 I'm going to get going like 8 to 10 minutes and zip up to House General in a few minutes. So then we'll take over. Great. And everybody has the new draft or access to it. Maybe we'll have Martin take over since it's his bill on this. All right. All right. Hey, good morning, everybody. Good morning. We're Patrick with the Office of Legislative Council here to talk about a proposed amendment to 8.6.10 and act relating to firearms and domestic violence. The last time I was here we went through free thorough walkthrough of the bill as is. I think I mentioned that when successive drafts come out, I use yellow highlighting to indicate where the changes are between the current draft and the previous one. And when I do that, I'll usually typically get rid of the yellow highlighting that showed the change between the previous draft and the one before that. So obviously, as time goes on, there's less yellow highlighting to see because there are fewer changes, but that could change depending on whether or not, how the bill is going. But the document that you see in front of you, version 5.1, you'll notice what does have less highlighting than the previous one because there aren't as many changes between this draft, proposed changes, I should say, between this draft and the previous one. So I'll focus on those again, if that makes sense to everybody, to kind of where the changes are as opposed to starting from ground zero again. Can I just add something? In future drafts, now that it looks like we're going to start seeing a little bit less and less, the highlighting of the proposed drafts would be that the proposers are putting forward. Is it possible to choose a second highlighted color to see what the changes from the... Because what's happening is we're kind of, as I'm looking back in previous drafts, I'm losing track of what we talked about. Exactly, so that we have an idea of what the previous changes are. Yeah, yeah, I'm sure we could do that. And I might say that there are times when that can get a little... Right, when you're changing a change. Exactly, a good way to put it. But we could save that as a separate document. Closest is possible. Right, sure. So as far as the highlights, literally and figuratively, of this draft, you remember the first section had to do with background checks, generally, with the default proceed process in background checks specifically. One of the default proceed process is the provision in federal law that allows a firearms transfer to go forward if there hasn't been a response from the national criminal background check within 72 hours, within three days. So generally speaking, the transfer has to contact NICS, get approval for the sale, find out if the person who's purchasing it is a prohibited person, whether because of a criminal background or a mental health background or a fugitive from justice, any one of the other A&I-enlisted categories. And they find out whether or not that person is prohibited by a virtual being in one of those categories. And if they're not, they send them a unique identification number for the sale to proceed. And remember, under this default proceed process, if they don't get an answer within three days, the sale can proceed anyway. So that's the state of the law. The bill, as it was introduced, proposed, you see the highlighted language on lines 15 and 16 is new. And the proposal originally had been that the transfer and the transaction, the sale, cannot proceed until there's a response from NICS that the person is not a prohibited party, not prohibited by any one of those categories. So in other words, that default proceed at 72 hours would not apply. You have to wait until they got a positive response and you couldn't go ahead and proceed with the sale even if there had been no response after three days. Everybody remember that? So that was the way the bill was introduced. See the proposed difference now. In a sense, you could call it a longer default proceed. It's the same idea, but it's a 90-day provision, not a three-day provision. So if there's no response given from NICS to the proposed transfer or the person who's selling the firearm after 90 days, they can go ahead and proceed. Similar concept, longer period of time. Or longer but also perhaps shorter because it was indebted. The way it was introduced, there wasn't a cap. Yes, that's right. Longer than the existing federal law, shorter than as introduced. That's right. Is there any other state to use 90 days or would this be a uni? I think the longest ones I've seen are 30. I think California and New York took 30 days. I'll double check that story about that. Yeah, Patrick, I chose 90 because of the testimony. We actually did 88 days or three months, but I guess after my understanding is that after 90 days, the case is for an hour or it's not pursued. So that's... That's right. I'm sorry. And there are also two states that don't have any timeframe that was originally proposed. Like what we had originally. Anything else on the background check? Peace. All right, so moving on from there to the Relief from Abuse Order section. Remember, these are provisions related to RFAs, Relief from Abuse Orders, in order when the court issues when it finds that there has been abuse and that there's going to be danger of further abuse. The order can contain a number of different things. Provisions to vacate the premises or to maintain a certain distance from the plaintiff to not have no contact, no contact order, along those sort of protective orders, protective provisions that can be in the RFA order. And the provision in this bill in 610 is specifically dealing with firearms and how they're addressed in Relief from Abuse Orders. And that the concept had been some particular provisions being required to be in the order. Having to do with firearms, right? Is there mandatory provisions that would have to be in the RFA related to firearms? And it sort of goes from the bottom of page 4 under the top of page 5. But these are mandatory provisions. One had to do with firearms relinquishment. The other had to do with residency requirement whether the person had to vacate a residence. And there's a third one that had to do with a notice, providing notice to the defendant that they're going to be prohibited from possessing firearms going forward. So, you'll see the, in some ways it's, I think I mentioned this earlier, it's a little counterintuitive that in the statute the final order comes before the emergency order. Because what happens chronologically first is the emergency order usually. Now, there's always one, but that's, if there is, that would come before the final. So, we're looking at the final order first here. And this is the one, the permanent order, the final order maximum of a year. But remember, the emergency order is the one that can be got ex parte. The defendant doesn't have to be there, the victim can go in on their own, make a showing of harm, the abuse, and threat of future abuse, and get the order without the defendant's presence. But then you have to have a final hearing within 14 days. So, you've got 14 days within which the final one has to be scheduled. So, in the final order, which is what we're looking at right here, you've seen for a while there have been sort of this back and forth discussion in the committee about should the relinquishment piece of the final order be mandatory? Remember that? Should it be a shelf? Should it be a maze? Should it be required? Should it be discretionary on the part of the court? In the previous draft, you see that there had been a proposal that the order be mandatory, and this is the struck language, lines two to four, page five. The order was mandatory unless the court was finding that by clear and convincing evidence, relinquishment is not required to protect the safety of the victim of public. This actually goes back to the language, which just kind of goes to your point, though, showing multiple drafts. This is going back to the language as introduced, which is require the immediate relinquishment until the expiration of the order of fire. So, the final order would require relinquishment until the order itself expires in this proposal. Does that make sense to everybody? Is that how that would work? We're going to jump, well, I think we'll go pretty quickly. I'm going to jump really quick to the emergency order. Just so you can see that the difference between the final and the emergency. So this is on page six. And I see the emergency order is different. This does not require relinquishment in all cases. This says if the plaintiff or plaintiff or Dr. David indicates that the defendant is in possession or has access to firearms, then it can be required. Everybody see that? So it's not mandatory requirement in all cases. It's relinquishment if the plaintiff has brought evidence either in the complaint or the applicant that the defendant's got firearms or has access to them. And