 What's your schedule like Jay Diaz? Are you available a little later this morning? Good morning, Paul. Yeah, I am available until noon today. Okay, great I'm gonna go to Ben Our legislative council we asked a couple of questions and he checked with NTSL and maybe you could give us that information and also on the web page there is a document comparing Colorado and Vermont That Ben prepared for us, so maybe you could go over that then Yes, Senator Sears. Yeah, Ben Overgroski from the office of legislative council Yes, I did prepare the memo comparing as 254 with the Colorado law That's it's equivalent I also did some follow-up concerning Senator Bannings and Senator White's questions from last round and then I've done a lot of digging trying to find answers about the effect that such that this law may have on law enforcement agency insurance premiums with that one it's The Logistics of it is essentially that it's too soon to tell a lot of Insurance entities the National Conference of State legislators. It's actually wasn't even really on their radar yet to track But the NAIC I reached out to the New Mexico insurance regulators as well and in Colorado and Since these laws only passed in 2020 in Colorado and 2021 in New Mexico and they both have statutes and limitations of two and three years It's really they really haven't had time to see what the impact that lawsuits would have on insurance rates yet some states have done some sort of Task force research. I know Connecticut and Massachusetts is at that and I just received those documents Yesterday, so I'm still in the process of reviewing them, but from a cursory review It's still more of the same that it's just too soon to tell There are there is an insurance company in Colorado that is starting to offer Insurance policies to law enforcement officers For that would cover you know liability Those are twenty five thousand dollar policies. I think for payments of about $25 a month. However, that's not a broad-based policy yet and then it's relatively new itself so To be determined as far as the effect on insurance rates as far as senator bedding's question concerning the ability of a law enforcement agency to cross claim Against a law enforcement officer it's It's not explicitly excluded under this law. However, the law does mention That this is an individual and an individual traditionally means a natural person not necessarily an entity like a law enforcement agency would be so I believe that the language itself would preclude such an action against a Law enforcement agent or law enforcement officer. However, it's not explicitly excluded also such affirmative conduct in litigation by a law enforcement agency could be construed as a voluntary waiver of its own immunity and You know, that would be a strategic decision that a law enforcement agency would have to consider however, I view it as unlikely that an agency would Makes would undergo such affirmative conduct and expose itself to liability. However There are differences when it comes to municipal immunities compared to state-level immunities and that requires a bit more research on my part however, I think along the short of the the question is just that it's not explicitly excluded However, I believe that the use of the word individual in the statute would preclude an agency from from pursuing such an action and then Senator way to follow up to your question as far as who would Be on the who would be considered an employer for say an investigator at the DLC or at the Secretary of State and under the definition of Title 20 section 2351 a law enforcement Agencies an employer law enforcement officer and that definition includes those investigators So their respective agency would be the the person subject to or the the entity subject to indemnification So so it would be the Secretary of State would be the law enforcement agency in this case, correct At some point I have another question to throw out to you For understanding, but I don't know when the appropriate time is Senator Sears. I think after we hear from Wilder and Jay, I was hoping to have a little further discussion I just thought it would be good while we were waiting for Will to get back from the Health and Welfare Committee And I see she's on board now. So We will Go to will to thank you Ben And we'll we'll come back to you after we hear from Wilder and Jay Diaz Thank you Thank you So am I up senator Sears? You're up. Thank you For your record, my name is will the white And I'm testifying here today as a policy and training consultant with the Department of Public Safety I appreciate You're having me back There were some questions that were asked at the end of last session that We wanted to do some research on and provide some answers to I heard the tail end of legislative counsel's testimony about insurance and That information matches our own. We there is a insurance company called primus insurance company That has that is offering policies to Colorado officers based on their statute for $300 a year Also the fraternal order Increased their dues by $7 a month for law enforcement officers based on the increased liability From this From that Colorado statute But as I said last time the Colorado statute is not really instructive about what might happen in Vermont because the Colorado statute is much narrower than the statute that you have in front of you And interestingly when I was listening to the testimony this morning It seemed that most people were only testifying about one-third of this bill You know attorney slay Stefan Gillan and Mia Schultz were really talking about constitutional violations Attorney slay in particular talked exclusively about constitutional violations This bill that you have before you is much broader than constitutional violations It includes statutory violations and violations of common law And I think that's where People to the extent that they are expecting A a proliferation and litigation That is the reason for those concerns because you know currently In Vermont, you know, you can sue people you can sue law enforcement officers for violations of Some common law and they do have a state qualified immunity, which is a different