 Good morning and welcome to the House Judiciary Committee. And sorry, we're starting a little bit late. We have some IT issues. We are starting as we continuing on S-254 ahead. They need to be covering damages for article 11 violations by law enforcement and a recalculated immunity. And we are starting with effort to get a council. Good morning. Good morning. Yes, Ben Novogrovsky from the Office of Legislative Council. I just wanted to briefly take an opportunity to just clarify some of my testimony from yesterday and one correction. Representative Alon had mentioned adding the term remedy to the second prong. And I had said that it was a verbatim recitation. In my case on the 11th hour amendments in the Senate, remedy should be a part of that second prong as it is part of the case. So I appreciate Representative Alon keeping me honest on that one. And I just wanted to correct it for the record that that was an oversight that can be added. And easy. Yeah, easy one, exactly. Right, right. OK, well, no worries. Yeah. And just a second point of clarification. We were talking about what those remedies could be. And in the Zulu case in paragraph 38, there were some remedies that were put forth by the state as being potential remedies to monetary damages, one being a 1983 action, which we discussed yesterday, another being injunctive relief. And in that case, prohibiting the state from stopping vehicles with covered registration stickers or from issuing exit orders based on suspicion that the driver possessed. Cannabis, a criminal procedure rule 41 motion, which provides procedures for search and seizure or seizure forfeited property, which I think this committee has the knowledge of at this point. And then administrative complaint against the officer or the assertion of rights in a criminal proceeding, such as a motion to suppress. In the case, those were considered to be insufficient because it was a case against the state of Vermont and seeking damages. And it went in to say that 1983 is one of the wouldn't necessarily be an alternative remedy because it would be only available against state officials in their individual capacity. And so that in and of itself was, and so for those reasons, those remedies put forth by the state were considered insufficient. But in potentially another case, depending on the facts and what's going on, perhaps they could be, but I just wanted to clarify that those were put forth by the state in that case were deemed insufficient. And they went on to talk about in the 1983 remedy and how it interplays against the state or an individual. All right. Thank you so much. Any questions? So are we talking about page two, number two, there's no meaningful alternative remedy? Yes, remedy would be in the context of the particular case. Correct. Yeah. Thank you. Thank you. Okay. I'll move on to witness night. Actually, before we further witnesses, I do want to welcome we have two UVM interns here. So welcome. Nice to see you. And it's a great, great program. I know I'm better, I'm benefiting from it. I have an intern as well. So, okay. Great. So start with the commissioner of the Department of Public Safety. Good morning and welcome. Good morning, madam chair, members of the committee. I think I'm a little backlit here. Sorry about that. I was actually in the building yesterday. Sorry, I missed you this morning for the record Mike Shirling, commissioner of public safety. I think my testimony would be relatively brief and I'm going to defer to other members of our team to provide a little more depth. To begin, I just want to emphasize the extent to which both the Department of Public Safety and police professionals around the state are committed to process improvements, modernization, reforms, trust building on a host of different topics and levels. And that is sort of the centerpiece of much of the work that's being done operationally on a day-to-day basis. With that, however, as the background, we remain opposed to this bill in any form for a number of different reasons. Beginning with the fact that the underlying premise here, as with a number of different things that are being debated right now is the premise that law enforcement cannot be trusted. And I think that is both a flawed foundation and one that potentially damages our state as a whole. We're opposed also because this bill singles out a very small cross-section of government employees for enhanced options for litigation. That is not constructive. We also see the bill as regressive, trying to address things at the back end by creating new avenues of litigation or memorializing or attempting to memorialize ways to enhance litigation is regressive. We should be investing in great hiring practice and great training, good law enforcement executives, exceptional policies, and then the process by which you assess the efficacy of all those things and constantly improve them. So for a host of foundational reasons, we remain opposed to the bill. I will let our, on the three components, I'll let our team get into more details. We oppose the so-called codification of ZULO in large part because that's not exactly what it does, but I'll let the team get into more detail. On the public records component, I would offer that I think it actually is a step back from where we are right now. Any settlements or litigation are public on the government side to include the names of the government employees affected by or targeted by the litigation or settlements. And I think the way this is drafted is actually a step backwards in transparency from that. And then finally, I'll just make an observation regarding the report that's contemplated here. When we began this debate in earnest after a press conference announcement about the original bill back in January, we were, we requested and were provided by the Senate a list of cases of concern that were purported to be illustrative of the need for changes in the legal landscape here. We did an in-depth analysis of all those cases, that analysis, a synopsis of that analysis is posted, I believe to our website, but certainly to Senate Judiciary's website. So the cornerstone cases, the foundational concerns that were originally pointed to as an indication for the need for this are things that have been already looked at. So I'll pause there to ask if there are any questions, anything like me to elaborate on and if not happy to allow you to move on to the next witness. Good, thank you. Thank you so much. Appreciate your testimony. We do have at least