in these kind of circumstances if one officer observes another using this prohibited restraint um that person would not be able to sort of escape from that situation without any consequences thank you tom i think you're unmuted now oh okay it wasn't showing i was muted uh okay anyway i'm here so um in g failing to intervene and um i think brand that you said the uh i don't know if i'd say the intent of the senate but what what they had talked about is a uh a prohibited restraint under this meaning is a restraint that can't be used period is that is that right yes i would characterize much of the conversation in the senate as wanting to ensure that this was uh it was quite clear that this is the type of restraint that should not be used by law enforcement okay so so with that said uh in this language here uh how would that apply since we took uh we took out section five um it wouldn't it wouldn't apply because section five is gone that's my guess well this this is different section five imposed a criminal penalty for a law enforcement officer who used a prohibited restraint that resulted in serious bodily injury or death and this is um in the unprofessional conduct sub chapter here of the of the council chapter in title 20 so this is like a professional professional sanctions as opposed to criminal sanctions and there is a definition and there's still the definition right okay so by removing below okay yeah right so if you're going to remove section five the criminal sanction you you're saying that this prohibited restraint is subject to professional sanctions and not criminal sanctions except for if a law enforcement officer was charged under an assault statute right right oh okay i may have more questions but thank you don gannon thank you so i mean the the failing to intervene with when there was a prohibited restraint seems to be i don't think there's an issue around that because if if an officer is fighting for his life you'd want the other officer to intervene anyway if the officer is using a prohibited restraint and is doing it like it appears what happened in the george floyd matter then you want him to intervene in that situation too so that one's easy i think to unwrap the one that's more challenging and i think nada pointed this out was you know if you come on the scene how do you determine if somebody's using excessive force or not that that is a judgment call i mean if we took that out the excessive force part then i think this is easier to deal with but that's just my thought thanks john um how uh thank you madam chair i wanted to go back to section four before we close out uh real quick um and on page five on line five you know we haven't touched on um collecting data around folks with the mental health crisis and in gov ops we heard significant and compelling testimony from advocates from the mental health community so i'm wondering if you might consider after race and mental health data and then after line 21 to insert some language to the effect and whether the person stopped was acting in a manner that gave the officer reason to believe the person was in a mental health crisis because we're not collecting anything from this draft about mental health data right and that's that's what i had um spoken about in the intent language or um whether or not to put it there or i had i had originally um asked about something similar to the how just mentioned um based on lori emerson's testimony and we've heard other testimony in gov ops that really i mean i i believe half of the folks who are killed at the hand of police are suffering mental health crises so that's an important piece in this section and i think i don't know how we get it in there if it's just stays in intent but i think it's it's an oversight if we don't call it out at this stage of the game i agree that that is a nagging worry in the back of my mind um uh i also don't want to try to rush something through unless unless we feel pretty comfortable that um that we're asking for the observation i mean that's that it's hard to imagine that there's a lot of consistency in terms of whether you observe somebody who's uh you know angry and belligerent or whether you assess that they are yeah having a mental health crisis so i it worries me how we would i mean it yeah i i agree that we need to keep working on that okay jim yeah no i just i was going to echo the same thing i i think it's an important um thing we should follow um i just i don't know how much a law enforcement officer will be able to judge uh and categorize someone um that's in a a stage of mental illness um i mean it just it's hard it would be hard to define and i'm not saying we shouldn't we should try to um other thoughts on that or um or moving back down to the question that we were on before failing to intervene bob hooper you are you leaning in to raise your hand uh no okay i'm reading your body language through leaning in because my glasses don't let me see difference yeah sarah i or group i i think i'm okay with leaving it as as is or at or report intervene or report but i think i think intervena after listening i think i think having intervene there is is important yeah mark i like our report as well i think putting intervene or report i'm definitely in favor of that okay tom am i unmuted this time great thank you um yeah i i guess i'm i've got a question uh let's see uh page nine number seven so with number seven prohibited the definition of prohibited restraint so does that make it uh i guess you could say illegal with to to use these restraints period it makes it category b unprofessional conduct to use that kind of restraint period okay uh but could it be deemed necessary i again they'll count the law enforcement agency and the criminal justice training council i imagine is going to hear from the officer the officer is going to explain what happened they they do have the opportunity to do that um and that will be taken into consideration if it was the kind of situation where the officer used this prohibited restraint in order to save him or herself or somebody else so um that i don't i do not think that because it's category b conduct it's defined as category b conduct it is across the board um going to be something that a person is sanctioned for right yeah i just i think it's it just sounds to me it sounds kind of