test from the federal constitution what they apply in federal courts And what they apply particularly in section 1983 actions for example that Attorney slay talked about Discovery being cut off in federal courts because of a decision called Iqbal That case is Iqbal versus Ashcroft. It was decided by the u.s. Supreme Court in 2009 And it is a case that has that has has Applicability and federal courts, but has nothing to do with state courts In that case actually made it more difficult For people to sue Not because they they stiffen the requirement for qualified immunity. It's because they stiffen the requirement for pleading In in federal cases meaning you had to you had to say so much in your original complaint That if you didn't say the courts could just throw your case out and deny you an opportunity for Discovery so that's kind of in the weeds here But I wanted to make that distinction First that it only applies in federal cases and also that case really has to do with pleading Rather than qualified immunity And it's a more recent case as well 2009 case But the other thing I want to talk about When we think about these Additional ways that you can sue now without having qualified immunity is the types of cases That you're likely to see and why people think That we'll see a lot more cases than we see now You know now when you have a motorist stop right and Um Well, let's start with the easy case right now if an officer is told to go out and serve a warrant a That looks on its face to be valid And you go out and serve it And you find out later that the warrant wasn't valid But for reasons that you had no idea because it looked valid to you Currently in in the state of Vermont, you wouldn't be allowed to rely on the state qualified immunity, which you had a good faith belief that What you were doing was lawful because it looked lawful on On its face and that you didn't have any idea that you were violating anybody's rights by serving a facially valid warrant So qualified immunity in that case would mean that the person would not recover for you serving that facially valid warrant However, this Statue would get rid of qualified immunity in those types of cases. And so now when an officer is given a facially valid warrant If it turns out later that that what looked fine to that officer And it wasn't fine We find out that it wasn't valid that officer now is exposed to Liability because they don't have the good faith exception Um that would protect them And so when you have yes um Wilde, I'm just wondering my reading of the bill was that the only way an individual officer Could be personally liable is if their own law enforcement agency found them to have acted in bad faith So I I find it with your example It's hard for me to believe that there could be a situation where that would be the case Um, thank you for allowing me to be more clear because I'm not really talking about this from A police officer's personal liability and you're right. I'm talking about it in terms of taxpayers Because This has an indemnification Provision and so any judgment that's rendered is going to be paid by somebody and it's going to be paid by taxpayers So I'm thinking about this more from a policy perspective and and not so much from the You know, are we trying? You know, what what's going to be the liability of the police officer because you're right. I mean And to your point which you made last time about the way the bill is written You know, you can always protect the police officer from personal liability because the law enforcement agency could never Decide that the officer acted in bad faith. And in fact in colorado There was a a suburb outside of Denver that passed an ordinance that said we will never find our law enforcement Officers acted in bad faith That was a response to the bill. So, yeah, you can't insulate police officers from personal liability But you can't insulate the taxpayers or the public coffers um under this bill And so if you have something like, you know, the What's happening up in burlington somebody gives an order to law enforcement officers to shut down like sears camp that homeless encampment And they feel like okay. I've got a lawful order from, you know, the mayor to go shut this down And so they go do shut that down and they found out later that That wasn't that was a constitutional to do that the police officers or that law enforcement agency would be on the, you know, they would be paying for that For the damages that result from that on the current law Under excuse me under the new law under current law They would be entitled to the defense of qualified immunity because they thought they had received a lawful order To go exercise their law enforcement function Turns out later that no that was not a lawful order Without qualified immunity, they would be The law enforcement agency would have to pay a judgment in that and that on behalf of that law enforcement officer Well, that's kind of and and the only caveat I would say is They would have to be found in court liable But with that said, I see what you're saying. Yeah. No. Yeah, this all assumes that You know, there's been a court process where liability has been adjudicated So I I'm just trying to give you hey, this is how it happens under current law This how it would happen under your proposed s254 And the other thing I talked about was under, you know, current law I didn't talk about current law and that's why I'm going to do it now. I talked about how this bill would require a municipal municipality to pay judgments For officers who had been convicted of a crime so And that would have to come out of the public coffers because insurance doesn't cover Intentional torts. So the way that happens then what what happens currently If the officer is you know being threatened is being charged criminally or is convicted criminally And then there's a civil lawsuit that results What happens now is that you know, there's a conversation between the probably the municipality and the The person who's suing that officer for civil liabilities, they'll say hey look We don't have insurance coverage if you go to trial and get a verdict and This officer can't pay any any