 We are back live and we're taking up F-254 and we're at the point of committee discussion, although I will invite comments from those who are in the room. We try to keep everybody appraised of what's going on, who have testified on the bill and so I appreciate all the different sides that have, I'm going to say sides because you know usually say there's one side and another side and you know the two sides you've come to compromise with and this particular bill it seems like there's five or six different sides and we're hearing conflicting information from all of those sides and I want to make clear that the bill we're talking about is not designed to tear down police or anything of that nature. It is designed to have a discussion about qualified immunity and Ben has helped us bring nicely understand the history of qualified immunity. Ben Novigowski our legislative counsel has done a terrific job in working on this bill and the legislature has never actually had a voice in this. It's all been done through common law and rulings by Vermont Supreme Court as well as the United States Supreme Court and I want to make clear it's our job to look into these matters and primarily at the heart of the issue for me is the balance between civil rights and civil policing. This bill is about striking that balance with a uniform policy that applies alike to local county and state police and I've read a lot of criticism of the bill regarding frivolous lawsuits and I just want to make a few comments about that and then we can I'm happy to hear from others but you know that's something as chair of this committee and as a member of this committee I've heard often is frivolous lawsuits and don't worry about it. We're hearing that about the right to farm for example in s268 but there are barriers to friling frivolous lawsuits including attorney sanctions and judges ability to dismiss cases and in general Vermont is not that kind of litigous state with runaway lawsuits and one of the things that was in the bill is introduced was loser pay in other words if there is a lawsuit against a law enforcement officer that least the intent of the sponsors of the bill including myself was that to avoid those frivolous lawsuits the officer would be indemnified for any of the costs of defending him or herself in the lawsuit so I just you know I I'm kind of disappointed that that hasn't even come up in the discussion by many of the opponents of the bill. I saw my town manager forward me a blurb from VLCT and I didn't hear anything about that about that portion of the bill and I maybe it's just because it was overlooked but that was put in there to avoid to try to avoid frivolous lawsuits and if there are and they get to that point you know I've been sued I know what it's like I know what it feels like it doesn't feel good and because of the way it all turned out it cost me $22,000 to defend myself on a lawsuit that took the jury about well I think the amount of time it took them to walk to the jury room and back they couldn't have had more than a half a minute to discuss the bill to discuss this suit and came back and found us to not be at fault. By the way when we're talking about the jury bill that was a jury of eight people so I just needed to get that off my chest and I appreciate that but so Ben can you help us better understand the Zulu case and what it did what it didn't do and sure. Am I pronouncing it correctly is it Zulu? It's the Zulu v. State and yes and for the record Ben Novogrowski from the office of legislative council the Zulu case to really distill it down simply is that for state constitutional torrents as applied to state law enforcement they a standard was created a four-part standard that and and again I'm kind of I guess maybe broadening in a little bit more because it's Zulu is specifically about article 11 the search and seizure provision and the standard came out of this case that to obtain damages and it was really a damages limiting principle that's sort of acted as a form of qualified immunity that to obtain damages in any claim a plaintiff must show that there was a violation of article 11 that there was no meaningful alternative in the context of that particular case and that the law enforcement officer acting under authority of the state or then the scope of authority knew or should have known that the officer was violating clearly established law or that the officer acted in bad faith so that standard is really what came out of the Zulu case but it's unclear as far as its application to local law enforcement to other constitutional violations but there is sort of a conventional wisdom that that it would at least be instruct instructive as applied to other situations and one of the reasons why this why this standard exists I suppose is because Vermont's constitution often offers broader protections than the federal counterpart and so that's why this one of the reasons why this the standard was created and also as was said in previous testimony to try to balance the considerations where to to stave off a wave of lawsuits against law enforcement that could obstruct the performance of their duties so the court felt that this was a damages limiting principle to try and address all of those considerations and but there was a call they said absent legislative action this is what we're this is the standard that we would apply in at least this situation and perhaps similar situations of constitutional violations of the Vermont constitution so there was a call I think for legislative action to degree but until that happens that is the standard in that context of at least article 11 violations and potentially more constitutional violations what are the questions so far about that so you're senator white so if we did nothing this is the standard that would be used from now on in vermont around um article 11 violations for article 11 violations as applied to state police state yeah I could