 Good morning. We are continuing our discussion on S-254. And Wildo White was visiting us with us before the break. And I know that, Bob, you had your hand up. Yeah, it's just a quick question. Well, nothing earth-shattering. You had mentioned in New Mexico, they had a central repository as far as the losses, whatever. My question was simply, do you know who's responsible for that, rather than to, I don't know, they had been mentioned, have law enforcement individually start keeping track of this stuff. Is there one central repository in New Mexico and who's responsible for that? Or do you know that? Wait, we can't hear you. You don't see it. Wildo White, Representative, I'm going to go back and look at my notes about that law and submit my response in writing, just so I get it right. That's, I don't want to answer off the top of my head, if that's OK. Thank you, I appreciate that. Actually, we may be able to save you some work, because that's a question to cancel. I do have the law in front of me. I could read directly from it. OK, great. Thank you, Mr. Chair. You can do it from there. Thank you. So under section 11 of the New Mexico law, it's records of claimances. Each public body shall maintain the record of all final judgments or settlements paid by the public body for claims made pursuant to the New Mexico Civil Rights Act while attach a copy of the complaint to each record. All judgments, settlements and complaints are subject to disclosure pursuant to the inspection of Public Records Act. So in that, it would be each public body is responsible for maintaining the records of judgments and settlements. So if you should mention a central repository, then that doesn't sound like a central repository. Yeah, that's maybe my memory is faulty. Maybe I'm referring to something else. If that's New Mexico's law, then that's not a central. That's the public body. I'll go back and look at my notes and see if I did see reference to a central repository. OK, thank you. Appreciate it. And I want to clarify one thing. I see that you're testifying on behalf of Matt's freedom. And DPS is as well, because there was reference to you and your training at DPS. So there's one. Yes, it seemed like I was invited here as the invitation I received was directed to Matt's freedom. And so my testimony today was on behalf of Matt's freedom, which was as opposed to the bill. But I also worked as a consultant for DPS and was involved in training of law enforcement officers under the new use of force law and the statewide use of force policy. OK, thank you. Thanks so much. OK, I think great. Thank you, Wilda. And thank you. So let's see. Roger Marcu, Sheriff's Association. Good morning. Welcome. Good morning, Madam Chair. Thank you for the invitation. Roger Marcu, I'm the LaMoyle County Sheriff, and I'm here on behalf of the Vermont Sheriffs. And our position, the Vermont Sheriff's position, was originally opposed to the bill. And we signed on to the position statement that I believe you all have, which I think Wilda White had a lot to do with. So a lot of what I was going to say has been covered. And I know you have a lot of witnesses. So I'll just give you a few things to think about here. One is that, I just wondered right from the beginning, while I was involved in testifying with the Senate, is what is it that we in Vermont here are trying to fix? What injustice has occurred where this type of action has to take place, where our department has been sued. Every law enforcement agency in Vermont, I think, has been sued before. And it seems to me that the mechanisms currently in place do help safeguard people whose rights have been violated and who deserve a remedy. So that's a question that I wanted to put out there, because there's unintended consequences often when we create laws and some things that we may not have thought about come about. In the position statement offered to the committee on page 7, it stated that 8 out of 10 recently reported Supreme Court cases in the Second Circuit Court of Appeals in New York were denied. So it seems to me that means that those officers did not qualify for immunity and the system worked. And on page 8 of the position paper, it talks about the Vermont Spirit Court cases, where there's 12 cases in Vermont that were denied, three of them were denied, and five were allowed qualified community, and four did not reach a conclusion. So again, the risk, what I want to say is that we in law enforcement, as you all may have heard, are in crisis with staffing. And this really is of great concern to all of the groups that are listed on that position paper, where law enforcement officers and people contemplating getting into law enforcement are concerned. What does this mean for my family if I lose this basic right here? And it's made where they can be sued and their houses can be attached, or it really affects their families that way. In January, Vermont Police Academy reported that Vermont was currently down 114 level 2 positions and 311 level 3 positions. That was in January. And the Department of Public Safety had conducted some research in 2020, where they found that we had lost 91 officers just in 2020, and we were only graduating 51. So I think it is a trend that we are losing many more police officers than we are able to replace them with. So and in my department at the beginning of COVID, we have 45 deputies, and we're down to around 25 now. So this is a serious issue. And it's really unsustainable for us. But the end product is what's happening with the victims, particularly of violent crime. How long is it taking us to get to them and everything? And to that point, when we're talking about domestic violence, I just wanted to point out something that I'm not sure what's going to happen here. In Title 13, section 1048 is a section called the Removal of Firearms, which we've been working with domestic violence advocates to try to have police officers remove firearms when it's appropriate in this statute to at least take away that piece of danger from domestic violence victims. And in section D, it says, a law enforcement officer shall not be subject to civil or criminal liability for acts or emissions made in reliance on the provisions of this section. This section shall not be construed to