in that case, relinquishment is required. So again, difference between the emergency and the final. So I'm showing these required at the emergency stage where relinquishment is going to be ordered. Whereas in the final, it's just relinquished. Good. And then similar change you'll see. Actually, this isn't very much. So this is back to the final order again. And this has to do with vacating the premises. Remember, or I should say prohibiting the defendant from residing at a resident where firearms, residents where firearms are present. Remember that concept has been in the bill from the beginning as well. This proposal modifies that a bit. And instead of prohibiting the defendant from residing there, unless the court makes this clear and convincing finding, which is what had been in the last draft, it says if the order does include a requirement of vacating, because it doesn't always, but it might. And if it does, and that's an express part of the order, then the defendant's going to be prohibited from residing at the residence where firearms can be accessed. So it's not necessarily where, it's not where they're present. It's a bit of a higher threshold. The present there is that in some way, they can actually be accessed by the defendant. So if the order has a requirement to vacate the premises and the residence is a place where firearms will be accessed by the defendant, then it's got to prohibit the defendant from residing. Is there a question there? I think I know the answer, but I just wanted to clarify. So if somebody is ordered to go, if somebody decides to go to a family member's house and that family member does have firearms, but they're locked in a safe and the defendant does not have access to the keys or anything, that person is allowed to go to that house and stay there. That's the way I would read that. Okay. That could be one way where they would not have access. Right. Just want to make sure. Yep. I see no changes to the other provisions that have to be in the order. One sort of information providing that the defendant can't possess firearms until the order expires and also if the order does cover relinquishments, then they have to include information about the type of location of firearms. There is a bit. So now we get to the emergency order, the initial one that can be issued ex parte. We already went through the relinquishment piece. This includes a relinquishment piece. If there's information in the plaintiff's complaint or affidavit that shows that the defendant has or has access to firearms, their vacate language is the same as we just looked at. If the order has a requirement to vacate then and the firearms can be accessed, then it prohibits the defendant from residing at the residence. Now you see there are three reports also to say no changes. This is the information and the information provided to the defendant and information about the types of firearms that are there. Sub-Division Roman No. 5 though, you see that line 13. This is new and this is really connected to, you remember we discussed last time, the issue of one served or one served. And that idea is that when a person, when a defendant is served with the emergency order, the service means personal service by the law enforcement officer. If they get served with that emergency order, then future orders can be served by first class men. The idea is, remember that discussion about, I think that's the piece that I assume I was actually here with that the judge from New Hampshire talked about because they have that process down there as well. The idea there being that once a defendant has to personally serve once, not to require the personal service to second time and some language was added, I'm going to jump to that and then skip back and see what's in there. Sorry, shouldn't that be added in there? That it is going to be served by first class men? What is that left out? Yeah, you're right. That piece is just, that is down here, I put a mistake here. But yes, that is elsewhere. Oh, here we go. But the first class male piece is covered, I believe, on page nine. Yes, thank you. Right there on the very last paragraph, page nine, subdivision two. So this is the situation I was just talking about. They've already been served with the temporary order, that's line 16, and that's the case they can be served with all subsequent orders by first class men, the defendant's last known address. And the defendant has to inform the court of any changes and then you see that last sentence, this is what's connected to the language we were just looking at, this very last sentence here. The subsequent order, including any changes made to the temporary order, shall be affected when the subsequent order is issued. So in other words, you're not requiring personal service in the case of this later order because they've been served personally the first time. So the subsequent order is affected when it's issued by the court. And that's why this other provision that we just looked at is to notify the defendant of that point. In other words, that way the defendant is being told, look, if you've already been served with the first order, the emergency order, any orders that come after that, are affected as soon as they're issued by the court. So this has to be in the emergency order. The idea is to provide notice to the defendant that if there's any orders issued subsequently, they're going to be affected. They're going to be bound by those orders, essentially, when the court issues them. If I could, I think Ken's concern is that the... Sorry, speak for you. Oh, go. There's a dangerous place for you. I think that the person is not being told that the order is not going to come in a manner that they're used to receiving it. So by not telling the person, like, check your mail. Right, right. Yes, good point. That's not in there. Right, I missed that. Like, follow through with this so they know exactly what's going on. Sure. Thank you, Matthew. Yeah, that's right. That language has been there, but... So just to comment on that, the idea isn't to have them check their mail. It is that they need to show up at the final hearing. I understand that. I'm more saying that a person may not know that reading that, they may be trying to adhere to that, but not just letting them know that it could come by now. Awesome. Very good for that, Pete, for now. This is just some specificity. You know, if you remember, and we'll get to this in a little bit, there's some specific provisions in here about what the return of service has to include. And return of service is when the law enforcement officer serves the defendant with the relief from abuse order. Here's the order. You have to stay away from the victim. You have to maintain whatever other conditions are listed. You have to adhere to the provisions of this order. This is essentially a form requirement that's saying to the court. Make sure that when you update these return of service forms, that it specifically includes these requirements that are in the bill then run. So sort of a bit technical in that respect. But it's a directive to the court to make sure that these provisions are in the form that the court produces. This is a technical correction as well. You remember Judge Greerson mentioned this, that defendants do not actually attend the emergency hearing so there was no reason for them. This is existing law. This is under subdivision B1, subsection B1. That there was no reason to reference the temporary order statute here because they don't actually attend it. So this is what I was just mentioning. The return of service form, this is the specifics of what has to be in the form itself. You'll see that there are some provisions added here between this draft and the previous one and the previous draft that you looked at. The return of service had to include specific language about whether firearms were being relinquished by the defendant. So again, when the return of service comes back to the court because that's where the order served on the defendant, the return of service goes back to the court and tells the court, hey, it was served. It tells them when, where it was served. This is requiring some specifics to be in the return of service about firearms in particular. First provision is the same as what we looked at last time, whether firearms were relinquished, but then it adds a couple of other provisions. What else has to be in this return of service? Whether a warrant is being sought. In other words, you think of the law enforcement officer because remember the warrant procedure has been moved to later in the chronology here. And so if the law enforcement officer, after serving the order, has some reason to believe, some probable cause to think that the defendant still has firearms, they can then go seek a warrant. So the return of service has to indicate that, whether or not they're going to seek a warrant at that time. As well as