say pretty confidently that this would be the standard that that would be used um however it may not be used in other contexts right right but but in anything under that in article 11 violation this would be the standard used we were just talking about depth sheriffs in the in the um agenda item ahead of this one if a sheriff did it county sheriff would they be covered by zulu I can't say with certainty that they would um I think that zulu would probably be instructive in the case um but there is uncertainty over um different officers because local law enforcement and sheriffs are a little bit different since they're county based but local law enforcement has and this was a discussion that's gone on there's municipal immunity and whether or not that applies to local law enforcement is sort of an inconsistent question throughout the case law um there are many cases where local municipal employees so someone that works for the water department municipal immunity is a completely different test but it would apply to them however there's inconsistency in the case law as applied to law enforcement specifically um many the majority of the cases that come out of vermont are cases involving uh state troopers there are a handful though that involve local law enforcement however it's not clear the tests that they apply in that situation it could be municipal immunity but also there's there's qualified me there are two cases um that i'm aware of bat tv bruno and livingston v town of hardford that involve local law enforcement but it's not a clear application of this the clearly established law standard that we've talked about under 1983 lawsuits um there hasn't been a case really yet about with the zulo standard but there's also discussion about this municipal sort of discretionary proprietary function as well so it's a really long way of saying that it's unclear how it would apply to sheriffs um and the one thing that i think could be a policy decision for the for the committee to consider is that if there is a consistent standard that the committee wants to apply two situations across the board to give certainty uniformity across first aid police sheriffs and local law enforcement so that the the courts don't vary in their interpretations okay uh commissioner senator white and then commissioner serling so i just have one more question for ben on the zulo case i mean i might have more but right now i have one um it only applies to constitutional rights violation of constitutional rights on on art specifically article 11 constitutional specifically article 11 yes thank you uh commissioner thanks for being here thank you senator sorry i also a few minutes late i was on the house side for a bit um for the record mike charlin commissioner of public safety um i i don't want to sound uh or come across as argumentative with uh council but um i've and i've been texting a few folks uh while this has been going on um we're not aware of any instance where controlling case law on a decision involving a law enforcement officer in vermont in any way differs whether that officer is municipal sheriff or state police there's only one definition of a law enforcement officer in the state we train to the same when we train about legal obligations both civil and criminal process they're identical my experience with civil litigation now both in on the municipal side and on the state side is that um we when we're considering cases that are brought against law enforcement agencies that all of the uh decisions are controlling that in vermont so zulo in took by extension would be controlling two municipal agencies as well um important to note i am not an attorney but i would certainly urge you to get additional um legal opinions on this because i am quite confident that uh zulo applies across the board as do other decisions um related to both civil liability and criminal procedure senator white so i just want to ask ben one more question and i will always have one more question probably i am so sorry but well i thought your question was for commissioner shirling so i'm going to say sorry i'm sorry i'm sorry thank you commissioner um i i think that um so i'm curious as to why we're phrasing this in uh eliminating qualified immunity instead of putting it in the context and maybe i don't understand the way the law the laws are written but that in order to obtain damages which is what we're looking at we're looking at the rights of people to to have to get damages if they've been damaged by a law enforcement officer and that that i think is the what we're looking at here so why aren't we putting those four standards under some piece of legislation that says in order to um get damages from uh an action of a law enforcement officer you need to meet these stand for standards why are we i mean is it the same outcome or um why why have we phrased it um getting rid of qualified immunity as opposed to these are the standards you need to meet in order to file a lawsuit and get damages well senator white that's that's i think a policy consideration for for the committee and you know on the one hand what qualified immunity does is stop a lawsuit really at its outset so you a lot oftentimes you don't even get to the merits of the case and even the question of damages i think the route that you're suggesting uh could potentially change that that um that equation where it is possible that the committee could create a law that would permit the lawsuit to go forward and then when it comes to the remedy as opposed to just having access to the court system um the remedy is sort of what the the policy choice would be if it's damage access to damages or or something else i think that is a policy consideration but right now qualified immunity oftentimes acts as really an obstacle to really access the court system to a degree okay that's helpful thank you thank you yeah yeah that um i wonder if um jds wants to comment because j um it was