create a legal duty to a victim or any other person. And no action may be filed based upon a claim that a law enforcement officer removed or did not remove a firearm as authorized by this section. I bring this up because domestic violence is about half of our homicides in this state. And we've just really, really struggled with getting police agencies and police officers comfortable with the notion that they should, they may, that statute says they may remove the firearm. So I don't know what's going to happen with this and whatever else is maybe found in this study if that goes through. What other immunity out there that we really, truly need? So I guess I'll end by just saying that we're concerned about the negative impact that this will have on the law enforcement community. And also, again, just to reiterate, I'm not sure what has occurred in this state that is so egregious that has led to this bill. Now, I certainly respect the legislature's ability to look at everything and try to make Vermont a better place for its citizens. So it's not meant to be disparaging, but just to be really blunt about it, that's something I hope the committee considers in their deliberations. Thank you. Thank you. I appreciate your testimony. Go ahead, Selena. I had two questions. So I'll ask the first, which is just general because I heard you say at the start of your testimony that you were opposed to the bill as introduced. I'm wondering if are you opposed to the bill as passed the Senate in its current form? Now that it's essentially... Yeah, I think it's, I agree with the previous witnesses that it's unnecessary. So the answer to that is yes. And then my follow-up, or second question, I mean, I just heard you share a lot of questions about some of the work that we've done in really strong, I think, collaboration with law enforcement and the legislature about removal of firearms and concerns and questions about how some of the exemptions from civil liability and that legislation might interact with the qualified immunity doctrine in any attempt to make statutory changes to that it seems to me that the study that we're commissioning here is well positioned to help us answer exactly some of those questions. I mean, I'm looking specifically at, you know, the provision in subsection three that says that our legislative council will be identifying existing immunities from suit, concerning allocations of Vermont, law enforcement, conduct, existing defenses, sorry, I think I meant subsection four, existing defenses to liability. I mean, it just seems like you just listed a whole bunch of questions and said, I don't know how these things would interface. And I think that's why to me, that was an argument for further study, not a reason not to study further. So could you, I just want to give you the opportunity to respond to that. Sure. So we're, you know, if we had our dreaders, we'd just rather see all of this go away. It certainly is your right and, you know, to commission this study and look at everything, you know, to a certain extent, we just feel it's not necessary, but, you know, at the end of the day, knowledge is power and, you know, that's certainly is up to you whether you want to go through with that. Thank you, I appreciate that. Great, thank you. Thank you very much. Thank you. Okay, Karen Horne, legal citizen of the Netherlands. Good morning, nice to see you. Good morning, and thank you for having us. I'm Karen Horne with the Vermont League of Cities and Towns, and with me today is Phil Woodward, who's general counsel for property and cashly insurance fund in the event that you have particular questions that he might be better qualified to answer. So I did want to let the committee know that we testified in the Senate Judiciary Committee regarding the bill as it was introduced. We were one of the signatories that opposed the bill as it was introduced. And we've also testified briefly regarding one of the interim versions that was on the table a couple of days before the bill that passed. So we've also been involved in discussing the future of law enforcement in Vermont and how to grow our community's trust in policing for many years. And I did want to go through some of the legislation that's been passed recently that addresses these issues. In 2017, Act 56 was enacted. It established new provisions for professional regulation of law enforcement officers. In 2020, you passed Act 147 defining prohibited restraints. You passed Act 165 establishing a use of force standard and Act 166, which addressed the collection of roadside stop data and use of body cameras, restructured and expanded the criminal justice council and required law enforcement agencies to report criminal complaints of professional misconduct to the council. Last year, the council established a professional regulation subcommittee to hear those complaints. And to date, my understanding is that they have reviewed 75 complaints of misconduct. And then in 2021, you passed Act 27, which revisited the use of force standard, established an officer's duty to intervene and establish new statewide training requirements. Those are all now the law. And even in the last two years, even as the COVID pandemic struck and already difficult recruitment, which Sheriff Marku referred to and retention problems have been significantly exacerbated. The police departments, the restructured criminal justice council and the newly appointed executive director of the police academy have worked to implement all of those legislative directives. As we understand it, as it was passed by the Senate, S-254 would require leach council to submit a report that identifies the origins of the doctrine of qualified immunity and establishes its context relative to other laws, presumably all those laws that you have passed since 2017. It would direct the leach council to assess the impact of the doctrine of qualified immunity on access to civil justice remedies for people wrongfully blamed by bad faith policing and violations of civil rights. It would also, the bill would also codify as you've heard much discussion this morning, the common law principle for a plaintiff seeking damages for alleged violation of Article 11 of Vermont Constitution as established in Zulu. The important piece here