 You did a terrific job drafting an amendment to draft 2.1 of qualified immunity based on the Zulu case. Yes, there's been a roster for the office of legislative council. Would you like to show my screen so we could walk through it together or. We could walk through it briefly. Thank you. Would you rather have them share the screen. Everybody see my screen. Yep. Yeah. So, draft 2.1 of the strike all amendment as 254. Is what's before you now. Section one. The whole, the whole bill has changed quite dramatically. In section one is still an addition of chapter 190, which would create a private right of action against law enforcement officers. So, this is a new section 5607, which outlines the legislative intent of the law. And now reads that it's the intent of the general assembly to eliminate common law defense, qualified immunity available to law enforcement, law enforcement officers in the state of Vermont and replace it by codifying the damages limiting principle espoused in Zulu state. 2019 BT one as a burden that the plaintiffs must prove to the law enforcement officers. Moving on to new section. 5608. This is the section of the bill that locked liability of law enforcement officers limitations creates the private right of action. Section a remains unchanged. Section B now reads. I will change this from before where it just limits the private right of action to violations of. Constitution and the individual's rights for religious or immunities guaranteed under the Constitution. Subsection C now discusses how to obtain damages. So this is the burden that the plaintiff would have to prove rather than just eliminating the defense altogether. It's really shifted it to the plaintiff to prove by preponderance of the evidence to obtain damages that the law enforcement officer acting under authority of the state or within the scope of authority, the law enforcement agency committed a violation of subsection B, which would mean a violation of the Constitution. Two, that there is no meaningful alternative in context in the particular case. And three, that the law enforcement officer acting under authority of the state or within the scope of authority of the law enforcement agency knew or should have known that the law enforcement officer acted in bad faith. This is almost a word for word resuscitation of the standard that was outlined in this low case. And therefore is now incorporated as a burden that the plaintiff would not have to prove. Can I ask a question about that? No. So, Ben, in the beginning it said the violation of a constitutional right. And here it says clearly established law. Well, the clearly established law standard is part of that is what came out of the Zulu case. So it would be, it would still require that same analysis that we've discussed in the taking testimony on about sort of this case that would already exist out there that would now have to apply in the exact situation before the court. But what it does is that it also provides the alternative of if the officer acted in bad faith. So it would have to be a violation that basically had been adjudicated before or finding that the officer acted in bad faith in that case. My concern was that it says clearly established law. And when we had the original bill, it applied to all constitutional statutory and common law violations. And so this just said. In this case, it just applies to constitutional violations. Okay. And that using the word law there doesn't make it confusing to anybody except me. Well, just for clarity, in subdivision one here, it references a violation of subsection B, which is the constitutional violation. So, I believe that gives enough hopeful clarity to, to that it was a constitutional violation as opposed to a statutory or common law right violation. Okay. All right. Can I just ask a question? So Zulu right now is where this language has been taken from. Zulu right now is the status of the law. If we don't pass this Zulu remains the status of the law. Right. To it depends right. And the status of the law for Zulu and I know that this has been a point of testimony as well in the past is. That analysis was really limited in that specific case to state truber. Now it could be applied in other circumstances. There's just, I just couldn't say definitively that it would apply to state trubers or local law enforcement. But as applied to state troopers, this would be the standard that would apply. The Zulu standard would be. It's not limited to state troopers now. If we pass this. Well, I specifically expands the reach. Correct. This would be for all law enforcement officers. I apologize. I'm sorry. So if I can I ask another question, Senator Sears? Sure. So in addition to expanding it to all law enforcement officers, which we've heard would probably. Apply anyway, but couldn't. Guarantee it absolutely. But just because of the way. I'm sorry. I also expands it beyond just chapter. An article 14, I mean, 11. Yes, it would be all constitutional violations. Okay. Okay. We move forward. Senator Sears. Yep. Sorry, I was muted. Ben, I'm just wondering. Lines 18 and 19. The law enforcement officer acting under authority of the state or within the scope of authority of a law enforcement agency. New or should have known. That the officer, that's