verdict and so why don't you take a little money now instead of Getting nothing and so those kinds of cases are settled that way Under this bill because the bill has an indemnification Uh clause for paying criminal judgment That kind of negotiation won't happen. The person who will have the upper hand is actually the Person representing the person who was harmed by that officer who committed the crime and so they'll be saying Something like pay us this much money because you have deep pockets and we're you know, we know that we can get it from somebody So that's another I think perhaps an unintended cost the other thing that this bill does that doesn't happen under the current The current law is It has this attorney's fees provision for You know statutory violations and common law violations, you know in the united states typically people bear their own attorney's fees Unless there is a you know specific statute that that allows the prevailing party to Um to be awarded attorneys fees The colorado statute is says they shall so it's mandatory in colorado that in those Constitutional violations people are entitled to attorneys fees In this statute It's discretionary. It's being left up to the judge. It says they may award attorneys fees to Deep prevailing party But what this expands is the types of cases that now qualify for attorneys fees where before it was only in institutional cases Now it's in a case that comes under statute or common law So if I were a savvy, you know, trial attorney Which I like to believe I used to be If I had a car accident case against a law enforcement officer I would bring it under this statute Rather than my typical negligence statutes because I have a chance of getting attorney's fees under this statute um, and then The unintended I think cost of that is, you know, when people when there are attorneys fee statutes You actually have a trial on attorney's fees So that is, you know, taking up kind of more court time In handling these cases I'll stop there to ask if there any questions. I I I know that Uh You've heard a lot of testimony. I I don't want to repeat Um What I said, I do think that there was some confusion presented by this morning's testimony because it was exclusively about constitutional law and not really about the whole of the statute and its impact Um, and and much of the I think the testimony was about the symbolic effect of of ending qualified immunity I won't say much, but I heard I heard testimony about the symbolic symbolic impact of ending qualified immunity And that's kind of my quarrel with this statute Is that it's symbolic only and I don't believe it will achieve achieve either accountability or uh more racial justice because Black people cannot have access to the ports Um, and I don't think litigation is a way to hold people accountable For for this reason think about this You have three years to file a lawsuit under this statute. And so if there was a bad actor um police officer They would still be on the job for three years before that lawsuit is even filed It takes about five years or even longer to get through a lawsuit And so that's eight years that this person that you think needs to be held accountable is still on the job with no judgment um Maybe if there's such a bad actor harming others Um, and and then at the end the case is likely settled with no admission of liability And so no one has learned anything and no one has been held accountable But we've still put out a lot of the taxpayers money in buying additional insurance premiums paying additional Attorney's fees paying additional costs for jury trials and additional times for court Trials I think the wiser course is to put this these additional resources into preventing these harms Rather than trying to litigate ourselves out of this which I do think is impossible I'll stop there. I appreciate you Actually, I do have a comment and a question The question the comment is i'm reading page Uh on page two of the bill section d um A court may award reasonable attorney fees and other litigant costs reasonably incurred In any action brought under this section in which the plaintiff substantially prevailed When a judgment is entered in favor of the defendant a court may award reasonable attorney fees and other litigation costs reasonably incurred to the defendant for the defendant for defending any claims the court finds frivolous This was an attempt to kind of balance that out. You didn't mention that part of the bill. I don't believe um I didn't mention that part of the bill because I feel like that's a dangerous part of the bill because oftentimes For the for defendants, you know, I mentioned that the prevailing party is entitled to attorneys fees and then a losing party would have to pay the other side attorneys fees and I I fear actually for Working class people who feel like they've been wronged By law enforcement action. They hire an attorney the attorney decides that this is worth taking They go to court they lose and then that That that that plaintiff is on the hook for attorneys fees um, I think And the attorney who's who's who's told the plaintiff that they think they have a worthy cause Is not on the hook for those attorneys fees Um, and so I mean that's another reason that I don't like this bill um, okay well Okay, that's you know, that's what makes it interesting senator white Thanks senator sears. Um, will the One of the questions that I had this morning was if the state was held to the same Standard as the that was um, the clearly established standard that was Decided by the supreme court in 1982. That was that was a question that I had And I thought the answer was We could We could set a different standard in legislation, but what I hear you saying is that there already Is a different standard for state qualified immunity. Am I misunderstanding something here? You're not misunderstanding. Um What I said, no, I mean so in I think in constitutional challenges under the vermont constitution the court does apply The the same kind of qualified immunity standard But you know, these are subjective determinations about whether something's clearly established Which is why you get such radically different