is to understand that the version of the bill that actually passed the Senate was put on the table in the Senate Judiciary Committee the day before or the day that it was actually passed. So particularly with respect to codifying the Zulu decision, it was a measure adopted in haste. And as you've heard this morning, there's a lot more discussion that might be helpful to addressing that whether or not that needs to be in the statute. We would suggest that you, that if you undertake the study of qualified immunity for law enforcement or for officials across the board that you include the Zulu decision and how it might be applied in statute as part of that study. We're really grateful for the Senate stepping back from actually passing legislation addressing qualified immunity with respect to law enforcement officers without having done a substantive analysis of what is the situation today that's offered by a ledge council which is and the people they consult with which will presumably result in an even-handed treatment of the issue. I'm happy to answer questions. Phil is here with me to answer questions as well. Thank you. Thank you, Karen. Slia. I'm trying to let somebody else go first if they want to here. But so thank you so much for your testimony this morning and I appreciate your just that really good summary of all the legislation that's happened in recent years. It does seem to me that a lot of that legislation you described is on a continuum from training to oversight to statute actually governing police conduct in the field and sort of what we're talking about here in this question. Of what role the qualified immunity doctrine should play in Vermont is like what happens when all of that breaks down what kind of remedies are available to people. So I do see it a little bit as apples to oranges. That's more of a statement I guess but I'm happy to have you respond to it. But really what I want to ask is just it sounds like I'm hearing you say in terms of the study that the league is supportive of the study? We think so two responses I would say representative. Firstly, the laws that you've passed since 2017 are in the process of being implemented now. And some of the measures and trainings some of the trainings have not even been put in place yet. Some of the measures around for instance the review by the professional regulation subcommittee are very new. And we would be very concerned about a qualified immunity law standing in the way of the effective implementation of all the measures that you've put in place in the last couple of years. Having said that, if the legislature wants to study the issue, that's certainly an appropriate function of the legislature and the legislative council and use study all kinds of things. So we would certainly not object to the legislature studying this issue as well. I think that's helpful. I won't, I mean, I'm a little confused about how addressing qualified immunity would prevent implementation of those other laws, but since that's not really the question in the bill before us, maybe I'll go get some of your testimony in the Senate to better understand your position on that rather than take our time. Thank you. And if I may, Madam Chair, just ask Phil Woodward if he has anything to add at this point. Absolutely. If I may, just a couple of thoughts, Madam Chair. Initially I've heard a discussion about accountability and it has been a position that Act 56 provides a better mechanism for accountability because that is something which affects the officer individually and directly and in a much more timely manner than a piece of civil litigation that takes years to go through the system. And either ends in a, and if there is a award is for monetary damages ultimately paid by the taxpayer. So as Karen is alluding Act 56 is in our view a better mechanism for accountability. And we'd suggest or request that it be given time to be implemented. This wasn't posed to me. So I won't dive into it unless somebody wants, but I have been listening to the questions about policy and training and whether or not that's part of clearly established law and could comment there if somebody wants. Yes, thank you. That'd be great. As other witnesses have said the clearly established law standard focuses in on constitutional and statutory rights. A lot of policy and training is to teach officers what those limits might be, but there are also policies and training out there that individual municipalities might adopt which go further than those requirements. So to go back to the case that Dr. Jones was talking about more AVE that's a pursuit case. The armed municipalities that have policies and procedures on pursuit which have stricter requirements of limiting the initiation of pursuit or continually a pursuit than the constitutional or statutory standards. So they want to be more careful. If policies and training become part of the quote, law end quote, some of the incentive to adopt those internal policies and procedures that have a safe harbor or more restrictive than the law otherwise requires evaporate. So it might have a unintended consequence there. And it would be one unintended consequence is that the policies may vary from municipality to municipality. So what is the policy? And so throwing it might be different than in, for example, Williston. Thank you. Yeah, I thought, Kate, did you have your? I don't know. Okay. I just want to make sure I understood your testimony on that. So is the idea if a policy could establish or could lead to the clearly established law that would be a disincentive for agencies to adopt policies that are stricter than what may be provided in statute? Is that what you're saying? I just want to make sure that I understood that. Yes, that is correct. That is one of the points. And then another one is that it would seem incongruous for what is clearly established law to vary between from municipality to municipality because the policies and training, they're obviously need to comply with clearly established law, but some of them go further. And, you know, if that gets rolled back into clearly established law, then we're going to have a situation where what's clearly established might be different in South Burlington versus say, Williston on, for example, when pursuits