actually one of the litigators in the zulo case on the issue that i'm really stumbling about commissioner shirling raised it is zulo specifically to the state police or could it encompass all all more enforcement in the state thank you senator for the record jds general counsel of aclu vermont uh yes i i was part of the team that litigated the case zulo v state and as ben said i think i would agree with ben uh that the case specifically applies to state police and state employees really and that's because it was a case against the state itself uh and so while article 11 and the rulings in zulo around article 11 specifically yes those apply across the board so those are like certain seizure that's certain seizure law the law around damages and um and and this limiting principle that ben talked about this qualified immunity like test that we've talked about that is specific to the state now it could in future cases be ruled to apply to municipal officers in some fashion or or sheriffs but that remains to be seen we haven't had a case on point in that regard so i think you know that that's what i think what ben was trying to get at and and that's uh what that's how i read the case and the case is limited to redress for significant violations that's constitutionally based violations is that correct correct yes and the court said absolute legislation providing a meaningful remedy for constitutional tort violations that well i should read the full statement that the legislature may provide and limit a statutory remedy for constitutionally based tort violations as long as the remedy provides meaningful redress for significant violations meaningful redress absent legislation providing a meaningful remedy for constitutional tort violations in determining the scope and limit for sovereign immunity we conclude that the judge made doctrine does not superside the right of the people to seek redress the mistake for violations of fundamental constitutional rights yes so there the court is saying that the state through its statutes can't waive immunity can't waive sovereign immunity or can't apply sovereign immunity i'm sorry and it has to give some form meaningful redress when constitutional rights are violated because there's no legislation providing any standard the court basically is setting the floor here thank you that that does help me a little bit i don't know if it helps others what the significant mean by the way i don't know that the word significant there has any what's the significant violation i think yeah i think i think that's where i think the court is maybe drawing a floor but is saying but it didn't elaborate on that fact i think if you look at what happened in zulo you see a young person a young black man who was you know just driving his car was pulled over without justification his car was pulled out of the car that his car towed and seized had searched all without justification those things those are the types of things i would consider significant violations of constitutional rights okay senator white thank you jay thanks jay but it only applies to significant violations of article 11 right so yes zulo is specific to and those limiting principles we talked about the limiting principle we talked about is specific to article 11 violation is not the same test for other violations of state constitutional rights thank you other questions for jay or for anyone who's in the room anyone in the room who wants to comment on this discussion happy to hear from you brad you're muted hear me yeah now we can okay uh i just want to go back to your uh concerns about frivolous lawsuits issues that have been raised around that um as i said last time could you identify yourself i'm sorry bradley mierson um i am retired but still licensed attorney pollock i've testified and and reinforced this in letters uh to the committee that um the concern about frivolous lawsuits is a non-issue based upon the statute having as you identified senator sears um a loser pays provision but also concerns about frivolous lawsuits ignore the fact that a remote simply does not have that type of litigation climate and sub b uh the plane of saturn and i can say this from my own long experience performs a screening function in terms of whether it is worth the risk on a contingent fee basis to handle such a claim and take it to trial uh knowing that among other things he or she will have to spend a lot of money out of their own pocket for experts and to prepare the case and also because um of facing the prospect of loser pays so i i don't think that the fear of a wave of frivolous lawsuits is a genuine concern it should not be an obstacle to passage of the bill yeah they usually i was watching channel 13 news this morning and saw somebody in new york was sued the guy who runs a store was sued for requiring the guy to have a mask on during the mask mandate in new york and he was sued for quarter of a million dollars by somebody who who didn't want to put a mask on and said he was practicing medicine without a degree that was the basis of a lawsuit so of course that grabs headlines and you know like i said most people are afraid of lawsuits they don't want them they don't want to have to you know i'm sure the guy that runs the grocery store doesn't want to defend himself against that type of lawsuit um anyhow that's what i get for watching tv anybody else who wants to comment welcome um can i give back to mr chair yes caron horn yeah yeah thank you um the one comment that i would have is that is in response sort of to to the um comment that um frivolous lawsuits don't happen in vermont but you are changing the landscape here and so what has been the case in the past may not actually be the case in the future i just want to um read that out to the committee on page two wine 16 and this is where i got into a kind of a district my internet's unstable so i hope i don't lose you but i've been emailing back and forth