subdivision three, if I'm canable with reasonable effort, see a typo there, two widths. The defendant's mailing address for service of future orders and finally in subdivision B, the court has to provide a copy of the return of service to the plaintiff. So the return of service is going to come back to the court with the law enforcement officer and then the court provides the plaintiff's copy. So then, that way the plaintiff knows all this information that was solicited right about there. Whether firearms were linked with, whether warrant being sought, et cetera. And again, what we just looked at what has to be in the form, these things have to be in the form with the court general. Some, just a minor change, subceda, this return of service general has to be filed with the court at the earliest possible time, take precedence over other summonses, but not requiring that the advocated be filed at the time because, again, that was a little premature because the officer might not file it out to David at that time, might not actually think that this problem will cause for anything, might not have been concerned about firearms, so it's not necessarily true that there were new people in that. Now, this is what happens if the defendant doesn't relinquish firearms upon service of the order, right? So, if they don't relinquish firearms in a timely manner, this will be after service of the order, and the law enforcement officer that this problem caused to believe the defendant still has firearms, generally requires the officer to apply to the court for a search warrant, and you see some added language on line 10, pursuant to Vermont Rule Criminal Procedure 41. This was something that Judge Greerson mentioned. Rule 41 contains all the procedures for filing a warrant, things about what time, sorry, for serving a warrant, as well as filing for one. What time of day can be served, what's the manner in which you apply for one in the court, what has to be in the affidavit, what has to be in the application, et cetera. So, I think Judge Greerson was mentioning that without some reference to Rule 41 or some other express list of all the procedures that were required, it wouldn't be clear what procedures the law enforcement officer had to go through when they were requesting this warrant. So, that's why that piece is there. You also see some added language writing seven, this permits, so again, the officer isn't required to file for a warrant if what's known as a judicially recognized exception to the warrant requirement applies. And there's five, I think, the courts over the years, generally speaking, Constitution requires a probable cause and a warrant before a search and seizure can happen. Courts over the years have recognized a few exceptions to that. Plain view, for example, if an object is in plain view, you don't have to go get a warrant. If there's any consents to the search, you don't have to go get a warrant. If exigent circumstances, in other words, a hot pursuit, for example, the right in the middle of a crime pursuit. So, if one of those applies, then also no requirement that the officer goes equal warrant. And that's tracked on civil language when you have, actually, a couple of the drone statute, for example, you generally require law enforcement to get a warrant before they use a drone, not one exception to the warrant department glass. So, you'll see the subdivision three here is struck completely. This was, well, what if the officer doesn't have probable cause to seek a warrant, but they might have some reasonable suspicion that the person might still have firearms? There was a process set out here for, they have to conduct an additional investigation for four to eight hours, let the court know how the investigation went, so that whole process is struck. So, there's nothing going to be specified what's going to happen in that situation. This is the immunity provisions. You remember, this provides the enforcement officer with immunity from being sued civilly or being subject to a criminal prosecution for essentially complying with the terms of the statute. As you saw the last draft, it was providing immunity if the officer fails to learn of a locator firearm. The proposal here is to strike seizure, so they're not necessarily going to be immune from failing to seize a firearm while executing a warrant, but I don't know that that's necessarily something actionable anyway. Could I just interject with a quick question about that? And I think from a discussion with you last time, I mean, even without the immunity around seizure, it sounds like there was lots of case law that definitely applied to provide the potential immunity there. There would just be more than case specific. There's a ton of case law about law enforcement officer liability for one that can be sued, and one that can. Seizure. I don't believe so. Yeah, I think that not having that there means that whatever you underline case law is public. So otherwise, no changes to the immunity provisions, though. That's the end of the RFA section. Under Erpo's extremist protection orders, I almost think that there's no changes in this section between this version and the last version. Here there's only the only change between the version as introduced and what you're looking at now is this language on page 14, and that's that you remember that as introduced is permitted, proposed to permit an extremist protection order petition to be filed by a family or household member. And the current law has to be filed by the state's attorney or the AG. The proposal here, and same as the last proposal, was that if a family or household member does file for an Erpo, it has to be done during regular business hours. That's lines eight and nine. Yeah, I think all the rest is just making conforming changes. No changes to this provision. This is the HIPAA provision that allows health care providers to inform law enforcement officers when they think that there's a serious name and threat to public safety. Conditions of release, also no change that adds to the conditions of release that the defendant doesn't possess firearms or other weapons. And lastly, there are two additional reporting requirements proposed in the STRAT section 13 and 14. Section 13 is a Department of Public Safety report reporting to this committee and the Senate Judiciary Committee on the process of this modernization reform program and steps that is taken to provide assistance to local law enforcement agencies in seizing and storing relinquished firearms. And an attorney general report in section 14 requiring the AG to report to the same two committees on the progress of their firearms technical assistance project in implementing this act including any remaining barriers to state implementation. Oh, I'm sorry, actually there's a change in the effective date rather than taking effect on passage that's July 1st of this year. I think the idea was to provide, make sure that there's a little bit more time for the state agencies to conform their prices because otherwise it might be effective in April or May whenever that might be because I look for more information. So, I had a question I thought of after my initial chart part on the default proceed portion. Okay. So, the way it works now when you go in you have the first day where you submit to this check and then you have the three business days and then on the fourth day you get to get the firearm goes through or does not go through. So, this 90 days is this 90 business days or is it just specifically 90 days from the point of when this is initiated and is it 90 days from when it's initiated or 90 days the day after it's initiated? I'm not 100% sure about your ladder question about whether it starts on that day or the next day, I'm not sure. But it is calendar days, not business days. So, generally the way unless you say business days approach to using days now and the amount of statuses unless you say business days it's calendar days. But I'm not sure about the start of that day or the next day I'm not sure. And then the other one I had was on page 11 the judicially recognized exception to the warrant requirements. What would be a judicially recognized exception? As I say, there's I think five that are most commonly known about plain view. So, if an object is in plain view the object is outside somebody's home or stops somebody on the highway it's something that's in plain view there can be times when they don't have to necessarily go to the court to get a warrant. Just a quick modification if the officer's outside the home and can see it in plain view that's not plain view you actually have to have lawful presence to see as the object also. So, you can't just see it you have to actually be it has to be within your reach as well. Just so you're clear. We can't go into somebody's house because we see stuff on the table. Right. If you read it in house and for the record Sorry, Mike. That's