are allowed. I was wondering if you could please comment on the section regarding the record case disposition that maintains each law enforcement agencies shall maintain a record of all final judgments. You're prepared to, I don't want to be prepared to testify to that. Well, I do think that if you again look at the criminal justice council and their professional regulations subcommittee that they are going to be keeping records of complaints that have been brought to them. I don't know, Phil has comments with respect to municipalities keeping records of disposition of cases. As to the individual record keeping practices of each municipality, that's beyond what I could speak to. Municipal settlements, law enforcement cases are generally, I agree with the other witnesses, those are public records. Great, thank you, that's helpful. Any other other questions? Okay, thank you, thank you very much. Appreciate your testimony. Thank you. Yeah, good. Okay, so let's move to the ACLU please. Welcome, Delco. Hi, there you are. Good morning, good to see you. Good morning and thank you so much for having me here today. My name is Falco Schilling and I'm the advocacy director for the ACLU of Vermont. I will try and keep my comments succinct and at a higher level, since I know we have other witnesses we're trying to get to who've taken time out of their busy day, but as always available to the committee for any follow-up testimony as requested. So I just want to start at a high level of what S-254 intended to do as introduced in the very first place. And that was, you know, the intent of the bill was to make sure the victims of police misconduct have access to justice. When their rights are violated, that we eliminate unnecessary procedural barriers that can stop them from recovery even when there was a rights violation. You know, the intent of this bill was not to say that the law enforcement can't be trusted, but ensure that victims of police misconduct have access to justice. And that's what S-254 is introduced did. It created a clear cause of action for people in Vermont when their rights had been violated, either statutory constitutional common law rights had been violated by law enforcement and allowed them to bring those suits forward without having to encounter the barrier to suit, which is qualified immunity. And so qualified immunity, as you have heard, is a court-created doctrine, not something created by a legislative body but created by a court because they felt the need to limit the ability for victims of government misconduct to access justice. And so what this doctrine actually says is immunity to suit. It's not just a defense to suit. So it says that when there's a question about a rights violation, the first line of inquiry is, does this violate clearly established law? And as you've heard, the establishment, a clearly established law can be applied very differently by different courts. And that's one of the main concerns of qualified immunity. In some cases, the case needs to be almost exactly on point. And we can bring in some examples from around the country where we've seen this happen. Cases where someone had dog-sticked on them and the difference was whether they were kneeling or lying down and saying that that was the difference between the suit being able to move forward. Or cases where there was outright theft, but there was not cases on point that that type of theft was not acceptable in violated constitutional rights. So what the S-254 would have done was said that if there was violations of statutory constitutional rights under Vermont law by law enforcement officers that people in Vermont could bring those suits forward and collect damages for those suits. It also had an indemnification provision which said that only in the most egregious cases would anyone be individually liable for these suits. Because as we see in practice, the vast majority of these suits, there's indemnification where the law enforcement employer will actually take on the legal liability and then also take on the defenses and immunities available to the individual being sued. So what the S-254 said is that the law enforcement employer would be responsible for those damages as they are responsible for the training, as we heard earlier, with the exception that in the cases where the law enforcement employer determined that there was no reasonable belief that the officer was acting in good faith with compliance to the law, they could be liable for up to $25,000 or 5% of the judgment, whichever is less. And this is only in cases of bad faith when the officer had no reasonable belief that they were acting in accordance with the law. This is something that was taken from the Colorado law that was recently passed. And as was much of S-254, based on that law which was passed in response to the call for police reform across the country in the wake of the murder of George Floyd, I know this is something that we have, in response, Vermont has done many things. But I think as you've heard today, many of those reforms fall short of trying to create access to justice for victims through the civil court system, and that's what this bill intended to do. So that's a little bit about what S-254 intended to do and why we support that bill as introduced. And we would hope the committee would actually move forward with that bill as introduced. But that said, I also wanna speak to the bill in front of you today, understanding that that has been the bulk of the discussion and where the committee is looking right now. So I think there might be some surprise, but we actually are in agreement with the Department of Public Safety and the witnesses that you heard earlier, and that we would like to see section one of the bill as passed by the Senate struck. We have one from our perspective that the Zillow decision instituted a qualified immunity-like test, which limits the ability to recover damages in cases of Article 11 violations, and also have some concerns about how it's been codified in this section. So in line with the testimony you heard earlier, the ACLU would ask that that section be struck from the bill and not move forward. And I think in relation to the record of disposition of cases, since that relates directly to cases adjudicated