with stew heard the town manager bennington who forwarded a copy of your um article regarding the s 260 s 254 and his comments back and forth was if the sponsors only want litigation that's all you're getting out of this is more litigation and after reading you know what he forwarded me i i was merely pointing out that on line 16 it says a court may award reasonable attorneys fees and other litigation costs reasonably incurred in any action brought onto this section in which the plaintiffs substantially prevailed when a judgment is entered in favor of a defendant a court may award reasonable attorney fees and other litigation costs reasonably incurred to the defendant for defending any claims the court finds frivolous so i i that language wasn't recognized in the article that you said that's all i was referencing and student pick up on that language so i was pointing out that the language is in the bill as introduced okay and then it we do know it's in there yeah well um and then it further says on line 10 of page three notwithstanding any provision of this section to the contrary to the extent that a law enforcement officer officer's portion of the judgment or settlement is uncollectible from a law enforcement officer law enforcement agents the law enforcement agencies insurance will satisfy any such uncollected amount of the judgment or settlement i'm just pointing out what's in the bill thank you we can agree to disagree about frivolous lawsuits i appreciate the perspective thank you you're welcome ben or anybody else in the room who would like to comment at this point right i don't know that we're making much progress but if you were to draft something that um was based on the zulu case to make clear that you know there seems to be a disagreement whether it covers municipal and other employees and we would have draft something that codifies zulu or constitutional violations people's rights and it included the language that i just read and in on page two regarding the frivolous lawsuits does that do i mean do you need more direction from us to try to do something like that well i think um i could draft something that would codify the zulu standard and then as far as the you know and that would be something that would be a burn that the plaintiff would have to prove and really would be one that would speak to whether damages what was what was appropriate in the case and it would really involve those three prongs outlined in the zulu case and i think you know for it to apply more informally if that's the choice of the committee to make it apply to all law enforcement officers in the state and then it would it would discuss or i think that the the standard would be that you know a lot it would be a violation of the rights privileges or immunities guaranteed by the constitution of the state of vermont rather than just limiting it limiting it to article 11 or or another similar article that there would be no other meaningful alternative in the context of the case and that the law enforcement officer either knew that the officer was violating clearly established law or that the officer acted in bad faith i think that can be drafted in such a way that it would be a standard applied uniformly and then as far as the the frivolous lawsuit concern i mean if there are suggestions as far as to i think further deter frivolous lawsuits that's something that can be worked in as well it just depends sort of what what the choices are on what's appropriate to incorporate there are other states do incorporate some language that's a little bit more aggressive isn't the right word but maybe more of a deterrent of frivolous lawsuits so for instance in Connecticut i believe that they used a language that if the lawsuit was involved willful conduct or reckless conduct and excuse me i'm not quoting it directly so there might be some deviation in what i'm saying right now um but that can be added to the provision that we already have um so it could read something along the lines of um that you know a court may award reasonable attorneys fees and other litigation costs reasonably occurred um under this chapter in which the plaintiff substantially prevailed or um if the defendant acted in bad faith um or if the court finds that uh there was bad faith when a judgment is entered in favor of defendant a court may award reasonable attorneys fees other litigation costs for any claims the court finds frivolous um and we could add additional language to that um to act as to give the court more discretion to make findings that the the court or that the case was brought in frivolous way maybe that the the the case was brought with mal intent or um or somehow was trying to deter police officers otherwise lawful conduct something along those lines but i think that really comes down to the committee's choices as to um what they want what it wants to do as far as um incorporating more deterrent language was was that part of kinetic it's qualified immunity law or is it part of just state law no it's part of their their recent qualified immunity law that was passed and i apologize for not having the exact that's fine that that's fine when i i'm this is more like committee discussion and getting somewhere to so i that's fine i just um i i think they're personally i i i i'm comfortable with having something of that nature in there either you know maybe you could draft something up based on kinetic it and then we have the choice of what's in the bill currently okay and actually i do have the language now with uh if you if you want to if you don't mind indulging me no no go ahead so they're the language in the kinetic it uh bill was that in any civil action brought um under this section if the court finds that a violation of the section was deliberate willful or committed with reckless indifference the plaintiff may be awarded costs in a reasonable attorneys fees but that was they don't have it on the flip side that the