really important. Yeah. If you just identify yourself Commissioner of Public Safety, Mike. Great. Thank you. Right. Assuming the lawful the officer was lawfully present where they had a right to be then the object's in plain view, right? Exactly. So, if somebody's invited you say to the law enforcement officer come in and talk to me and they see it on the table. Yes. Generally okay because they've given consent to the presence of the officer and consent is another exception. So, that's one of the other warrant exceptions. The person can consent to you don't have to go get a warrant if the person says fine. Right. It's better known than that one. There's also, as I said exigent circumstances if it's in the midst of an emergency type situation you don't have to stop the chance, for example, to go get a warrant. I think the fourth one is oh, incident to arrest. So, if the law enforcement officer arrests somebody they can do the search of the person. You don't have to go get a warrant right then. And the other one is what's known as a regulatory for administrative search. So, you think of, for example, housing code, city housing code permits officers from the city housing to go around and look at people's houses to make sure they're in compliance with the city. You don't have to go get a warrant every time. As long as it's in conjunction with the sort of regulatory system that's in place I think those are the five. Most common ones. So, just one more net area on two. If the defendant does not relinquish firearms in a timely matter other people's timely matter might be different than my timely matter in Israel. Is that covered? You're right. I think there's some flexibility there. Some room for argument as to what would be coming and I think that's going to be ultimately based on the facts and circumstances of a particular case the court's going to look in. But you're right. There's not specificity about what's timely and what isn't. And just on that same portion for flow of the sentence should it be, still have something referencing that there was service of the order and it was in a timely manner and that because we strike upon service of the order but it shouldn't have something like after the service of the order in a timely manner after the service of the order. Yeah, that's a good point. That might add clarity. Right. Right. Just trying to go over the difference between the relief from abuse order and the emergency procedure because they are different and I'm not sure exactly the reasons why they're done that way but the way I'm reading this one of the initial concerns that we heard in testimony was that we were mandating a that we were taking away discretion from the court in different circumstances and the relief from abuse section under this proposal amendment would continue to do that, correct? And the final one, yeah. For sure. They'd be required to do that without discretion. Correct. Yeah, okay. We are giving discretion here in the emergency one in certain circumstances basically anything having to do with firearms so on that form that we saw the other day that firearms box is a check and the court is going to issue a similar order even on a temporary basis. I didn't see the form with the checking meaning that the person has firearms. I guess I should say I didn't technically see it but I didn't see two people say there's a section out here about firearms so if there's any mention of firearms at that emergency hearing the court must the court shall issue the relief. I think at least if I would mention I would say I agree with you assuming that mention means if they mention it in their complaint or affidavit. That's the way it's written. Does what's said in the procedure and during the court hearing include was that included in the complaint? I would say the way this was written? No. Now that doesn't mean that if the plaintiff at the hearing mentions firearms that the court couldn't go ahead and still include that but not really. But that would be at their description their best judgment is whereas we are taking that judgment and basically just saying you mentioned it in those circumstances. Thank you. So this is draft 5.1 Right. Last draft was 4.1 one before that 3.1 When we were I don't know if this is viewer just some concerns that I have we had 3.1 at one time on the table and at the at a late hour I'll say there was some major changes to it some major amendments and unfortunately a lot of people who were testifying at the time were going to testify on 3.1 and but when they when we came in to meet 4.1 was on the table and it was kind of made some of the testimony that was prepared a move point because just because things were changed and my concern now is it could possibly happen again I mean we have a list of I don't know 10 or 12 people on the list to testify today and I'm going to assume that most or maybe even all are going to be testifying on draft 4.1 and not this new draft 5.1 and another concern I kind of have is I feel like we're circumventing the committee process because we went from draft 3.1 to 4.1 which had some major changes and there was really no committee discussion no committee vote whether we were going to accept partial or all all the changes and now my concern now is that there's another large group of changes in 5.1 and I mean are we going to do that again where it just kind of slides through without a lot of committee discussion or any committee votes so that's just some concerns that I have yeah I understand what you're saying Tom I think that's one of the reasons why I was asking for trying to keep track of the changes because I understand I appreciate that the main proposals of this they're listening to what's being said and trying to come up with stuff but at the same time no one has a right to amend the bill once it's in the committee with the exception of the committee as a whole so as far as we didn't already amend the 4.1 but they can submit as many drafts in consideration by the committee but I think that at the end of the day right now 6.10 looks like it was introduced because the committee hasn't taken a vote yet to change it what I'm suggesting has been in the future based on testimony when the bill passes out of here we could pick some stuff from the original bills some stuff from 2.1 some stuff from 4.1 and maybe some stuff from 5.1 or 10.1 you know as of now this draft the former drafts they mean nothing because the committee has taken no action 6.10 still resembles original form thank you I appreciate that I'll go back to my other concern of people who are testifying on 4.1 not everything prepared and here we are on 5.1 and I would say I wouldn't have no problem at all with anybody rescheduling their testimony so they can come in and testify on 5.1 just a comment certainly in other situations and can happen here again if somebody is not prepared to testify to these items they can ask and say they are not prepared to testify on certain items we did get this out to folks yesterday it wasn't enough time they don't want to testify on those aspects then obviously we'll give them more time I don't know if it was enough time for people it wasn't the last time and it was out about 2 hours earlier the day before any questions for Eric alright thank you thank you good morning that's a counter that's great everyone wants to go last today for some reason I was going to listen for a while as well for the record Mike, Charlie, Commissioner of Public Safety we did get the bill last night along with a variety of other works I have been through it it was really helpful to hear David's run through as well you know the VPA is going to be in they've shared some comments with me I haven't had a chance to really digest in full their position as well to speak to that so I'm just going to work off the existing version of the bill and I think I will actually be brief it's an from where Department of Public Safety sits I think it's an improvement over the last draft that I testified by phone again thanks for letting me do that overarching concerns continue to be prescribing particular types of work especially as it relates to search and seizure you started here a very brief less than a fraction of a percent of the description of how complex the search and seizure environment is there's actually a great treatise if you have an extra six weeks of your life written by a guy named Wayne LeFave on search and seizure it's two full volumes that make the green books look like kids picture book that's how complicated this operating environment is and how complicated it is to train the point of saying that is that adding a directive component of getting a search warrant does create added complexity in our operating environment in an environment that is already difficult to navigate we actually ran into some statutory language yesterday not in the building this was operational where there was no real conceivable way