the same officer. Was violating clearly established law or the officer acted in bad faith. I'm confused by the. The actual grammar there. Does it mean that the officer was violating clearly established law or was acting in bad faith. Yes, that the law enforcement officer themselves knew they were violating clearly established law or the officer acted in that case. I think that's what you're asking. So. Right. So I would suggest that. We. We mirror the. The verb tense that you have previously in the sentence. That it would say the officer was violating clearly established law or was acting in bad faith. Because otherwise you've got one in kind of a past progressive tense and the other in past tense. And it sounds very much as though you're talking about two different. Timeframes. Okay. If there are no other questions, I'm happy to move on to section. So section D. So subsection D one outlines that qualified immunity shall not be a defense to suit your liability available to one person officer in any action brought pursuant to the state. It says it just can't be used as a defense to avoid liability or to prevent or preventing to bring a lawsuit at all. So section D. So section D. There's a clarification in subdivision to the prohibition on the use of the defense of qualified immunity shall not aggregate judicial or legislative immunity in any way. And shall not aggregate in statutory or common law. You're not subject to this chapter. The intent of this subdivision is to clarify that a lot of the other immunities that we had discussed in the past would not be affected by this. So section D. The defense of qualified immunity in cases against law enforcement officers. And only under this chapter. So section E. Outlines limitation on damages. So in any action for damages brought pursuant to this chapter, the maximum liability of a law enforcement officer shall be $500,000 and one individual. The maximum aggregate liability shall be $2 million to all individuals arising out of each occurrence. That it could be a $500,000 maximum amount that a law enforcement officer would be able to pay for any one person, but there are multiple people in the lawsuit. The most that the liability would be for is for 2 million. And can you remind me again. Where that that this is the. The same standard that's used. Where this is also outlined in the Vermont court claims act. And those are brought for negligence actions against the state itself. And that would be in 12 us a chapter one, 89. Okay. Thank you. Ben. In the earlier draft. It. It talked about the. Law enforcement agency. And then the fine, the officer. So. This language doesn't seem to me to specifically. Reference the law enforcement agency. Is, is this now. Truly. A liability of the individual law enforcement officer, or are we talking about a de facto. State of affairs where the agency would pick up the tab. Later on in the bill, there's the. Indemnification of the law enforcement officer. This was sort of done. As a kind of. Spenders where there could be a. Judgment against the law enforcement officer. You know, saying that they'd have to pay a certain sum of money. Later on in the bill. I'll get to it. It does outline. Full identification by law enforcement officer. Or law enforcement agency. And those indemnification. Amounts near the liability caps that we're looking at. Subsection. If I could just. Mr. Chair. So I, I. I remember that we had a lot of testimony and a lot of. Aggressive pushback against. The amount in the original bill that was. Supposed to be picked up by law enforcement agency. And those indemnification amounts near the liability. The amount in the original bill. That was supposed to be picked up by the individual officer. And that was a token amount. As I remember. Like. 25 or $50,000. This increases that 10 times. Am I. Senator White. Am I remembering that wrong? No, I think, but I think that if you have to read this in conjunction with the. Section further on that says that they, there is a complete indemnification. Of the, so it is the law enforcement officer that is. Is. Being sued, but it's the. Agency that will pay. I believe. The way. Does that mean then that half a million dollars is the most. That any agency can be made. For one incident. Yes. Cause I'm the same as. And isn't that because that's the same as for. Claims against the state for in other. Other. Claims against the state for in other. Other. Actions. That's where the language was derived from and in. Section 5610, which I'll get to in a few minutes. That outlines that even though the officer can have a judgment levied against. Him or her. For these amounts. The law enforcement agency. The law enforcement agency. The law enforcement agency. Ultimately is fully identified by the law enforcement. Agency under 5610. So, yeah, Senator White said you have to read them in conjunction and. Intent of the drafting here was to. Make it so that the action can be brought against the law enforcement officer. The judgment can be. Made against the law enforcement officer, but the payment comes from a law enforcement agency. So. No. The only part of Zulu that's really within this is. The standard that we went through previously, those, those three points. So if we, if we just wanted to make sure. You said