under this new section, I don't think it's necessary to include that. But if the committee was interested in creating a centralized repository of these types of decisions, I think there need to be some modifications there for how that would work, but we would support that. If that's something the committee wants to do, we think that there is value and more transparency in how these suits are playing out throughout the state, what damages are being either found through cases, fully just, or through settlements. Actually, I'm sorry, I'm sorry to interrupt, but I just want to make sure that I do understand your testimony, and the numbering is a little, it's kind of confusing, because section one, as you said, does include Zulu and then the record of disposition. I remember the witnesses been talking about section one just as Zulu, so I understand that you want that first piece out, or would agree to having that out. The record of case, the committee said that if we do something like looking at a central repository that you would support exploring that, but we don't go that way, then did I hear you say that this section is not necessary? Yes, so we'd be supportive, cutting section one in its entirety, and that includes the record of case disposition, as folks have already said earlier, these are matters of public record, but I think to try and accomplish the purpose of creating a centralized repository where folks can find that information, there needs to be some modification to the existing language, but also just be finding, cutting section one in its entirety, since as it's written now, it relates directly to cases that would have been adjudicated, or settlements that were, that reached in relation to the previous section of the bill. Okay, thank you. And so moving forward, we do support, if the committee is unwilling to reintroduce the language found in the original version of S254, it actually addresses qualified immunity and eliminates it as a defense, as an immunity from suit. We do see a value in continuing the conversation around this issue. I think we've seen today a number of places where folks have looked for more clarity around how the law is operating in Vermont, and what the legislature's role might be in defining those barriers to suit and making sure that victims of police and government misconduct have access to justice. So we support section two as included in the bill. And also, I know other folks to, I guess get to the question that I've heard from other folks would support expanding that to other government officials since qualified immunity is not only applied to law enforcement officers, if that's where the committee wanted to go, I think it's worthy of having that larger discussion, but also supportive of the language as passed by the Senate in section two. So I think that largely wraps up my testimony. I'd be happy to take some questions. And I think just one of the things I wanted to respond to from earlier, there was a question about, what does this mean to individual officers if S-254 is introduced, it was passed? And the short answer is nothing unless they're acting in bad faith and knowingly violating the law. That's what the provisions of indemnification in the bills introduced were set up to do is to make sure that if officers believe they're acting in good faith, but it actually violated someone's rights, it's a municipality, it's their employer who is taking on that liability because it's their responsibility to provide the adequate training to comply with existing law as enshrined in the constitution of Vermont statute. So I think that's just one of the points I wanted to respond to, but happy to answer any questions that folks might have. Thank you. I'm so sorry. So my question is about section two and the reporting and the question of whether to kind of leave that as is and have it be a really focused report on the doctrine of qualified immunity as it applies to law enforcement, which seems like a very particular body of case law and very particular set of conditions or to expand to this broader study that looks at all government officials who are sort of covered by theoretically, could invoke sovereign immunity. So the, I guess on the pro side, I think like, yeah, like look at it all and on the cons side, I worry do we end up getting a study that then is really more diffuse and doesn't drill, doesn't have just given time and capacity, doesn't drill down as much into some of the questions that are really specific to law enforcement and how the doctrine has been applied there. I'm just curious to hear any further thoughts that you have on sort of like the... How do we weigh that? So I would say that my, our preference would be to maintain the current focus on law enforcement misconduct, but that said, if it was a policy choice by the committee or others that they want to expand that inquiry, I don't think it would change too much in terms of understanding how the doctrine works and applies because it has have similar application for government employees, whether they are law enforcement or other government employees. So I think short answer would be, we support the narrow focus of the bill as it's written now, but also would support expanding that if that's where the committee wanted to go. Thank you. Thank you. Yes. Thank you. Thank you so much. Thank you. Okay. Let's see, Mia Schultz, Rutland NAACP. Good morning. Nice to see you. Hi, how are you? Thank you for being here. Thank you for having me. I will just apologize in advance. I have the flu. My son, you know, the mask mandates were lifted and our whole family got the flu. So I am here and that shows how dedicated I am to speaking on this, on, on this legislation. And I want to thank you all, the chair and the members of this committee for having me here. And again, my name is Mia Schultz. I am the president of the Rutland area NAACP. And the national NAACP has made a commitment to push to the end of qualified immunity. And so therefore that is why I'm here. They have tried to push this also on a national level through the George Floyd Act, which has yet to be passed. But it is the one, is one of the areas of police reform that all the branches that we have across the United States and the national office support. I'll