for an officer in this case it was language that directed chief to do something specific there's no way for them to know that that language even exists unless they were a chief at the time this happened so I bring that up just to say that the complexity of what we're doing needs a systems approach so I'm not saying don't direct search for us at this stage I'm just saying there's a danger in that in adding that level of complexity my suggestion on that topic is to it's a danger to everyone really because the consistency with which we train eleven hundred people to operate you've got to it we back up ten steps we expect a police officer in the 21st century to do everything from being able to interview a three year old as a survivor of a crime to be able to kick in a door on a tactical search warrant there are very few people on the planet who can do all of those things at a super high level so as a result it's really a team environment we have to be able to have people that can do cross sections occasionally they can do all of it and one of those sort of technical topic areas is criminal law patrol procedure being able to operationalize all that stuff that's behind you in those green books which no longer exists just in one or two places title 13 historically the rules of criminal procedure is now scattered across an innumerable number of statutes the more complex we make it the more chance there is for error what I'm saying is there is a robust system for how we do search and seizure how we train search and seizure how we train probable cause to get search warrants this is part and parcel of something we do every day adding another fragment of direction on it just further fragments the operating environment and makes it more confusing to operate it so the chance for error goes up because we have added complexity so you're talking I guess it's a danger trying to follow the policy and an inherent danger in the practical end of it where you're out in the field more of a danger there yes but I don't know if you can put a number on it but how much more dangerous would it make it in the field no way to know that so I have those to my suggestion which is if I was going to make incremental progress on this topic the first thing I would do is look for information on the scope of what's happening so in the roughly 700 abuse prevention orders that are issued every year how many involved firearms and then how many are there instances where we have probable cause so start to track that there will be differing opinions on whether to track that in the abuse prevention order form the return of service we don't have another mechanism at the moment if you recall from my testimony we are actively pursuing two new information technology systems a core computer dispatch and records management system and an electronic warrant system that will eventually also cover abuse prevention orders that will allow us to do that in a much more robust way it'll actually also allow us to systematize some of these things and create a better flow to defragment a lot of this work but those things don't exist yet we are working to address some of the concerns that I'm talking about as rapidly as possible but in the current operating environment my concern remains continuing to add complexity again I'm stopping short of saying it's the wrong policy choice I just want you to be aware of the of the concerns so I assume we're talking about what's at page 1011 which is the warrant requirements so what we're trying to get at as I understand is for this situation is the timing or urgency and then also keeping the victim in the loop so there's some sense of safety that something is being done and I think we're open to suggestions we keep on trying to make sure that we're not impinging on the discretion of law enforcement to safely execute the warrant to safely determine what the warrant is required to serve the RFA there's some additional language I know that Beth and the botany is offered that makes that clear and I think that language is good but that's what we're after and if there are suggestions of how else to get to that goal I'm certainly open to it and I would suggest in short term I'm not what essentially amounts to a checklist with a few additional questions to the return of service on the abuse prevention order service eventually where we're headed by eventually I'm hoping that is within the next 12 to 18 months but it will depend on how fast we can work with the courts to adopt some new electrosystems when once the electronic warrant system can handle the orders, the technology we can deploy it will allow us to send updates as everyone shopped at Amazon you get updates every time something happens you make the order, they ship the order, the order is delayed that technology exists for us to do exactly the same thing with abuse prevention orders if you get an order and you give an email address every time that order is touched in that electronic system you'll get an email saying here's the update not necessarily that what's happening with the judiciary, although we might eventually be able to build that but what's happening with its service in the law enforcement realm the law enforcement agency has received it it's been served they've made multiple attempts but it hasn't been served however we set it up there will be a much more 21st century way for people to get that information so that's both a short view and a long view to how to create systems around how to do this you're going to get sick of hearing me talk about systems for the next four months but that's the approach we're taking is how do you systematize and what we do so that you can get reproducible results that we want does that answer your questions sir? it does and that doesn't necessarily address on page 11 subsection 2 which is the component that states that the defendant does not really push firearms in a timely manner and the law enforcement officer has probably caused the defendant to possess his owns or control firearms the officer shall essentially seek a warrant what we're assuming there is that we're not doing that already so what I'm suggesting is a let's measure that to begin with so we know whether we've got a problem to solve and then go from there direct we're the statute books are creeping into lots of different areas directing operational or directing directing us to do things or directing us not to do things that are really granular things and there's a hazard in that because if that keeps going you'll have we'll have a federal constitutional overlay these two gigantic insertion seizure nothing of all the other topics two gigantic volumes written by Lefebvre that guide this it should say they guide this the courts guide it there's that much information that it has to be synthesized into volumes because it would take up rooms otherwise then we've got a whole policy, then we have state statute then we have the policy overlay and then you actually have to operationalize all of that on a day-to-day basis where there are hundreds of events occurring and you have to have some flexibility in the way that you prioritize a limited number of resources to execute all this stuff all I'm talking about right now is search and seizure there's a hundred other topics that intersect what we do on a day-to-day basis so I'm simply cautioning you that the more we do that the more you say do this under these circumstances or don't do this or don't use this tool it's just not a good way of managing day-to-day complex operations in statute just one follow-up and how would you suggest is there a way that you could measure whether this is happening you mentioned that you start with a form you really only have 700 forms that come in that's not a giant universe in a year how many of those are involved in firearms I don't know the answer but I'd be surprised if it's more than 20% so if I'm doing math correctly that's 140 forms we can actually hand count those this isn't a giant universe of things so I start with that would you return of service the information the checklist that we're talking about and again I want to be clear I'm not suggesting that we shouldn't be focusing on these things as reducing a risk profile in an event if there are firearms present and there's an abuse prevention order in play that does enhance the risk profile we should be acting on that I'm just questioning the methodology whether that belongs in a statute because it becomes an immovable object at that point I just want to make sure I'm understanding the testimony I think what I'm hearing you say is don't change police practice through statutory revision but change the form and collect more data and look at the issue or do you think in changing the form that will lead to the that will lead to the change the measurement of something changes its outcome right so I am suggesting that by measuring it that's the first step to elevating its