defendant may but my point is that there could be language of a similar nature that could be applied to either a plaintiff or defendant um to award them attorneys fees well i i think it's important to have something in there for the defendant under white so ben i'm not sure i completely understood that because currently there is something in there that if the case is one or lost that the defendant and the plaintiff will have to pay each other but you're saying that if it doesn't even get to that point but is considered a frivolous lawsuit to begin with and never gets to that point that the that there could be uh that reimbursement right i mean the court would have to make that fine yeah yeah so there would be litigation to a degree um it's it's not a total prevention um but what we could do is work in language to give the court more discretion to award the defendant fees other than just for frivolous cases um it could be one like i said brought with mal intent or maybe in retribution for otherwise lawful conduct something of that nature um but but again it doesn't prevent the lawsuit at the outset it would still require finding by the court after the lawsuit was commenced okay i got it thank you i if i just can comment here that ben is a saint putting up with my questions oh my god no well he's terrific but i don't know if we'd want to give him sainthood yet i appreciate that but i'm i'm fallible trust me um do you have an oh oh is there a way to incorporate some kind of report to better understand the number of cases the number of you know it seems to be a great deal of confusion at least from my perspective about you know the number of cases that come up in brahman this doesn't at all affect the federal cases correct i mean somebody we don't have any control over that right this would just be for violations of the state constitution um you know there would still be the avenues for a section 1983 claim in federal court which can also be brought in state court but only for violations of the federal uh federal constitutional rights but yes this would be exclusive to state constitutional violations and i think what you're suggesting senator sears is is another provision that's similar to what was in new mexico's statue um they do have a report that would be published um about the number of cases that have been filed and things like that so i think that's something that could be worked into to an amendment as well yeah that's what i had in mind something like in mexico um unfortunately senator baruth is not here so it's hard to get a feeling of the committee at today i i feel like this is more just trying to get us going somewhere and i redrafted the bill after listening to as i said all six sides of the issue or seven whatever it is um i mean are are there are the things people would like to see or not see in a bill or maybe some of you don't want to even have a bill in the uh senator my sure yeah i'm like on your last point um i will uh i will take that position and simply say um you know it is our experience that there are avenues plenty of avenues to uh to litigate law enforcement um also of importance i don't know if this point has even been made um when when law enforcement um does find itself in a position where someone's rights have been violated or someone has been wronged or injured in a way um where compensation is appropriate there is rarely uh if ever a hesitation uh to make that right um and my final point uh going back to the very beginning of my testimony uh we should be investing in better outcomes not working on more ways to create litigation uh i continue to fear the cascading impacts of um a variety of different things including our policy decisions on our ability to recruit and retain and ultimately deliver uh public safety services in vermont and passing anything of this nature which is going to create additional litigation is going to damage our ability to operate thank you so i'll just pick up from the commissioner's statement i met the commissioner when he came before our human rights commission and he was still chief of police um i have to concur with him that there are many avenues for people to get relief here i remain frustrated that this conversation um has arisen at a time when the the frustration being expressed is really concentrated on the national level and not the state level um i've pontificated on this subject last time i don't mean to belabor the point but senator sears you asked the question of whether you just don't want to bill at all and that is my position still okay senator white well i continue to to um look at this because i i do think that people need to have the um people who are damaged need to have the ability to recoup those damages i don't know if if what we currently have is sufficient i don't know that this is the right approach but i will say one thing people um in testimony one of the things that we hear constantly is that this would improve police accountability and i don't believe for a second but that is true i think that that we are working on many many avenues to improve police accountability we have um we've been working on it for years we changed the uh criminal justice council the criminal justice council is now operating in a and really different and very um professional manner the two chairs of it are um mark anderson and susana davis they are working really hard to um make police accountable there's a professional regulations uh subcommittee that's working really working and and it's taking them a little bit of time more time than we had hoped because of covet because they can't meet in person and so they're doing everything on zoom so it is taking longer but they are working really hard and we have other um other bills before us that would address police accountability and we have been working on that so whether this is the right way to give people access to damages that they incur i do not believe that it is