just also say that our organization has been often accused of having an agenda. And I'll just say that we do have an agenda and that is the same agenda that we've had for 113 years, which is to disrupt inequality, dismantle racism and accelerate key change and key areas, including areas like criminal justice. So I'm totally okay with having that agenda. And that's the reason I'm here. America's policing system doesn't work for everyone. And that's not an opinion. It's a fact, it's backed up with data, both qualitative and quantitative data. And we can see that in our disproportionate rates of incarceration in the state. We can see that in our traffic data and beyond. And I can see that with the qualitative data from the many people that come to me with their stories of police abuse of power. So it's imperative to pass meaningful legislation and do it often and do it over and over again because these laws have been enacted over time. And we have to uphold and uplift the commitment that was made in particular in Vermont. We made a commitment. And I know that y'all, I don't have to remember that commitment, we made that commitment in 2020 when we saw, we all witnessed the murder of George Floyd before our eyes. So it is imperative that we continue with that commitment to pass meaningful legislation and pass it often over and over again and make it meaningful. So I'm here to support the original, introduce legislation to end qualified immunity. And I just wanted to like say that number one for this would be only for police. Like I understand that this might be broadened but at this time we are only requesting that this happen for police and not anybody else who has that protection. It also will not lead to an influx of cases because it's not meant to police punish police for simple mistakes or mishaps that is meant to, it's only meant for the most egregious and intentional behavior. I know that Falco, he went in, Falco from ACLU has articulated this very well in this session. So I don't have to go into detail about what qualified immunity ending it looks like in the original introduced legislation and what it really truly means. This is about accountability. And while our opponents and people who do not support this might argue that there's already accountability baked in but to what extent and what numbers and where's the data that reflects that. And what would accountability look like for communities of color, black and brown communities who have like I said, like we know have been disproportionately affected by the abuse of the policing system. So what does that look like for them? If they see that there is accountability baked in to the system, there may be along with many other legislation, other legislative acts, a healing of that repair between our communities and the police. I mean, even with the passage of Act 56, for example, in Bennington, there has not been, I live in Bennington, there's not been a clear pathway for complaint systems. In fact, there is an active lawsuit for that for a couple who made a plea against the police department and they eventually had to leave town because of the way that that complaint was handled in the police department, the town manager and the select board. So that does not ensure safety and accountability in any way. I know that because I live that because we see that. That is all, that is really all we see that. This is not data, these are not numbers, these are human beings. And so when I hear that there's a crisis in law enforcement, I hear that that crisis is more imperative than the crisis that black and brown people have been experiencing for over 400 years. And I hear that their lives are more important than our lives and that we cannot work together unless we place a hierarchy on our lives. And I think that that is not the truth. I think that we are better than that. And I think that we can see all of our lives having value. I also think that why would a righteous police officer be scared of consequences for their actions? Why would they be scared of that? Again, this is not a witch hunt. This is for people who are egregious against other human beings, who violate their civil rights, righteous police officers have nothing to worry about. And we literally hold every professional who holds people's lives in their hands to that same measure. Think about doctors. They have malpractice insurance. They're held accountable as well. So when I hear the impact that it would have on the law enforcement community, it kind of triggers me a little bit. You can see and it chooses, and this is a career that they've chosen. It's a career that they've chosen and those righteous police officers have nothing to worry about. So Vermont has this other opportunity right now to uphold the commitments that they made after the George Floyd and the racial reckoning and meaningful police reform should be a top priority, especially in the state of Vermont where these racial disparities are so incredibly drastic. And this should not be difficult to do. So again, I'm in support of this bill as it was introduced because that had the real accountability in it. And it is now, I just cringe at the unintended consequences piece as these are theories with no basis in reality. And there's never been a pathway to be able to test this, to be able to see that accountability works and repairs our relationship. And it's not anybody's position and to predict the future, but I tell you what is happening right now is not working. And it's not working for black and brown communities. And nobody knows the consequences, but I do know that it will help with the power dynamic to have between black and brown communities and marginalized communities and the police if there's accountability. And I think as a person who hears again from real people every day what has happened, the things that have been in place, they have not been effective. They've not been truly effective yet because we need to keep pushing because this is 400 years of oppression. This is 400 years of abuse from a policing system rooting, rooted and catching slaves. It's gonna take a lot of work. You're gonna have to be bold. You're gonna have to stand up. You're gonna have to honor that commitment to really, really eradicate the abuse of power