funny to call something a prohibited restraint that's uh going to save uh in officers or somebody else's life it just makes no sense to me at all and and i'm just i'm having a lot of trouble with with that with number seven so um hooper um this is probably inappropriate to say it tom but put it in the context of shooting somebody that's normally prohibited also but in the protection of life it's sometimes accepted but the point that i wanted to make though is that and when we talk about the word report we're kind of advancing this to the level of a crime and i wouldn't want to put an officer in the position of having to make a judgment as to whether a crime was being committed it's more the departments and uh councils responsibility so so i i guess i would ask whoever would would uh in the situation bob was just talking about if somebody was shot is that does that rise to the same level or would that be on the same level as prohibited restraint as far as the uh being scrutinized there's always a review when you shoot somebody i think right right i didn't know if there was similar similar language that with with you know discharging your firearm or prohibited restraint if if they're putting them on the same same level because it would make me feel more comfortable if there is uh you know similar language around discharging your firearm i guess uh is i don't know how current it is but not or can speak probably more to currents but it used to be that anytime you discharge your firearm you came up for some sort of internal review with the state police anyway right right i guess it would be more toward brinn if if we have if it's a similar uh i guess you could say in fraction or charge or whatever whatever the right word is um is it the same level for firing your your gun and prohibited restraint well um so it could firing your your uh you're discharging your weapon could be considered category a conduct if it's uh if it's done um illegally if it constitutes a felony um obviously that would be a crime if the officer committed a crime uh category b conduct could mean gross professional misconduct um amounting to actions on duty um that involve a willful failure to comply with uh a state-required policy um so i think that you've heard testimony that um law enforcement agencies have their own use of force policies so any substantial deviation from a use of force policy if the if the officer discharged their firearm in a way that was countered to the to the agency's use of force policy could be considered category b conduct um and i think the idea was the intent here was because policies it's not um there is not a statewide universal policy on these prohibited restraints um if this if the legislature wanted to prohibit law enforcement officers from using them they should um be considered category b conduct so that um an officer would be subject to sanctions if they used one okay so these would be and you said uh firing your uh discharging your firearm is potentially a category a is that what you said well it depends on the circumstances i mean i i only say that because if if you know if the officer wound up um being charged if they if for example if it was a sort of situation like the situations that we've been hearing about around the country where the officer discharged a weapon in the back of a person who was running away and if law enforcement wound up being charged with a crime then yes that could be considered category a conduct um whereas if it's a more um if it's if it's a situation with more nuance um and the and it was considered an uh uh an excessive use of force that may be an egregious departure from the from the agency's policy and then it could be considered category b conduct i guess i i i don't totally understand obviously um but i i would just have trouble with a prohibited restraint rising to a level higher than firing a um shooting a firearm but um i guess i've gotta figure that out yep i think you know this was it was talked about a little bit in the in the course of the testimony on the bill about excessive use of force and use of deadly force whether or not there should be a statewide policy that prohibits this conduct um and since that um that the the sort of progression of that bill didn't um carry forward this was the idea for how to prohibit this conduct um in a meaningful way okay thank you so committee's just in the interest of time here i do see for or so hands up to uh to either ask questions or weigh in on this so i'm wondering if maybe we should take take a time out from this right now and go to the floor um and i have um i have a new zoom meeting set up for 15 minutes after the floor you should see an invitation from Andrea Hussie whose gov ops committee assistant um for us to come back to this and so we can pick up where we left off and um and when we get back in it uh as we come back to this section of the bill please raise your hand again and in the meantime i guess i would just encourage folks to continue reviewing not only the rest of this draft that we started looking at but uh but also um take a peek at your emails to see uh other thoughts and and observations that are being offered by folks on the topic and can i just ask folks to review their notes my notes say that um Mike O'Neill supported this section that we've been talking about and that's that that's what worth noting um i think that's important to understand that um that he was comfortable with that maxine were you talking about number seven the prohibited restraint that whole section yeah what um the section that you were concerned with and okay and so i just no that that's uh that's comforting thank you okay and i when i i want to make sure everybody have those same notes or agrees with that but that was my understanding of the testimony all right so brin are you available to join us yet again for this afternoon yes so um the plan is to look at us another new draft at that point with the that language about the body camera policy oh absolutely that would be a great idea if we could take a look at that thank you yeah and brin i'll actually um i've come up with uh some new language in the findings um about the um uh position softening changing that language a little bit so i'll i'll email that to you now great okay thank you all right see you all back here after the floor