those questions. I'm not trying to. Get us somewhere we don't want to be, but. You said. There's questions. Your response to Senator Benning's question. Was that there's some question about whether. Zulu a prize to a law enforcement officer. Who works for a municipal police department or sheriff's deputy or something of that nature. And so if we wanted to just make sure that Zulu. Applies to all law enforcement. Officers. And leave it at that at this point in time. And leave all the other. Issues aside. And try to figure out what to do with them. Would we just stop at the end of page two. Yeah. I mean, I think that I think what it would do is that we'd really end at the. In the middle of page three. Right after online six. And then we'll move on to. Just if we want to maintain the other immunities. But yes, it could be written that way so that this is the standard applied and then leave the rest of the course. Just curious. Thank you. So if there are no more questions, I'll move on to. Now it's subsection F. This just reads that the remedy provided this chapter, and it's not an exclusive remedy. So if there was a negligence claim, you wanted to bring against the state under the Vermont court claims act. You could still do that. And really what it does is that it gives multiple avenues of address to the. To the plaintiff. However. You know, they're, if they were successful, and any other in any one of those other actions. And they had already been commented in one that may be a factor that the court takes into account. So it's not like they can, you know, double dip or things like that. But, but this is just to say that you have other options as well. And this doesn't foreclose. Options. If you choose. This, this right of action. So this would mean out of the same instance, someone else would have options to bring another lawsuit. It could go beyond the 500,000 and not be. And the person not be taken care of by the agency. Is that correct? The same, same incident. Incident, but they could. You know, it would have to be. Under the facts of those are of that law of those other laws. So, you know, commonly, you know, what you could do is in a single lawsuit. Sue based on under this law, Sue under the Vermont or claims act. You can do that all at once. Oftentimes. You kind of have one shot to do it. But, but what it is that you can have multiple bases, bases of recovery. So. So, in fact, the option 500,000. Might not be the only thing that the officer would have brought against them in terms of money playing. But I didn't understand. That I thought that it meant that. Somebody could do that. But I didn't understand. That I thought that it meant that somebody could bring a suit against the law enforcement officer. And also against the. Commander and also against the. Agency. But that. The court. If they were awarded 500,000 for one. The court would take that into consideration and. Is there still a maximum of $500,000? I mean, they could, could they sue for $500,000 to the. Law enforcement agency, the law enforcement officer, the supervisor and the town select board. So. Not under just this statue, I mean that this, this provides the remedy to go after the law enforcement officer directly. There was some sort of negligence claim as well. And let's say it was a state trooper that was involved. That could be an action that could be brought against the state itself. For recovery under the Vermont or claims act. So, you know, you, this is the sort of saying, and I think this answers your questions that you can have multiple defendants. You can get recovery however you can. So, yeah, potentially against the state against the trooper. Yeah, you can sue the law enforcement agency itself as well. And those would all play out. This just limits the recovery against the law enforcement officer. And the other statutes or actions that are sued under would govern the other forms for recovery against the other forms for recovery against the law enforcement officer. So, yeah. I don't know if individuals or agencies or whoever. Thanks. Are you finished yet? Can I clarify that further? So I thought perhaps you could give us an example because I'm not sure. First I thought, okay, this is the cap on what the law enforcement officer. The amount that could be brought against him or her. But then you're, then I thought you said, this is a very important issue. Particular issue. What is another example of whereby this this officer in particular might have to pay more. And I agree his agency might be paying it for what. What else could he? Also, I should clarify individually. There wouldn't be another avenue for this officer. Pay more. It would be, so for instance, again, this would be a constitutional violation. situation and someone sued the law enforcement officer because of excessive force. I know that was a violation of the Constitution. That claim would be limited by this bill, the $500,000 or $2 million cap. But let's say there was also a negligence claim saying that the officer acted negligently in some way during that interaction. The plaintiff could also bring a lawsuit under the Vermont Court Claims Act against the state itself and then could recover under that statute. So there are other avenues for redress, but this one is just limited