that happens in our policing system. I appreciate it again, you having me here to speak and I'm welcome to take any questions. Thank you so much, Shani. I do have a question. Thank you so much for your testimony. I'm sorry to hear that you're not feeling well. And my question, I don't, at the risk of, well, your testimony is really powerful in terms of the relationship between law enforcement and black and brown communities in Vermont and I don't wanna move away from that conversation. I think one of the things that comes to mind for me in the context of these conversations just points within the governmental systems where the state government has tremendous power over citizens. And another area that always comes to mind for me is the Department of Children and Families and areas where someone has the power to remove a child from a home. And so when I'm thinking about this question and this sort of like floating these ideas of whether to expand this conversation to other entities besides law enforcement, I guess I'd just be curious if you have thoughts to offer on sort of broadening the umbrella to some degree. I would absolutely appreciate broadening the umbrella. I think that we can start with the entry point which is policing and we can move forward but absolutely would have no objections to broadening the umbrella whatsoever. Yes, you're right. That is an area in which we see a lot of egregious behavior as well. I've had to also do connect in cases regarding with the Department of Children and Families and I know people who have worked within the system and there is a lot of power there. I would love to see that happening. I was really simply here to make sure that the original introduced legislation came back, to be honest, was really disappointing to see all of the cuts but I'm definitely not opposed to broadening it. Thank you. That was really helpful. Thanks, thank you, Dean. Well, thank you so much. I so appreciate you being here and I do hope you and your family feel better. Thank you. All right. Take care of yourself. Thank you all for having me. Yeah, bye-bye. Okay, David Slay. Welcome. David Slay. Thank you. I'm recovering from surgery and my dominant hand is in the sling so I'm using a mouse with my left hand and I always click on the wrong button. So, thanks for being here. Well, we see you and hear you, so welcome. Thank you. I appreciate the opportunity to address the committee. As you likely know, I testified in support of S-254 as it was originally introduced. Excuse me for the record. I'm sorry, can you please introduce yourself? Sure. My name is David Slay. I'm a lawyer from St. Johnsbury. I've been practicing in Vermont for about 39 years now. I have represented people in 1983 cases against police officers in situations where there were allegations of excessive force and I've defended police officers who've been accused of excessive force. And one of the reasons that I was most sort of spiritedly opposed to the doctrine of qualified immunity is that it is truly an anomaly in our law and it's inimical to the fundamental fact-finding process of our courts. As developed by the United States Supreme Court, the doctrine primary thrust is to free officials not only from liability but from even the scrutiny that the normal civil process allows plaintiffs in every other suit so that if I was sued for malpractice or a doctor was sued for malpractice, if the complaint stated adequate facts to support a notion that there had been a deviation from the standard of care, both parties are then allowed a very free-ranging right to discover facts to support their allegations. And the doctrine of qualified immunity truncates that that it prohibits discovery unless plaintiffs meet an artificially high factual assertion in their initial pleadings. And that really frustrates the ability of plaintiffs who have suffered constitutional wrongs from developing their cases as any other plaintiff would. And I think that's fundamentally wrong and I don't understand why it's thought to be justified in the context of law enforcement officers in particular. So in the current version, in section one, it says something about the court, the legislature's intent is to adopt the holding in Zulu. Zulu went some distance in providing accountability but there's broad language in the opinion that the court was essentially importing the theory of qualified immunity expressed in various United States Supreme Court decisions. One such thing might be what they call the collateral order doctrine, which allows a defendant in a case exaggerated right for interlocutory appeal. It might also be interpreted to do, as I've just said, truncate discovery in all but the most unusual cases. So while Zulu says some things about how qualified immunity would operate under article 11, it certainly doesn't address in particular the more onerous aspects of the doctrine as it's gone forward. So that may sound like inside baseball, but it's really a fundamental deterrent to plaintiffs who have suffered constitutional torts. Secondly, while I've listened to a great deal of testimony both in the Senate and before your committee about officers being afraid for their families and their homes and that if the qualified immunity doctor is abandoned that these officers are gonna find themselves out on the street. That's just not supported by any of the data. There's a recent sort of survey that was published in Yale Law Journal this year about how qualified immunity cases have been working through several federal districts. And in less than 1% of those cases were officers individually held financially responsible. In the original version of S-254, there were indemnification provisions in the statute that would protect officers, even officers who had religiously violated the constitutional rights of Vermont citizens. It effectively shifted the burden to their agencies to provide liability insurance. And as Mr. Woodward and the rest of the insurance community knows, underwriters would then be incentivized to make sure that officers were trained adequately that they conducted themselves lawfully in order to avoid having to pay judgments. But the notion that deleting or abandoning qualified immunity as a doctrine would lead to financial ruin for police officers