one question for you. And if one of the other folks on your team is gonna address this in greater detail, then that's fine. And you can just press, I'll just await their testimony, but I was wondering if you could say more about the analysis with regards to the kind of the record, you know, keeping requirements here that you think it's a step backwards on the current level of transparency. I just would like to understand the mechanics of the analysis a little better. Yeah, thank you. I believe in the last draft that I saw and candidly, this changed about every half hour over the course of a day or so on the Senate side. So it's conceivable that I'm working from some other copy. But there appear to be in the version I'm looking at protections around disclosure of certain components of public employee names and things of that nature in the bill. And those protections don't exist, nor would we expect that the name of a public employee who is subject to litigation should be private. It's not now. So that's what I'm getting at. I think maybe it was re-aligned since that draft. So now we're talking about the record of 56, await the record of case disposition, I think, right? Yeah, we're looking at the bill as passed by the Senate. And I'm sorry I didn't say that when we started to get everybody on the same page, but... And it says all judgment settlements and their underlying complaints are subject to public disclosure unless an exemption applies personally went to one VSA 317. So I'm guessing they may have heard some of your concerns and then just really tried to tie this provision to current law. That seems to be the case, but... Yeah, I appreciate that clarification. I would simply observe at this stage then it's redundant and there's no need to add that language to anything because it already exists. I think what we've heard from our legislative council yesterday was that while the judgments would be... The judgments would be available under current law. The settlements may not always be public documents. So I think this brings kind of judgments and settlements into that was how we understood the intent of this provision during our walk through yesterday. Yeah, respectfully, I don't see any exception nor have I ever worked with a lawyer in government that has argued for an exception to make a settlement agreement on behalf of... Done on behalf of government, private. I've never heard of that. We've never operationalized that in any of the agencies that I've worked in, whether they're law enforcement or in the agency of commerce. I respectfully disagree with that analysis. Okay, well, thanks for speaking to the language where it's at right now, I appreciate it. So yeah, thank you so much. I wanna make sure I understand your testimony based on this language you feel that it's unnecessary, it's redundant, doesn't change anything, is that? That's exactly right. As you've outlined the final version, the objection simply is it's a duplicate, it's not necessary. Settlement agreements on behalf of government are public record now. And are things that historically, the media has actually asked for lists of and in organizations I've been part of, have always been provided. Okay, thank you. I should note for the record, in municipal government, that's probably not universal, but in most instances, the elected legislative body typically has to sign off on payments for these kinds of things. So that has done, votes can't be taken in an executive session. So beyond the fact that the settlement agreement is public, they have to act in public session to vote to be able to settle these kinds of cases. Thank you. Thank you. Not seeing any other questions. I don't know if anybody, I do see Tucker Jones, I don't know if you wanted to testify or add anything. Good morning. Good morning, Madam Chair. Yes, I have some brief testimony Thank you. Absolutely. Provide. So good morning, representatives. My name is Tucker Jones. I'm an assistant general counsel for the department of public safety. So as you know from commissioner, Shirley, the department does not support this bill as passed by the Senate. The bill does keep this topic of qualified immunity alive in some form. And the department does not support the merits of that policy direction. But in addition, specifically in regards to this idea of codifying the Zulu case, I believe it's legally unnecessary to do so. And in the way it's formed here, it raises more questions than it answers. So I originally raised this Zulu case to Senate judiciary. And I raised it as an example of why courts endorse the principles of qualified immunity. And my understanding is that this case was included in the bill as a compromise. And the purpose of putting this into statute was to make sure that this cause of action applied to all law enforcement officers because the facts of the case dealt with a state trooper. And in my view, it's unnecessary to do this because courts generally do not distinguish the type of government official who violates a constitutional provision as a matter of law. For example, whether the violator was a state municipal or county law enforcement officer is generally irrelevant for a finding of a constitutional violation by a government actor in the first place. Rather, it was just the facts of the particular Zulu case that happened to involve one type of government actor. But now in this bill, in putting the Zulu elements into statute, the bill does not say that the cause of action applies to all government actors. Rather, it essentially attempts to limit a constitutional claim under Zulu to just law enforcement officers. So again, typically the courts wouldn't distinguish between the type of government actor for a constitutional claim, but this section 5607 appears to limit those claims to just law enforcement officers. So a question arises about whether other types of government officials could be the subject of a Zulu article 11 claim anymore under the terms of this bill. A related question is whether the bill has the effect of abrogating the Zulu decision in whole or in part. That can happen when the legislature attempts to cover an entire subject matter that used to be addressed only in the common law like this Zulu case. That would become a legal question for the courts and it would raise questions like, for example, whether a little legislature is attempting to limit the Zulu article 11 claim to just law enforcement officers. Another issue is on page two, subsection two, and it's already been addressed about