importance in the scheme of things I'm not suggesting however that this kind of a scenario is not already important that we aren't looking for creative ways to ensure that victims are safe even in the absence of this but adding tools is not a bad thing directing prescriptively exactly the methodology to do it is a little more difficult so how would you then if there weren't clear directives address the variability in police practice from you know law enforcement agent to law enforcement agent let's measure it first and see if there's disparity in this goes to the larger systems context right so we want to ensure that we get similar outcomes in all 251 Vermont communities that is about delivering systems and I think next week we'll have an opportunity to talk in greater depth about our monetization strategy that's the crux of where we're headed is create consistent outcomes for Vermont communities using a variety of strategies from data to better supports better state supports the local and county law enforcement and public safety entities in general we've got an entire strategy for that so it's not about solving one inconsistency it's about trying to help folks create consistent outcomes universally I don't think you're getting inconsistent outcomes because folks want inconsistent outcomes it's because it goes back to the complexity it's a really complicated operating environment and that's what creates inconsistent outcomes the more we can create systems and checklists for things the better the outcomes are going to be that's the approach we're taking to pretty much everything in this modernization realm there's more nuance than that but if you take it at the 80,000 foot view that's how to push things forward into the 21st century and do you feel like just one thought question if that's okay and do you feel like so hear what you're saying about needing to measure and understand disparities and gather better data and create more consistency I really appreciate your focus on that I think that's very in line with what we've been talking about in this committee but I guess my question is then recognizing that these are really high risk situations for people who are the ones experiencing the risk and the increased risk of fatality which I think we've seen enough data not to have to argue against that reality do you what are your proposals to I mean do you feel like just gathering the data and creating the checklist goes far enough to increase safety and protections for people in those situations creating another mechanism for a court order to direct the relinquishment of firearms that's the core of this right how you get at them is already set out in these giant treatises and rules and everything else I've already been here longer than I anticipated I just have some questions I have a couple other topic areas on that a little bit please real quickly I agree with you that the that mandating search warrants essentially can be problematic and I was just wondering if in order to clarify this more so for the committee could you provide any sort of real world examples or scenarios in which creating the sort of micro management could be problematic for officers on the road as well as public well I don't have a real world example of this because we haven't had this happen yet but they're I'm trying to think of a recent example of the statute that governs the mandarial vehicles that are described in statute as drones that's already proved to be limiting in some circumstances where I don't think you intended it to be limiting the the last firearm storage statute that was passed that allows us to store via VGS the nature of the language actually created what I gather was about a years worth of consternation between various administrative attorneys and a log jam that I had to break when I arrived at public safety to actually say just stop arguing about this and do it but they were right the statute was written in a way that didn't allow for it we couldn't operationalize it it got stuck in the language for lack of a better description so those are the two that I've run into most recently in my new role in public safety so so I'm wondering if from one way to another time while you're systematizing stuff is to look at where the system failed because there are a few cases of people who have been killed after they from the disorder and see where did the system fail, what can be done or put on the checklist right away so that we can all sort of sleep better while you're systematizing it maybe we're keeping somebody else from the tragedy was successful in doing that just so that again I think knowing that systematizing it is great but it still leaves unease I think for some of us about people that are just so vulnerable in the meantime to answer that question I would ask that you take testimony from Major Jonas or someone on the operational level who there's so much going on that I can't reasonably convey at all to you the operational improvements that are constantly in progress and measuring it I agree with you about it you measure it it becomes important but we have a number of law enforcement agencies that just ignore our forms so I have some thoughts on that that aren't quite ready for prime time but I'm happy to talk offline to begin with and then to begin to work on that I mean I'll say I will say this if you're going to be a government agency you need to you need to color within the lines some of it however so if that's happening and they're just ignoring it that's that's an operational problem that we need to address at the same time it goes back to my description of the complexity it's so complicated that I don't know how we reasonably expect that people are going to know all the things we've asked them to do I observed just yesterday there is no mechanism to communicate to law enforcement agencies what you've done at the conclusion of a session unless they are paying attention that just doesn't exist it's not like there's a letter that goes out from the legislature saying hey not for nothing but we just changed all this stuff that impacts you we don't have a system for that we're going to build one it's going to take a little while any citizens that we want to call a bubble right we've now made this illegal and unless it's newsworthy they don't have any way of knowing that thank you very much for that I do understand we can commit later but just to a little context around thinking about the testimony that Judge Bersinger a few days ago around the work that judiciary does at the end of session you know he and his division sit down and go through all of the work that we've done that relates to the judiciary the forms that need to be changed edited amended all of that happens so to get back to the date question about timing if we didn't allow that extra time all of the work that the judiciary does and that's excluding the work you guys have but all of that work that has to happen just gets it turns into a kerfuffle for lack of a better adjective and it gets done but it pressures the whole system and we hope that nothing gets lost in that conversion and I think that it's really critical especially when we're talking about designing new systems that allow the two integral agencies to work very seamlessly kind of has to be part of the design that functionality to make it work because otherwise like you said we're creating a monster and arms legs tail multiple legs and yet we're all concerned about our citizens' safety that's first, foremost, front, center and so I can just sense it's not a tension it's like holy crap everyone wants to make progress major donors two weeks ago came in and explained some of the operational work that she was doing around training the barracks around how to address the harm in that domestic violence reaction and she's only gotten through part of your agency and so you say to yourself what's going on with the rest of you know I mean and that's not to make light of it there's so much going on not to say that we shouldn't do something about it but I think we really need to be cognizant of that and try to be a little ahead of the curve as far as trying to make it more functional as we move forward and I'm not quite sure how we do that other than having these conversations and then being responsive to the needs of the people that are working with us not for us, with us because it is if we don't approach this together we're not in a good position so anyways I just integration we tend to respond to what you said we tend to try to make progress by adding things I would suggest that sometimes making progress is actually about simplifying things and taking things away you see that in contemporary software development you start out with a million lines of programming code and in order to make it work for all of us it ends up being half that it's actually stripping out functionality to make it useful for humans so we can only handle so