to the police officer for constitutional violations and would cap though any recovery over though that violation at $500,000. So say there was also a case of there was a BIPOC person and then could that person sue in addition of that issue specifically in addition to the use of force. And what do you mean as far as the saying that you know it was a violation of their civil rights? Well, that would be a federal issue that could be brought against him. Potentially, I mean and civil rights typically will depend themselves to constitutional violations so it would depend on what that is, but this is sort of just you know I'm using the negligence example, but there are other avenues. I would actually say that civil rights violation probably covered by this because it typically is a constitutional violation. It would be included and it couldn't go beyond the $500. Hey, Ben, we're running, I don't want to go much, you know, we've got about 15 minutes left, so if we can at least get through the walkthrough of this draft and then see where we go on Friday. So, yeah, of course, I feel like I'm running out of time for this bill. So, we are taking up again tomorrow? Friday. Okay, thank you. Well, I'll speed it up. So, Subsection G. No, it's not your fault. We've got legitimate questions, Ben. They're doing fine. Well, thank you all. I'll still do my best to expedite. So, Subsection G is the attorney's fees provision that we talked about. The change here, which I think I discussed the last time is from lines 16 through 20. There's the addition on lines 19, starting that when a judgment is entered in favor of a defendant or court may award reasonable attorney fees and other litigation costs, reasonably occurred to the defendant for defending any claims that the court finds privilege, which we had before, or brought with malicious intent or the retribution for otherwise lawful conduct. This was an effort to capture the concerns raised for those lawsuits and sort of other deterrent factors to prevent defendants or plaintiffs from basically levying those types of lawsuits. So, this would be things that are brought up maybe just intent to hurt an individual financially and really for no other basis. Or everything that they did was completely legal, but they still filed the lawsuit anyway in retribution for whatever reason. So, again, just more basis for the court to award those costs and fees to a defendant if it finds those things that have occurred. Subsection H is the three-year statute of limitations. 5609 is the notice of claim. This is something that was contained in the New Mexico law, is also present in a lot of other states like New York for any actions brought against municipalities or state entities. So, this would be a conditioned precedent to starting a lawsuit. An individual would have to file a notice of claim within a year of the event of turn and prior to filing the lawsuit. And the notice of claim would have to basically give the outlines of the circumstance. It would have to give the name and post office address of each claimant and their attorneys if they had them, the nature of the claim, the time, place, manner in which the claim arose or occurred, any damages or injuries that were sustained, and it would have to be sworn by the claimant to say that all of this is true. And it should be served on a law enforcement agency, either by personal service or by mail to someone designated to set that service or to their attorney. The intent, and there's also a subdivision here for wrongful death claims, which it gives a little bit more time for the representative of the person's state to file the claim and extends it by six months, so it would be a year and a half, but it wouldn't be required if the decedent had already filed the claim before they died. This serves a couple of different purposes. One is, again, it's to make sure that the claim is real, to prevent frivolous suits, but also puts the law enforcement agency and officer on notice, and that may help with insurance issues and notifying insurance companies and things along those lines. There's also a subsection, that subsection E, that the law enforcement agency would have to maintain a record of all notices of claim served on the agency, and then also each record and each notice of claim would be subject to a public records disclosure unless an exception were to apply. There are no questions on the notice of claim. Section 5610 is the indentification of law enforcement officers that I alluded to before. This says under subsection A that the law enforcement agency shall fully indentify its law enforcement officer for any liability occurred, any judgment, any settlement for any claims arising pursuant to this chapter, and then subsection B mirrors the caps on the individual law enforcement officer so that the liability of the law enforcement agency would be $500,000 to any one individual or $2 million to all persons arising on each occurrence. Subsection C is a mandate for law enforcement agencies to maintain a record of all final judgments and settlements paid for the claims, and again these are also subject to the Public Records Act unless an exception were to apply. And section two is the effective date. So Ben may I just ask a question about that, about the