the word remedy being missing from that subsection. This is a word from the Zulu case and I wouldn't want to admit that word because of the quite lengthy analysis of what the word remedy, alternative remedies means in that case. But there is also in addition to the fact that that word's not in there right now, something of a paradox here because by creating a new statutory cause of action, the bill is essentially creating a new alternative remedy. And the question arises of whether that affects the meaning of subsection two, at least as it was understood by the court when it authored that case. It just may be another question for the courts trying to figure out what this bill means. So that's all my comments on this idea of codifying Zulu. The commissioner addressed 5608 and from the department's understanding, these records are generally public. So it appears that this section essentially states the law as it exists today. And then as for the report called for in section two of the bill, of course the legislature can ask legislative counsel to study whatever topic it wants to. But I'm not sure whether it's necessary to ask legislative counsel to do so informal session law. An informal request seems to net the same result as contemplated by that section. So these are the extent of my thoughts on S254 as passed by the Senate. And I appreciate the opportunity to address the committee this morning. Thanks for your time. Yeah, thank you. I just wanted to thank you so much for joining us this morning. And I just wanted to ask about your comments and just try to really understand DPS's position on section two of the study. Because I think I've heard the commissioner and maybe even yourself say, you know, the DPS's position is that they don't want for their study on this because it essentially keeps the issue alive. And I've paraphrased incorrectly, I apologize, but that was my takeaway. But now I'm hearing you say, you know, it's more just redundant, unnecessary and we can ask our legislative council to do anything we want, but it just doesn't need to be in session law. But so I just want to get real clarity from the department on their position about this report if possible. Yeah, both. I mean, we're not saying that the legislature can't inquire itself further, right? It's, that's obviously within the purview of the legislature to work with legislative council on this topic once. Rather just more specifically, I don't see a need to necessarily put this type of request in session law. If it were a study that we see in other contexts where it was asking some other entity to engage in some task like the sentencing commission or joint justice oversight, something like that, I would understand that would be in session law. But because this is just a request of legislative council to look into a topic, I'm not sure it's needed to be in session law. That's all. I guess I heard two different things though and I'm just trying to get clarity on if it's both and or really one or the other. I heard like, I appreciate what you're saying we could direct legislative council to do any number of investigations for us without having to kind of codify that request in statute. And so it may not be necessary, but then I also think I've heard the department say, we really would prefer that you don't do further study on this issue and just and just and don't continue to investigate and do that legal analysis and have that come back to you. And I just want to get real clarity on if that's the department's position, like don't even talk about this, don't study it anymore. Yeah, it's a both and so yes, as to the merits, you know, there was extensive testimony orally and in written form from the department on why we think on the merits of this issue of removing qualified immunity for law enforcement officers in civil court is a bad policy direction to go in. And the merits of that isn't really necessarily before the committee in the form of this bill as it was passed, but the nothing has changed the department's position on that in light of all the testimony this session so far. So the department continues to oppose any legislation that singles out law enforcement officers to remove that foundational legal protection of qualified immunity in our civil courts and the explanation I won't go into in depth here, but rather just kind of reference the merits of that are addressed in on the legislature's website under S-254, but it's under right now it's under the Senate Judiciary's folder there with DPS's overall position on the merits of that position. Okay, thank you. Barbara and Martin. So Tucker, if we were to make changes to the bill and had it applied to all state employees, would that be more satisfactory? Obviously the other things would have to change because of Zulo not being pertinent to DCF workers, for example, but assuming we went back to a model or went to a model that limited immunity for all state employees, how would you feel? Well, just to clarify the Zulo decision didn't limit immunity specifically qualified immunity to anyone. So that's not, that's not- I'm just talking about S-254 as a vehicle and whatever that looks like, if it applied to all state employees and not singling out law enforcement. Sure, so consistent with what I was saying earlier about how this claim really would apply to all government employees, if you did that, there would still be this secondary question of what the second prong really means in light of the fact that you're putting it into statute and whether that changes the meaning of what an alternative remedy is in light of the fact that you're creating an alternative remedy by putting it into statute. And I think that this was not explored in any depth previously. This is really all coming out for the first time now. And, but there's really a threshold issue of whether it's necessary to put any of this in statute to begin with. I understand we might, I just wanted to hear your thoughts about law enforcement versus other. The other thing, and I think it was something that the commissioner said and not you thought that we were going from a place of not trusting, law enforcement can't be trusted. And I guess I'd like us to think about this differently because we don't, we have laws in place obviously for a reason. And if we make the assumption that so given qualified immunity or taking away qualified immunity isn't a trusting as much as an accountability thing in my mind. And I guess I would like to ask you to think about it in terms of like, why