much the return of service the checklist questions that we have do you have any input there's three questions that we have at this point are those the right questions are there additional questions are there problems with those questions I don't know if you have that page 10 I do and I hope I have the right page printed 5.1 is current yeah page 10 I don't know the value of which types of firearms were elinquished is but that's just a if we're trying to weather firearms are elinquished at this point you're looking at them the same it's possible they don't have a an older 5.1 345 PM yesterday you simplified it since you right other warrants being weather firearms were warrants being sought handling address that seems fine I know they're not to complicate matters I know there was some consternation over the question about whether probable cause existed as a point in time question and I haven't really wrapped my head around whether we should ask that we scrubbed that these look fine I'm going to try to get out of your way now but just additional fragments I did hear a committee question around potentially removing the immunity because a body of case law exists around this that doesn't work for us you have to have a specified immunity due respect to the attorneys in the room suing government has become a sport we will it will cost the government an enormous amount of money just to fight about this if you don't have the immunity components we might even cost this money to fight about it with the immunity components but you need that extra veil of protection to insulate the tax payers from the frivolity of the tort process today I'll get off that soapbox now could I just ask a clarifying question about that line page that for goodness I don't think it's highlighted it's not a shame it's page 12 line 9 so you're saying the removal of the word C's there is it I have some concerns over I would add I would leave C's in to be clear because we'll face arguments about well the seizure versus something else but I think most importantly I heard a question about that I just wanted to flag that it's important to leave the immunity components in or it will cost the tax payers money so it's drafted now it says a law enforcement agency shall be immune from civil or criminal liability for failing to learn of or locate a quieter arm while executing or do you think that's adequate I'll leave that to the attorneys on the adequacy I'm just flagging don't remove it because you think there's existing case law that's going to somehow cover it that's all I'm saying what is the added benefit of the word C's any attorneys in the room want to give a treatise on how often we argue about a civil word someone's going to argue that it was the more the more words in the immunity component in my opinion the better because someone's going to argue if it's not in there that this was it was the seizure that was the violation and therefore you owe us money and I want to be really clear if we've done something wrong that's part of the process we pay money it's not actually the way the system works it's organized extortion so I can't be any more blunt about that sorry I interrupted no it's okay the same question okay to move on and did you have a question thank you it just seems like to me like what I'm hearing is we're making this tougher and tougher for you to do your job we're already working on different ways to go and do this you know we're a little bit far behind further behind in what maybe we should be time to go and work through this and not convoluted enough so you can catch up to the time we need to do otherwise on the portions I've testified on that it's correct having the gish area have the ability to order relinquishment on a case by case basis may improve safety so but important to note there as well I'm going to touch the third rail here if someone has firearms one of the scenarios that was told to me yesterday evening was well what if they have 100 firearms and you have one police officer and you have to seize them at the time that you're serving this order how do you actually operationalize that and the mutual aid system it's going to take a variety of it'll have an impact to availability of folks in that area at that time but it can be done and what it brings up though is this age old discussion of is it if someone's got 100 firearms in their basement they know 100 other people that have 100 firearms in their basement if someone really wants to get a firearm they're going to go get it somewhere else so I just I don't want to start this debate but I do think it's I would be remiss if I didn't throw down the placeholder that the way to mitigate risk is to ensure that if someone poses a risk that we incapacitate them from being able to do bad things and there are other things happening in the building right now that diminish our ability to do that we can't hold the folks because of DV or something else taking their guns away is going to incrementally improve safety but it will not ensure safety there's so many other things that can be used as weapons and there's so many other ways to get them so it's just important to know again not to say that you can't make some progress with this bill or ensuring the safety of victims of domestic violence but be careful not to overemphasize how impactful this is going to be yeah I just feel like we're putting you and your law enforcement under so much scrutiny you can't do your job and it makes it more unsafe for you to do it you're you're just out there you're limited to what you can do and then it loads up the court system and then they're bogged up too that they can't do anything yeah there's a piece of that there's also it's complicated yeah I think I get it thank you I mentioned the focus on tracking I think is a good incremental step I think I've got everything else there was a question about the effect of one passage depending on what you put in there there's a training component to this you got to train 1100 plus people so you need time to do that if you make it effective on passage there will be errors instantaneously and there will be errors one month so those are is 1100 all law enforcement in the state? I think that's full time certified folks so it's 1100 plus but the folks that will be doing VV investigations that's I think the general universe so it's probably a little premature to ask you the timing as far as for the effect of what the data is until you see where we land but certainly we'll hear from folks as far as what how much time is needed and put that into effect I think I've missed six months of training time is probably reasonable because it won't again it depends on what's in there not just the law exists but now we have to try to figure out how to operationalize it and what the other legal implications are and how do you weave it into the existing criminal investigation construct and the criminal law construct and we've got to get the civil attorneys in to say alright well here's the guidance on how not to get sued doing this with or without an immunity statute it's not as easy as do this crazy it's indescribably complicated thanks I have a question on section 13 the report oh thank you I almost skipped that maybe I'll let you speak before I ask the questions the only thing that struck me as unusual was there's I sort of know why now from the conversation last night it added steps taken to assist in seizing and storing firearms I had spoken specifically to the storage issue and to our commitment that if all other systems fail for these kinds of cases that we will we'll find a way to store the guns I have a sense from the VPA on what the issue is relative to seizing it relates to the example that I gave you a moment ago if you're stuck at the door and there's a defendant in an APO or an APO that has a hundred guns in the basement how do you operationalize the seizure I guess I don't know what we would have to report on that because we have existing systems for mutual aid and how to call for assistance so as constructed I don't know what we would report relative to assisting people with the seizure so the question is I'm happy that you don't have to actually it looks like you don't have to prepare or report you're just presenting something it's just reporting to so that's a good step but I'm just is this information that's relatively works within your current resources accessible information to compile without a lot of hurdles or needed appropriations this the system to do it doesn't exist yet but we're we have our legal counsel working actively to draft the MOU for agencies if they need rollover some kind I've been here too long that's why we're throwing the same thing to me sorry I got distracted now we're going we were talking about the the we're building the system for rollover storage right now and it's essentially counting what we're doing that shouldn't be that hard so you're saying if we remove