the way to improve police accountability there are many many many other things the training we worked on establishing the three levels i mean we've been doing this for years so this is not something something new and um i i do take offense when people say that the um law enforcement in vermont has not been willing to work on changes and not been willing to to um engage in these conversations so i just i just needed to put that out there that no matter where i land i do not believe this improves accountability and i do not believe that law enforcement in vermont has been um uh negligent in coming or um uncooperative in trying to um improve what was already probably a better culture than in most other states so thank you well i do think there is strong support for law enforcement in vermont i don't think we are like some other states where we don't see it but we have pockets where um and groups that feel marginalized um and we heard from many of those folks early on in testimony um and so i if this bill doesn't pass it's not the end of the world and we have raised an issue that i think deserve to be discussed after 55 years of not having a legislative committee look at qualified immunity um which was um invented by the courts not by legislation um i was an interesting email from mark q's and unfortunately he can't be here with us this morning about the history of qualified immunity and what it originally was designed for i i don't know if you all got that email but Peggy if you want to send it out or post it it's i think it's fine um it's interesting the history of qualified immunity so it it was you know done by the courts and not by the legislature and i think that's one of the reasons that i um have moved forward with this bill um i my respects and admiration for 99 percent of the law enforcement officers if not 99.9 percent there's not changed at all i have the greatest respect for them and my respect for um and we in in our earlier discussion about sheriffs i you know have a great deal of respect for them um and trying to work with them on courthouse security it's not about me trying to tear down police but rather trying to make sure that we do the best we can um but where it ends um you shall see any other comments from anyone you senator benning yeah yeah i read mark used his email and it's one of the frustrating parts of all this he's addressing the national judiciary um and section 1983 specifically um and i have to say again this has no impact on the national level whatsoever including 1983 actions but i think that's the driving force of many of the folks who are interested in this legislation because there are problems on the national level and surely that needs to be addressed by the united states supreme court but in vermont we have one of the most progressive supreme courts in the nation and i have every reason to believe they would not stand in the way of providing someone with a remedy who deserves a remedy and i'm a little concerned that we've intermingled the conversation with the national frustration uh being used as a force to drive something to change in vermont which i have yet to be convinced needs to be changed okay but if i look at what i heard about zulu that was certainly a case that happened in vermont that the supreme court has found to be wrong and to write that they have made law case law and what what i've also heard is that may or may not apply to local police municipal police and other law enforcement officers in the state and where i'm headed right now is looking at how to make sure that that applies to everyone and if zulu is the standard in vermont then why wouldn't it be the standard for all law enforcement in vermont personally if i'm being asked to respond to that i think it is and wouldn't the supreme court would not hesitate to apply it but zulu one of the other issues with it is it's a fact specific case they had a state police question in front of them i think if a municipal question came up whether a the local law enforcement officer was the subject of the discussion they wouldn't hesitate to extend that to that law enforcement officer and i'm worried that in this time period that we're living in the other consequences that may result even if there aren't frivolous lawsuits and i by the way i don't believe there will be an avalanche of frivolous lawsuits but i agree completely with karen horn that we are changing the landscape and when you change the landscape the recruitment efforts of the state police and other law enforcement is impacted to what extent i don't know that we know but i have to believe if you are coming into that profession from the ground floor uh you have to think twice about what your legal responsibilities are and they have to train to that i should also shout out that when i was on government operations um there was a lot of effort in trying to redesign police training programs to make sure they were cognizant of the issues that we're now discussing as the foundation of this particular legislation and i don't know that they've had enough time to have those things work but i do know that they have been bending over backwards to participate in those conversations and when i was on government operations i was very impressed that they were willing to to sit down at the table and try to do what they could to make amends for whatever reasons amends were needed but i hesitate to try to use this legislation out of frustration of what's going on at the national level when in the reality we this legislation has nothing to do with what's going on at the national level. Could i just add a comment about the um application to other to other law enforcement officers i and i think what ben was saying was that he he really can't speak for the court he's our attorney and he can't speak for the court and say that it definitely would apply because this was a case a fact specific case it applied to the vermont state police it did not