wouldn't we hold state employees accountable like we do the private sector? Like why not give everyone qualified immunity and just have a big, we all trust each other? You know what I mean? Like that doesn't make sense to me. I'm not sure what the question is that you have. Maybe we could rephrase. Sure. So would it make sense to give qualified immunity to the private sector? I'm not the sale, but I'm just trying to wrap my arms around why qualified immunity is an entitlement somehow. Sure. And so, you know, and here we're kind of getting into the merits of the underlying policy to begin with, which I'm happy to do. And we testified to some length about this with the Senate. The logic here goes back quite a bit with the courts recognizing that we're essentially paying government employees to affect other people's rights, including their constitutional rights. And that's something unique in the public sector. So in particular for law enforcement, for example, we're paying them to affect people's rights to be free from search, from seizure. We're paying law enforcement in particular circumstances to take people against their will into custody and things of that nature. And so long ago, the courts determined that there must be a balance in place for when someone whose rights have been affected by a government official goes to sue that government official for money damages, that they should only be allowed to do that if the government official was on fair notice that their conduct violated that person's constitutional rights. And so over time, the courts created an analysis to determine whether that is the case or not to permit money damages in that circumstance. And, you know, the Vermont Supreme Court has long recognized that principle. The US Supreme Court has long recognized that principle to strike that balance. And the question becomes, is that the right balance? Is the court reaching fair and balanced outcomes in these cases for money damages against government officials and in this context against law enforcement officers? The department's position from the beginning, as we looked at the case law in this area and specifically the Second Circuit case law, the Vermont Supreme Court case law on the application of this doctrine, specifically to law enforcement officers and especially in the context of the use of force. Our conclusion was that our courts are applying the doctrine in a fair and balanced manner to make sure that the government officials are on notice of what conduct constitutes constitutional violation and what conduct doesn't. And that individuals are being appropriately compensated through the civil liability system as it exists today. And so augmentation of that system is not necessary to ensure fair victim compensation in appropriate cases when a government official harms a person. And so that's the crux of the department's position and that will not change. I don't suspect anytime soon in light of our, we've already studied the issue. And so the legislature could study the issue as well, of course, but we already have and that's the conclusion that we've come to. Thank you. Can I ask one quick follow up? Yeah, I do want to keep it to the four quarters of the document that was passed by the Senate, but go ahead, Barb and then we'll. So Tucker, that your answer just supported it just being law enforcement. I know you don't want any of it, but your explanation sort of framed in why law enforcement is special and needs the qualified immunity given the ability to hold other people against their constitutional rights, blah, blah, blah. So anyway, you know what? It's not going to be a short answer. Sorry, I can get that passed, thank you. I can just do a one sentence answer if that's acceptable. Madam chair, my answer was just tailored to the specific topic of eliminating qualified immunity for law enforcement officers specifically. So that's, I'm just talking about that particular context. As it relates to other government officials that that topic wasn't really ever before before Senate judiciary. We didn't get into the details of how it affects for example, DCF workers or others. So I'm just trying to kind of specifically address how it impacts the political act. It just, your office mentioned it only being law enforcement. So that's what I was responding to. Thank you. Martin, Jay. Yeah, thank you, Tucker. So this, the bill as we discussed codifies Zulu, but I had a specific question with respect to the third prong. What is your understanding of how Vermont courts interpret clearly established law? And Representative LaLon, I think I didn't watch the testimony yesterday or the walkthrough in your comments, but I think this question came up and maybe this is what you're referring to of whether a statutory violation could be a violation of clearly established law or not. And one area that this would come up in is the new use of force statutes and whether that could be a clearly established law that an officer could violate. Is that kind of the direction that you're... Yeah, yeah. I mean, it also, it's been said and it does certainly appear to be the case on the federal court level that the courts are only looking at judicial precedent to determine if something's clearly established law. And I haven't done the in-depth review of all Vermont cases, but just looking at Zulu, it doesn't clearly say if they're only looking or should only look at precedent or should they look at other sources of law that could be clearly established. And I wouldn't even leave it just at statutory law. I would also suggest, well, I mean, so just real quickly, put it in context, the Zulu case goes on and says clearly established rights is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Now that seems like presumably law enforcement can understand that that's the situation from statute, from policy, or even from training. And I guess I'm just wondering if we're really narrowly looking at it in Vermont courts or would they look at these other sources to see if the law enforcement officer should have known what the law was. All right, so just to step back, this particular Zulu cause of action, it was specifically regarding a violation of Article 11. So that's an element, I believe, of the offense itself that there has to be a violation of Article 11. So if we take it out of that Zulu context, though, there's this other question of whether clearly established law applies to statutes and policy. And it does apply to statutes. And I believe it was even just