the word seizing you'd be able to you could leave it in there I don't know what we would report so I would suggest taking it out because I'm not sure what we absent other guidance I don't know what else we would do okay thank you good morning and for the record my name is Jeffrey Wallin with the Vermont Crime Information Center which is part of the Department of Public Safety I wanted to provide a brief update on some statistics that I had provided last week I was able to get some additional information based on the conversation and the request of the committee and I wanted to share I wanted to share that information this morning I was able to work with some staff from the ATF to get some additional information on firearms recovered some of it just came in this morning while I was sitting in the corner reviewing the information there I'd like to provide briefly some numbers about 2018 which is the most recent year we have complete data I think that makes it easier to wrap our heads for me at least to wrap my head around what we're talking about rather than doing with 35 months or most of a year or a quarter but a year seems to be for me the easiest way to wrap my arms around it in 2018 there were 41,500 total firearms checks conducted in Vermont by FBI of those checks 40,666 were completed within three days the three business days requirement which is 97.87% which means if you do the math there were 884 not completed in those three days there were 884 that were not completed within the three-day requirement once that three-day passes it's up to the FFL to decide whether or not they want to release the firearm or not it's a discretionary matter at that point of those that were preceded past the three days there were nine firearm retrievals issued by ATF in 2018 so of the 41,550 checks that were done there were a total of nine retrievals issued by the ATF which means one received a gun after the three-day requirement that they shouldn't have because they turned out to be ineligible and seven of those have been recovered to date the other two are still being actively pursued in my discussion with ATF they did pass along two additional things that were I think relevant nationally they see a very high rate of recovery the agent I spoke to at the ATF said the number most commonly used nationwide is approximately 98% recovery some of those are having quickly some of them may take some time but they have a approximately 98% success rate in recovery and that some agencies and entities it can take quite a while to get data there's been some discussion about individuals never receiving a determination one way or the other there can be sometimes where they simply cannot get information to validate whether someone is ultimately prohibited the example they gave was one state they're required to send by a US Postal Service any request for clarification and then the entity will mail back by US Postal Services any information they have obviously that takes time it can take more than three days for that information to move back and forth Vermont we don't do that we receive information directly and respond within one business day before that so I thought some of that additional information would just be helpful to put a scale around the numbers that we've been talking about and I was able to get that additional information from ATF specifically for Vermont a couple questions and maybe this is a follow-up with ATF if possible two questions one is of those that didn't have a retrieval order was there a final determination that they were fine or was it just that they ran out of time as soon as a time frame the IAS to work in I guess it's 90 days I'm not expecting that you have that but if it's possible since you have the contacts to see if that's something that they can take the other is if there was any information on how long it took between the start of that process and when there was an issue or an order to retrieve or information to send to the ATF to retrieve so with those nine how long after the three days so certainly I can check with them on that to see I had included that in my initial query I will follow up with them to see if they can provide that I will say to follow up with a comment the commissioner made about data modernization earlier one thing that came very clear is the data system that tracks the number of retrievals is the term they use is housed in West Virginia and they had to reach out to their Boston office for the actual recoveries because their data is kept in different systems so they had to have multiple people work on it to even tell us of the nine how many were retrieved so it speaks to that fracturization of data it's not just a Vermont issue it's a nationwide nationwide issue one thing they couldn't tell me regarding their first question was whether the FFL decided not to proceed they decided not to release the firearm they simply put back an air inventory and did not proceed it my guess is a fair number of incidents that went past three days or the individual may have ultimately been denied they simply never proceeded the firearm they never gave the individual the firearm in the first place so therefore there was no retrieval needed there are as I've dug into this there are so many ways to slice this data it's overwhelming again to kind of follow up with what the commissioner was mentioning earlier but I'm happy to ask if they have any either rough work and give specific under seven instances how long it took for those retrievals it's how long it took to determine that there should be retrievals what I think more interested in I mean both of those data points are important but I think it's how long did it take after the completion of the process to determine that so one thing I'll absolutely ask that may be given that we're talking about two different federal entities it may be somewhat challenging but I'll certainly pursue that one thing the ATF agent that I spoke to did share with me was that they find that 30 days is the up until 30 days you don't see a lot of additional data and after 30 days because of the manual nature that's when they start to see more data coming in that if the determination is not made in three days it's uncommon for it to be made in four or five it can take quite a while because they're manually running down data we're dealing with the postal service transactions etc and that is when they see a lot of additional data coming in as past the 30 day window she couldn't give me a number on that but just operationally that's their experience so you said 2018 was the year the most recent year we had so there was nine retrievals and seven were retrieved so out of those nine or the two in Vermont I don't know if there's any way to know were those people involved in any kind of crime with the rifles or the rifles or firearms and nationally is there any numbers on that I'm not aware I can inquire on the second I can they're not going to really be able to to provide that we have to actually do an investigation into the people to see whether or not and then try them if they committed any further crimes was the firearm they specifically received was involved that would be outside of my ability to investigate but somebody potentially potentially could potentially could I thought it would be kind of hard to get over with given that there were over 41,000 checks that it turned out they were nine retrievals ultimately issued with those 41,000 checks and seven have been recovered and they were very clear distressed that 2018 is not that long ago they may eventually recover one or both of those two additional firearms we may have covered it before what when there's a retrieval what's the process how's it start I guess I know eventually they're probably going to have contact with the person but absolutely the as I understand it and this isn't anything we're directly involved in so it's based on conversations with both FBI and ATF the FBI will contact and they have a very strong partnership with the ATF that this individual received a firearm that they shouldn't have here's the information here's all the contact information we have etc the FFL dealer or anything else they have the ATF then actually proceeds to retrieve that firearm one thing the ATF agent I did speak with where they sometimes see a challenge is the individual has moved so they don't have a good address and it can be hard to track the person down so there's no phone call email letter they physically as soon as they have the information they physically try to find them that's my understanding yes that's my understanding yes and there may be communication with the US Attorney for the jurisdiction because that individual is in possession of a prohibited item but that would be well outside just understand that from what they've shared with me any additional information I can thank you everyone for the time I appreciate it thank you very much thank you