is just false. Lastly, and I don't have any data about this and I would support the committees going forward with the current proposal of S-254 to do fact-finding. Our local dominoes can't find drivers for their delivery vehicles. My suspicion is none of the proposed candidates for that position asked the dominoes manager, what is the state of liability for me if I crash your car? People who are looking for jobs, jobs that they wanna do particularly and jobs that have the importance of being a police officer, I don't think go to their first interview asking what the applicable standard of liability for misconduct is. So I would certainly invite the committee to delve into the law enforcement community's claim that somehow that if the doctrine of qualified immunity was abandoned that even fewer people would apply to be an officer. One might suggest if someone wanted to be a police officer do the important work that police officers do and decided not to because he realized that he could be held accountable, perhaps that's a candidate that shouldn't get the job in the first instance. So I don't wanna go on and on. The only last thing I wanna say is this. I make my living practicing law. When people come to me with complaints, whether it's about another lawyer, doctor or a police officer and they wanna sue, most of those suits, if people like me take them are taken on a contingency fee basis or in a 1983 case with the prospect of getting fees if you prevail are analyzed very carefully because it's the lawyer who's going to risk whatever money and time he or she is putting in in order to get a judgment. And that's an inherent screening on all civil cases. And certainly it's a screening that has a higher level, a higher bar if you will, if you're gonna sue a police officer. Most jurors like police officers, I like police officers. And in order to get a judgment against the police officer you'd have to show that they did something truly egregious and there will be no flood of litigation if the doctrine of qualified immunity is ended in Vermont. Thank you. Thank you very much. I appreciate your testimony and so, and especially the perspective that you bring as someone who's represented kind of parties on both sides of these 1983 cases. So I think one of the things that I've been thinking about is I read and learn more about the qualified immunity doctrine and how it operates. And then have heard kind of some of the concerns about what would happen if, you know, we had removed it as introduced in the Senate bill or even if we just study the question of how it should apply, how we might wanna address its application in Vermont law is that, you know, it will create somehow uncertainty for law enforcement officers. And yet the more, and I'm not a lawyer, but the more I sort of have delved into the law and the doctrine of qualified immunity it seems to me that to have any predictability now about when it will or won't apply, a law officer needs to know like a whole body of case law and whether there's, you know, a case with similar or nearly identical fact patterns. And I just wonder, I wanna give you the opportunity to comment on, I mean, my perception just as a lay person is like, well, wouldn't sort of removing some of that from the equation and just making it really clear like the, you follow Vermont statute, you follow Article 11, you follow Fourth Amendment and that's kind of your guiding principle, not this question of like, well, is there a case out there where someone was libel or, you know, adjudicated as libel or not libel in kind of these very unique set of fact patterns that law enforcement officers often find themselves in the field and I guess it just, since you're someone who's practiced on both sides, I'd love to hear just your response and thoughts to that. Sure, the clearly established right, the portion of the qualified immunity element has been perhaps the most fuddling and confusing nationwide. I think as Mr. Shilling said, you know, some courts have said that sickening a dog on somebody who's lying down is a violation of clearly established rights, sickening a dog on somebody who's kneeling is not. The question should be, was sickening the dog on somebody reasonable use of force under Article 11 or the Fourth Amendment? And that would allow for a much simpler analysis, I think on all sides. Thank you. I can't see any other hands. Thank you. Thank you very much. Appreciate you being here and hanging with us and we are actually on time. It's amazing. Thank you to all of our witnesses and we will adjourn and we will be back here. I just got a question before you adjourn, whatever it is. Yeah. I listened to a lot of opinions and many pros and cons obviously on both sides. Can we have somebody for my benefit? Sure, we'll see what's going on here, but for my benefit as to come in and explain the process under the 1983 and the checks and balances that the courts look at for qualified immunity. It seems like they make it sound like, oh, well, if we got qualified immunity, it's never gonna get to that point. Okay. Do we have a list of cases in Vermont? Not Michigan, not Detroit, not whatever, it's in Vermont of people who have been brought before us and have been granted or not granted qualified immunity. Where do we find that? Can someone get that for us? Yeah, so I think that's in CPS's website, yeah. So I hope that whole document actually has ever, yeah, it has a, yeah. Does it have race and so on so forth in all cases also? Not that I know, how do we find that out? So we can certainly have Ben talk to us about that. Yeah, absolutely. And then also, I do think that that document is helpful in terms of the second circuit cases, which is our jurisdiction with applied. Thank you. Hey, great. And so actually, so one more thing, well, we have been keeping 184, just five little homicide. Openly for your vote, we passed the bill as passed the Senate. We didn't make any changes. So would you like to vote or? Yeah, yes, I'm a yes vote on that one. Thank you. Great, thanks. One to 10. I would still vote yes, Representative Burdette. Very funny. Thank you. Okay. And then I don't know if I have any takers for reporting, but people can say that was an advocate want to report it or not, but you can get back to it.