that, the original seminal case, Harlow V. Fitzgerald that actually said that. But in the context of the Vermont Supreme Court, I think the best example I could give you is a 1994 case called Moray V. Yee. And these cases, so what I did is I went and looked for every Vermont Supreme Court case I could find that addressed qualified immunity and law enforcement. And I compiled them into a table. And that table is part of this unified position statement that's on the Senate Judiciary's S-254 website. And so that particular case in 1994, the Vermont Supreme Court held that qualified immunity did not apply to an officer who engaged in a high-speed pursuit resulting in injuries to others because the doctrine does not extend to situations in which the legislature established a clear duty and liability for a breach of that duty in statute. And that was a reference to the fact that Vermont had at the time and still does, a statute governing emergency vehicles and their ability to exceed the speed limit and things of that nature. And the court specifically said that in that context, and it was law enforcement, that that statutory scheme about high-speed pursuits was a statute that created a duty and liability and therefore that satisfied the clearly established standard. And so QI didn't apply, qualified immunity didn't apply there. And so that's just I think a good example of you could take that case and then analyze whether the same argument would apply to the use of force laws that you passed last year. And it's not been decided yet. It hasn't been analyzed yet by the courts because those statutes were just passed. So it'll take a few years for the court to really analyze that. So statutes, yes. They can affect a clearly established, right. As it relates to policy, I think the relevant case is Cain v. Lamoff. So that's from 2007. And in that case, the Vermont Supreme Court just said, generally internal policies and manuals provide preferred standards, but not legal requirements for which individuals may hold the state liable. And so that's a legal standard that they came up with there that I think you would see people referencing that to say that a policy alone does not affect the clearly established standard. The analysis under clearly established law. So I think that's how it shakes out as far as I know. Appreciate the answer. Thank you. Yep. Could you, I'm sorry. Would you just tell us what that court case is? Do you remember how the citation that you had? Sure, sure. That's Cain v. Lamoff. So that's 2007, VT 91. And that's paragraph 11. And that's kind of cited as a strong principle for the proposition that policy does not, does not create kind of a legal requirement that people can sue under. I should mention that the federal district courts, I've seen them question whether that is in fact the case. And so I could send, if you're interested in this topic, I could send you the quotes from, I believe it was Judge Rice in the district court questioning whether they can really establish legal requirement from a policy. So it has been questioned by the federal district court in Vermont, but as it stands in the Vermont Supreme Court, that seems to be the law of the land right now. Thank you. And what was the other, the first case regarding statutes, the citation? Yeah, that was more AVE. And that one was 162 VT 366. And I will also just add all of these statutes, or sorry, all of these cases and other interesting cases in this area are on pages 16 to 18 of the Department, this unified position statement on the legislature's website. So you could find them all there as well. We have it now. Yeah, thank you. Thank you. And we're just close to our committee page. So yeah. Can I ask a question? Sure. There's a lot of things that we're talking about and I always get buried in like the legalese. So I'm gonna see if I can structure a question here. So I feel like looking at this bill, looking at these prongs you guys are talking about. And so law enforcement officer, new or should have known that the officer violated clearly established law is what I'm hearing you say that legal precedent currently is that the new or should have known does not include professional policies. So essentially training, professional training. Is that what you're saying? That like being trained and how to engage with the public is not enough of sort of, if they violate that training that's not enough to indicate that they should have known otherwise. Yeah. So for money damages suits, generally you need a violation of the constitution or a statute to recover. And so in general, that's the state of the law. The policies are really what govern what I call HR proceedings, which would be agency internal investigations and also likely professional regulation investigations, decisions through the Act 56 process, policy may impact that. But in terms of money damages suits, we're really looking at constitutional violations or statutory violations. So I don't know if this is a question for you. Sorry, can I? Yeah. So I don't know if this is a question for you, but how then are currently officers learning about what their statutory obligation, like I guess I'm maybe I'll just say that this conversation is leading me to in the direction of feeling like there is further statutory clarity needed. If the policy of training policy isn't enough then that is concerning to me. Maybe I'll just leave it at that. I'm good. Just if I may Madam Chair, just briefly, as it relates to the use of force standards that the legislature passed last year, those were in statute. And in addition to those statutes, the state did come up with a statewide policy on them, basically elaborating on them. And both the statutes and the policy were trained to all, I believe all law enforcement officers last year, well, the white who's here did a lot of that training. And so that's how it gets, that's how the statutes get conveyed and the obligations under the statutes get conveyed to law enforcement officers through those types of trainings. Because we put it into law. Yep. Thank you. Thank you so much. Yeah, thank you. Move on to Wilbur White. Good morning, Wilbur, and welcome. Good morning. Thank you, Chair Gradd. Here you are. Wilbur White, I am the founder of an organization called Mad Freedom, which is a civil and human rights advocacy organization whose mission is to end the discrimination and oppression of people based on their perceived mental states. And we have a particular interest in this bill, particularly as introduced