confidentiality? What if the person does not want the settlement to be known? That's irrelevant, right? It would be public. I believe that there are considerations in the Public Records Act that could, you know, there could be redaction of names and so personally identifying information. I would have to double check that though, and we could also draft in some language to ensure that you could acquire the person's consent or some other mechanism to ensure confidentiality is preserved if it's so wish. Thank you. Can I ask how this impacts municipalities? If at all, I mean it, we are saying that the agency, the law enforcement agency has to indemnify the individual, but is there an impact as a result of that on whether municipalities could also be sued? No, I mean this again, this is really just against the law enforcement officer, but a law enforcement agency could be sued. This bill and this law just wouldn't apply in that situation. The only effect it has in the law enforcement agency in this regard is the indemnification of the law. We have some testimony from the LCD effect. I was going to ask Senator Sears, are we going to have witnesses come back and talk about this revised version? No, we just ignore them all. Of course we will. You know, I've already heard people who don't like either from both sides who don't like this draft. So I, of course we will try to hear from both sides, but right now with the limited time to crossover, we may need to go with a different plan. But I think it was important, I thought it was important for us to at least understand what draft 2.1 was, and at least it was an attempt by me to try to find some middle ground and given my emails from both sides, I would say I failed to accomplish the middle ground. I appreciate your attempt. So I appreciate, I'm grateful to the committee for going through this process. I think we've learned a lot. I think we have a lot more to learn. But I will say that once I've heard from both sides, they don't like this version. It's probably a good sign that they're probably not going to fly. But I thought it was important to at least, since we put this out to various groups, I thought it was important to have Ben at least walk us through it for the committee. And we'll continue to try to come to something. But yeah, without going too much further into it, I appreciate the question, Senator Benning. We've been together for so long that I think we begin to read each other's minds, which could be positive, can be negative, right? Or scary. I appreciate the comments. When I first looked at it, my initial reaction was that we have actually reversed what was being requested in the first place. And I didn't know, I would very much like to hear from both the proponents and the opponents of the original bill and see what their thought of that is. Putting the cap on the way the cap is worded here had me immediately thinking that JD has probably come in and said, I don't like that idea. I could be wrong, but that was the first reaction they had to it. I think it could be right. Senator Sears, I don't know where you are with the meeting right now. I have another meeting at 12. I think we have to end very shortly. So obviously, we won't have time to hear. You know, I do want to go over page 6c. Is there a way to get that information without putting it into statute? I mean, what we heard from, let me just be totally frank. What I heard from one side was there's a problem. What I heard from another side was we're making huge millions of dollars in payments, cumulative over the last 10 years. I've got examples from Bennington where they've reached settlements with people. I've got examples where the city of Burlington reached settlements with people. I've got examples where the state of Vermont reached settlements with people who believe their civil rights were violated. And obviously, there was a settlement. And we heard testimony from the League of Cities and Towns about their insurance policies. Is there a way of getting at this information so that a future legislature would know the scope of these judgments? Well, judgments and the complaints are all usually public record anyway. The settlements may be subject to confidentiality. So that would probably be a different story. But a lot of times you could access those judgments and complaints from the court directly. I guess I'm wondering who we get a report from. We'd probably ask the court. Ask the court, but do they approve of the settlements? I suppose they do. No, there could be confidentiality requirements in the settlement itself. But we have spent quite a bit of money on this new odyssey filing in the public portal system that will at least get to the judgments. And we might be able to get an aggregated like how much has been paid out, even if there are confidentiality requirements. How much has been paid out by the VLCT and how much been paid out by the state and all that. It's just an aggregated. Well, I realize people have other places to go and we'll pick up with this on Friday morning and try to, yeah. I believe we're on the floor at 10 Friday. Hopefully it's 11. I think it's 10 on the 18th. 10 on the 18th and 11 on this Friday. So Oh, okay. Okay. I will see you all in person. And tomorrow here, 945. 945.