apply but he i don't think he was saying that it wouldn't apply that he was saying he couldn't speak for the courts but i think that mic the commissioner and joe are right that it would it would apply but i don't think that ben was saying it wouldn't apply sorry to speak for you ben well what ben speak for himself thank you senator sewers and yeah thank you senator white um and yeah and to clarify that point it senator why you pretty much captured it for me is that you know i'm not saying that it won't apply it's just that there isn't it hasn't been a case that definitively says that and i just feel that my role um is to try to capture that you know as objectively as possible and i think and given how litigators operate it's possible that you if there is another case there could be an argument that it doesn't apply given the circumstances but it also could the my my point is just that it is not definitive given the outcome of the zulo case given the specific facts of that case um so you know maybe i'm being overly cautious but i i feel like that's also um you know what what the aim is in my role well not being a lawyer throughout the zulo there's like five or six times when the court says things like absent implement implementing legislation when the legislature is not created an alternative civil remedy in the absence of any applicable legislation addressing constitutional torts we are cognizant of our need to be cautious when judic when judiciary recognizing potential damaged liability to both be imposed on another branch of government retaining limited immunity prevents judicial branch from intruding pun functions of the legislative and executive branches through adjudication of tort suits if the supreme court wasn't inviting the legislature to act i don't know how many more times they could say it um and so uh that's kind of where i'm at right now and if if we don't if we decide not to it's not going to be the end of the world we we killed about four bills here this year um much to this may have many of the supporters of the bills and you know if we do that here we do it i that's not going to be the end of the day for me um you know and we all know several of the i'm sure that people who wanted to see a no-knocks warrants bill are disappointed in our action not to pursue it but that's the decision we made as a committee and if we make the decision to not pursue this any further so be it we've spent a lot of time on it but that's where it is i would just like to respond senator sears quickly by saying you may not be a lawyer sir but you know a lot more about the law and how the laws dovetail with each other than a lot of lawyers that i do know well thank you senator wherever that's worth thank you senator nick so um as i had said previously um you know i feel we've done through the years that we've been on this that i've been on this committee um we've done a lot of work to improve policing um it was some of it was very difficult to get to where we did get but starting i think back in 2017 i mean i haven't made some notes here act 56 was enacted which established new provisions for the professional regulation of law enforcement officer and 2020 we passed act 147 defining prohibited restraints um act 165 established a use of force standard act 166 addressed the collection of roadside roadside stop data and use of body cameras um let's see so anyway just looking at some of those there was a there's been an expanded and restructuring of the criminal justice council that reports requires law enforcement agencies to report credible complaints of professional misconduct to the council that you know there's all these things that we have been writing on and in jeanette's committee now there's another um not sure what that is another bill with regard to or process whereby they're um going to more register i don't know if it's registration whatever it is jeanette can speak to it of police officers so that you know more you know more quality more training all kinds of things going on and i think that we're moving farther ahead and and in doing good job and getting vermont where we hope it should be and and is in many cases now i think i'm glad the um that jay was able to prevail in the zulo case i remember that case well it wasn't too far from me and you know i'm glad that happened so but i mean we're doing a lot of things to move police forward to kind of new era policing so i think i'm not sure i want to go in this direction at this point i appreciate that very much um so is there anything i mean obviously i've asked ben to do a redraft that we can look at either tomorrow or next or a week after town meeting that and uh do you need any more direction from us then or me actually i guess i'm the one requesting it may be a one to revote here um just a little clarification just so i'm i'm clear and so what i've heard for the the additions is the taking an attempt to codify the zulo standard as as applied to constitutional violations right everything else pain as it is today this is my intent um that all the other you know like stop signs that i mean you can't pat you can't go down this road you know somebody gets sued because of something happened that wouldn't be a constitutional violation i don't think right yeah it would just be the the rights uh immunities and privileges guaranteed under the the constitution of the state of ramon yeah so that's the only area well it's a major area but that's what would the bill would focus on yes this is violation of constitutional rights okay um and then the other thing is uh working on the frivolous lawsuit language to strengthen that a little bit um another another thing outside of just that provision that may also serve as a deterrent of frivolous lawsuits is something that new mexico also did is the filing a notice of claim ahead of a lawsuit um this is a concept where someone would have a certain amount of time in new mexico i believe it's