because in Vermont, our members, our constituents, are the people who are primarily being killed by law enforcement. I think in the last 10 years, I've counted eight people who were in mental or emotional distress who have been killed by law enforcement. And so we're interested in obviously not just being able to sue because if you're dead, you can't sue, but we're interested in policies that prevent those encounters. And fundamentally, we don't believe that the right to sue, particularly for our community, is good enough. Or in many ways, we feel that right as a losery because we don't typically have the kinds of access to justice where we could even vindicate our rights in a legal system separate and apart from the existence of qualified immunity. By education and training and occupation, I am a lawyer, a trial lawyer, a civil trial lawyer. And when I was practicing law in California, New York and Massachusetts, I actually did sue law enforcement officers for section 1983 of violations. And I think the experience I gained and that has led me to the position of today that litigation is not effective and holding, quote, people accountable. And so for that reason as well, I don't see litigation as a solution to the problems that I see with law enforcement, particularly in their interactions with people experiencing mental and emotional distress. In terms of the particular bill that you have before you, man, freedom is opposed to that bill and not for the reasons that we were opposed necessarily to the original bill. But when I look at the three sections of the bills, three section of S-254 as passed by the Senate, I think that in terms of the first section that purports the qualified Zulu, I don't think it does so. Zulu is the kind of legal decision that you read as a lawyer that makes me really proud of the Vermont Supreme Court. I think it's a really good decision, really protects the rights of citizens. It's really thoughtful, well-crafted, well-written. And I don't think the codification that you're attempting here does justice to the decision. I think it raises a lot more questions than it answers. And I think Tucker Jones talked about, maybe it limits it to law enforcement officers. Or I think there's some bigger questions as well because as a lawyer you're always thinking of scenarios, what could happen? And one that when I read the way that the Senate has attempted to codify Zulu, it limits it to law enforcement and it also defines law enforcement. And so we live in a state that's border. We have a lot of other states on our borders. And there are oftentimes there are kind of cross-border law enforcement actions. And so you might get a Massachusetts state trooper acting in concert with Vermont state police. And that Massachusetts state trooper might violate the rights of a Vermonter under Article 11. And the way you've codified Zulu here, it's like, well, would a Vermonter be able to sue that Vermont, that Massachusetts state troopers and she's limited kind of law enforcement as it's defined to Vermonters. There's also a provision under Vermont state law where a citizen can make an arrest under particular circumstance and in doing so, they would be acting under color of state law. The way you've attempted to codify Zulu here, that raises the question in my mind, whether a person who was wrongfully seized by the citizen who was acting under color of state law would be able to bring a Zulu type Article 11 action given that you've attempted to codify Zulu and limited to law enforcement officers. And so I think that, you know, I actually saw this bill getting written in the Senate and to use the words of Senator Benning, kind of written on the fly. And I feel like if you really wanted to codify Zulu, it needs to have a much more rigorous process and to make sure that you are not writing a bill that has a lot of unintended consequences and actually limiting the rights of Vermonters to pursue actions, which is not something that the Vermont Supreme Court intended to do by that decision. I also agree with Tucker that there's a problem with the sec, including the second prong, even if you wanted to pursue this, there's a problem with that second prong. And when I refer to the second prong when talking about that alternative remedy prong, I read Zulu as including that second prong as one of the things that a plaintiff has to prove to pursue an Article 11 action. I read the case as including that second prong only in cases where the legislature hasn't acted, right? It says they included it as almost a deference to the legislature as judicial restraint and deferring to the legislature. So it says the legislature hasn't acted here. And so you have to, in order to pursue this remedy, you have to show that there's no legislative alternative, right, remedy. Now that the legislature has acted, I feel like if you were gonna try to codify Zulu, that the second prong would go away. And so I say that all to say this, I really think that if you're gonna codify Zulu, it needs to be more carefully crafted and more a different kind of deliberative process than that occurred in the Senate with all due respect to the Senate. In terms of the second section of the bill, the requirement that law enforcement maintain records of settlements and judgments and those being made public. Again, it's already an existing practice in law that public records of settlements and judgments by public entities are always public. In all the years that I was practicing law and I sued public entities, you can never enter into a kind of non-disclosure agreement with a public entity. They are, as Commissioner Shirling announced in municipalities, they have to get passed by that governing body and the parties, the allegations, the amount paid, that's always public. So when courts are interpreting statutes, they assume that the legislature understands the law as it exists and that when they're passing a statute then that when the other statute in that area, the courts assume that you meant something different, right? And so the question is, what do you mean? What are you trying to do here? Because there are already public. And so the reason I think you would think that you're trying to limit it because you make this reference to exceptions to the Public Records Act, none of which apply. And so I think that second section creates confusion. I think the second section actually got included in the bill because I provided some testimony in the Senate that looked at how other states have addressed this issue of ending qualified immunity for law enforcement officers. And one of the bills that I brought, one of the statutes that I brought to the community's attention was how New Mexico did it. And New Mexico has a provision in its Civil Rights Act which ended qualified immunity for all government officials that requires a public record of all judgments, settlements and the complaint. Like a depository, like an essential place so that you didn't have to like go to individual law enforcement agencies or something. It would just be a central place where these would be kept and also so you'd know whether it was being done. Because the way this bill is written, you have no way of knowing if law enforcement officers are actually following the statute. But if you, New Mexico required all these to be sent in a central place. And I think that's how they got written. That's the genesis of this provision. But I think it, the way it was actually written actually confuses, is confusing and would raise more questions than really making the system more transparent because it couldn't actually get more transparent than it currently is. The third issue about the report, there's some language here about that the purpose of the report is to understand the impact of the doctrine of qualified immunity on access to civil justice remedies for people wrongfully harmed by quote, bad faith policing and violations of civil rights in the state of Vermont. When you look at what this report is asking for, I don't think you would ever get that information. So I don't think the report is actually reasonably calculated to answer the question that you've posed. I mean, this issue of bad faith policing, I don't even know what, that any, that's just not an issue that's going to be determined in the case, whether it was bad faith because qualified immunity is not based on good faith. It's an objective standard, not a subjective standard. Also, I don't know why the bill would limit an evaluation of qualified immunity to just law enforcement officers. I would think that you'd wanna understand how the doctrine was working in general for everybody. I don't think there's any particular reason for singling out law enforcement when you're looking at qualified immunity. The same disparities that we see with law enforcement in terms of race and disability, we see in other branches of government, particularly education, people who are disabled, people who are not white or disproportionately suspended from inexpelled and punished in public schools by public school teachers. And I would be interested in how qualified immunity is working there if you're interested in how it's working in law enforcement. So I think those would be my comments on this bill. And as usual, I'm happy to answer any questions that may arise. Thank you. Thank you, Wilder. That was really helpful. I appreciate it. I wanna go, let's see, in terms of the second section to make sure I understand your testimony. So it's the, unless an exemption applies, you feel that's confusing because if I understand you just say that there aren't any exemptions that would apply. Is that the language that? Yes, I think, yeah. Under current law, I've always, in my practice, settlements with public entities are always public. No exceptions. Settlements, judgments, no exceptions. So the one possibility would be to strike that, to strike that sentence, I'm not sure that's gonna change your. Well, no, I mean, striking it in also, I mean, there's no way to enforce it either. It's like, how are you gonna know whether law enforcement agencies are keeping this? Yeah, I understand that. Yeah. Yeah, okay. Thank you. Hey, folks. Right, yep, Link. Well, going back to that same section, I mean, it sounds like I'm just, I'm looking, I'm gonna look at the cross-reference because just to the part that you and Maxine were just talking about, it seems to me that it's just cross-referencing existing exemptions in state. Laws, it's not like creating a new exemption, right? It's just sort of putting on the record. But actually that was, so if you wanna comment on that, please do it in case I've misunderstood something. No, I think that, I think that. I think that, you know, when people are, when courts are trying to construe statutes, right, that if there's some question about what they mean, you know, if it's not clear on the face what it means, they assume like, okay, the current law is this, the legislature knew that current law and then so they created a new law and so they must have meant something different, right? Because they couldn't have just, why would they write a new law that says the same thing as the existing law? And so they would be looking for what this new meaning means, right? And so they would, I think they could be within their, it would be rational to think, okay, to look for what it, so does now the legislature mean like there can be exceptions? There are exceptions to having this be fully transparent and to the public. So I just think it's confusing and it's unnecessarily confusing because this information is already fully available to the public. Well, the cross references to the public records act, so just saying the exemptions and the public records act apply, right? I think. Yeah, I mean, that's what it says on its face. Yes, you know, like I said, I'm reading this as an attorney who's always looking for the, what can some other attorneys do with this? As a layperson, it may just seem fine. To me, it seems, why would you be creating this new section in the law that's simply for something that already exists? That's how a lawyer will look at. They must admit something different than what currently exists. And they will be searching for what that difference is and they will be seizing upon that language if somebody particularly wants to keep something from public view. And I would prefer a statute that keeps nothing from public view. Yeah, I mean, I just don't think we have that statute to begin with. So this is, but anyway, my bigger question for you really was because I appreciated very much your example of the kind of more central repository that was created in, I think, in New Mexico. And I'm here just in that first sentence. Yes, it just seems like it's really directing law enforcement agencies to essentially do what they are already required to do another public records act. What do you think this section of the bill would be improved by charging, whether it's DPS or some other entity with maintaining that central