within a year of the incident occurring the file notice of claim basically putting the agency on notice of who was the alleged victim the circumstances surrounding it the damages um and and serving that within that time period and it's a conditioned precedent to filing a suit so if it doesn't happen um the suit wouldn't couldn't be filed this is also something that many states including new york does uh for claims against uh you know municipal government and things like that so that could be another work in well i'd love to look at that there may be sections that more than um that the majority of the committee supports and sections that the majority doesn't support so let's see where what that looks like that would be helpful okay um and then working in a report of claims filed um an annual report to see really what's going on um and for fear of opening up more cams and worms my my running tally of issues that have been raised um are caps on liability um whether or not we want to the i'd take out section on page three section e okay take that out yep that's the the would not affect an individual officer in terms of personal liability i think we heard a lot of testimony about that particular section not being um that it would would would create um in terms of the test in terms of what senator benning and and commissioner shirling talked about okay so no personal liability for the law enforcement officer could um with that would could claims still be brought against the law enforcement officer or is well i guess they i guess they i guess they can because you know we've got those claims and i wasn't i didn't want to ask david slay about ongoing litigation but he's defending a police officer on five million dollar claim so because yeah a way that it could be worked in is you could bring the lawsuit against the agency the law enforcement officer or both but ultimately the the agency would be would fully indemnify law i don't want to change what that i mean if they can do it already so i'm just not adding that 25 thousand dollar or five percent whichever is less suggesting we don't add that to the bill so but evidently um currently individual officers are being sued right um and one thing though is that we we could make it explicit that the right of action can be brought against um it given this statutory construct let's let's it's already confusing enough and i'd rather leave that to the the way it is today okay um if some future judiciary committee wants to look at that issue then they're welcome to it well like i said i was afraid of opening another canon warren's on that well that's it that's that seems to be a can that we opened i'd like to close right now um in terms of of the bill that we would consider okay um and then i know that there was talk about prohibiting or concern rather uh of insurance carriers potentially bringing claims um in the vermont tort claims act there there's a similar there's a prohibition that's explicit about insurance care is not coming after law enforcement officers for reimbursement essentially that could be something that could be rolled in as well if if the committee desires i don't know what i'm i'm not clear i you can throw it in there and that's something that might get thrown out i'm not i i don't fully understand that okay okay can you explain that a little bit better so i i believe in in one of our early testimonies um it was a concern was raised that in the lawsuit if insurance carriers could um after let's say payout was made could then come after a law enforcement officer to reclaim any insurance payments if they had say a private insurance contract or a situation like that in the vermont tort claims act they have a prohibition of that it says that basically insurance carriers cannot come after law enforcement officers for reimbursement um under any private insurance contract that the the officer may have um or an individual you mean an individual officer not the department correct correct um you know and i guess with the answer before that if they're not going to be personally liable it may not be necessary to actually incorporate that provision yeah i i don't know if it is or not but my understanding is and i don't know for sure but there's been at least three settlements in recent history in bennington between the town and litigants um um and i'm assuming that that the vlct insurance pays that i think that we had testimony on that yes i believe that there was testimony on that and and again as i think through this and understand that we don't want the personal liability of the police officer i think the need for a provision uh prohibiting an insurance carrier from going after a law enforcement officer is probably not relevant at this point i don't think it is although going back to my $22,000 payment um for my defense um i wish they had that there okay um all right so that that uh rounds out sort of my checklist of just concerns to make sure of what's in and what's out of the the new draft so there'll be the codification of zulo for constitutional violations strengthening the frivolous lawsuit language uh a notice of claim and a um report of claims filed something like new mexico okay someday i'm going to get to new mexico it's one of the few states i've never visited all right any other comments or questions before we adjourn for the day just a comment on new mexico yeah we if you'd like yes when um we were setting up the uh the um medical marijuana dispensaries um are the legislature along the bill you mean right bill yeah yeah the the legislature along with the um department of public safety did such a good job that when new mexico was setting theirs up my understanding is that they came to us and asked how to do it oh well having said all that jenette senator baruth is landing in albuquerque right about as we speak well let him investigate new mexico yeah well you've got the right day to leave not tomorrow all right anything else