repository? Because I really appreciated your points about just the kind of transparency and that that kind of more aggregate, like easily available. You know, I mean, I was served on a city council at times when we did settlements and judgments and to, I believe, commission our Sterling's point, much of the meat of that takes place in executive session and not all of those documents are, there might be public records that people can petition for, but they're not necessarily readily available to the public and the public would have to know that they need to make that request. And so I was just thinking about the distinction you were talking about between kind of the current state of the law where, yes, it's a public record, but there's not that kind of transparent repository. And wondering if you think this section would be improved by trying to create something like that in Vermont. Well, I generally think when you write laws, you should be able to enforce them and this one you can't because you will never know if people are doing it. And secondly, I think it would be helpful as Tuva Montes to have a central repository of judgments and settlements entered into by public officials when public officials are sued, not just for law enforcement, but all. It'd be great for to have that as a central repository. Yeah, thanks. I mean, Martin and then Bob. Just real quickly, this wasn't going to be my question, but we may want to consider this in the context of S250 if we end up having it here or if gov ops because that's setting up a repository and it could very well be related to the redundancy already between those bills. But that wasn't my question, I just wanted to flag that. Yeah, or I'm just writing a note about it in the report. I don't know if that's appropriate for anybody. Yeah, thank you, sir. So the question I had is back to the clearly established law issue and I appreciated Tucker's answer on that as well. But I'd like you to, if you could just comment on what you would perceive as the pros and cons, if you want, or if you can, on a court actually looking at for decurring clearly established law, looking at policy and training that is occurring. And if you're not prepared to answer because that's kind of out of left field somewhat, but I am trying to really probe and understand the scope of how one should establish clearly established law. Well, I think it begins with, thank you for the question. It's not out of left field. It's, I think it is directly relevant. I think that as the doctrine was created by the US Supreme Court, it arises out of section 1983 litigation basically where you can sue for violations of statutory and constitutional rights. And so I think that's, that kind of marks the contours, right? And so you don't, it doesn't say you can sue for violations of policy or violations of training. The right itself that you can sue for violations of constitutional rights and statutory rights. And so I think you're trying to, your question assumes that people have a right to sue for violations of training and violations of policy, but that's actually not how section 1983 works. But then if I were to expand your question to say, well, should people have the right to sue if an officer acts contrary to the way they were trained or contrary to the way, contrary to a policy? Generally training and policy is based on preserving people's rights, constitutional rights and statutory rights. And so they should be, they should be the same, right? And then maybe another part of your question is asking if an officer were trained to do something that protects a right, should that be considered, should that right? Because it's all about whether the right itself, right? Whether they violated a clearly established right. It doesn't, can the training provide the knowledge that that right was clearly established? I think that would be really difficult in terms of like proving that. I think the problem with the clearly established standard is really because it's so subjective that it's not applied evenly by every court. I don't think it's, the problem is that that it doesn't include training or policy. I think the problem is, is that it varies by region, how it's applied. I don't feel really comfortable with that answer because I don't feel it was organized enough, but I think that. So let me just ask, I mean, let me give you a context and the follow up and that is, you have a statutory right for a constitutional right and then in training and well, policy and then training, you're actually training presumably to certain scenarios. And often from at least in some of the Supreme Court or federal cases, they'll look at what happened. They'll look at the factual situation and they'll say, well, that factual situation hasn't happened before for us to know that a clearly established right was violated in that scenario. But if you look at training, it's possible that folks have been trained to exactly that kind of scenario. So it should be seen as, you know, that the officer that was clear that a reasonable officer who had that training would understand that that scenario and what he or she did violated that right. So that's kind of where my thinking is on this. It's called that. And that's why I said that the problem with the clearly established standards is really depends on who applies it because if you read the second circuit cases, particularly the most recent second circuit cases, they don't say that the case has to be exactly the same facts or it has to mirror it. They, there's a, the most recent place, I think it's Chamberlain versus city of white planes. The court itself says it doesn't have to be the same. It can be a completely novel set of facts for a right to be clearly established. And so I think that's why I think it's the problem is in the application and not so much with the doctrine. But I agree with you that, that, so my, the way I look at it representative alone is that the, you know, the, that it does, I don't think that, I don't think the law really, I don't really think it is the state of the law that it has to be identical facts. I think that's how some courts apply it. The second circuit has said that, that's not how they apply it, that it could be a novel set of facts. But thank you. I know that Norris had a question, but he's, he's not here right now. So we're gonna take a break. Will there, are you able to be with us after the break to answer a representative Norris's question? Yeah, okay. All right, thanks. Yeah. All right. Thank you so much.