decisions depending on what jurisdiction you're in Which is why we can say in vermont What people these egregious cases that get us all upset and angry we can say that is actually not happening in vermont because our courts are not applying Not using their discretion To apply clearly established in the most ridiculous ways that make us all angry What we see happening based on our analysis Is that it's a more balanced application in the state of vermont from our supreme court and a more balanced application of this This doctrine in the second circuit court of appeal Particularly in the last four years that three or four years that we looked at What but the thing what I said is like first for um, like for statutory violations and common law violations The standard is a little different because of course they're not looking about whether constitutional rights were violated. They're they're looking at whether Whether there was a clearly established Like kind of right under the the statute or a clearly established right under the Um common law whatever you're you're suing to and usually it just comes down to did you Yeah, this question of good faith um, did you have a you know a good faith belief That you weren't violating anybody's rights. Um, and it's an objective test It's not a subjective test other questions for will Thank you. Will do appreciate your thank you. I appreciate your time. You're welcome. Um, j. Diaz is our next witness Um, j you've written several memos to us. I'm trying to find them now Regarding the bill so Please feel free to go ahead. Yes. Well, thank you your honors. It's great to be with you again I like that your honors. Yeah Yeah, I thought you would You would you would it suits you? I wanted to say first, uh, thank you to you all for researching and really grappling with these weighty issues About this court made doctrine of qualified immunity You know, I know at first blush it can seem complicated as one of the witnesses this morning said it baffling Uh, that's not wrong But in the end qualified immunity is about one thing One simple thing privileging state employees and insurance companies over The rights violations of victims That's all it is It's privileging one group of one group over victims of rights violations And that's what s 254 seeks to correct s 254 is about leveling the plane nothing more now I want to talk about the follow-up letter. I wrote and it's really in reference to law enforcement's testimony Uh, and and I want to respond to some of and some of that was referenced This morning Uh, with will does uh testimony and you know, I'm sorry to say like with all the respect to to will the I don't know if it's because she hasn't practiced law in vermont or or just hasn't associated with the bar very much but Um, just a lot of what she says about about legal practice in vermont and about The how how rights are adjudicated here and what our courts are like just is not accurate based on my My 10 years of experience practicing law in this state So the first thing I'll say is Just about the colorado statue The law enforcement is saying that it's much narrower than than what's before you and that is simply false There are some differences in a couple of ways it is more expansive that the first being that as will the said Yes, it's it includes statutory rights and common law rights But that's something that section 1983 the federal civil rights statute Uh, similarly does around statutory rights. So if we're looking at You know, do we not want to include our anti-discrimination laws? As a part of this bill we want to allow qualified immunity When an officer violates our our anti-discrimination laws, I don't think so Do we want to include do we want to? Allow qualified immunity to apply if an officer steals from somebody Uh, that and you know in the scope of their employment I don't think so that would be a tort that would be under common law So I think that it's important that these things aren't included. There's a reason they're there And they are valuable and important for racial justice and for accountability purposes But the bill is also narrower in important respects with regard to attorney's fees As was just discussed The colorado bill demands attorney's fees that guarantees attorney's fees and only two prevailing parties that In our bill in s254 You must be a substantially prevailing party and attorney's fees are up to the court and as we've seen with the public records act The discretionary standard around attorney's fees in the public records act here in berlin Courts weren't providing attorney's fees courts are reluctant to do that And they have good reasons for doing that in some cases, but it's important that attorney's fees At least be accessible And that's why we have that provision in the bill I'll say again this The second part of the attorney's fees provision which would provide it to the defendants in the case of frivolous lawsuits Is an important provision That actually goes farther and does more for law enforcement than under current law There is no So I think it's important that we recognize that this bill is also protecting law enforcement officers the individual law enforcement officers in more ways Than are available to them under current law That includes the limit on liability which under current law is not available to them Under current law the state and municipalities do not have to indemnify them when they act in ways that are grossly negligent or or with local misconduct And there is no limit on their life their personal liability. So we would say that this bill actually Supports individual law enforcement officers by limiting their liability in those rare egregious cases I also want to talk about this idea that intentional torts are not covered By insurance that's just a myth that is not accurate The plenty of intentional torts are covered In insurance policies it can depend on the insurance policy, but they can be covered and and and are covered It's also important to recognize that we're when police officers are convicted of crimes, which as we all I think know is exceedingly rare circumstance Uh, I I can't think of any time in in Vermont where a police officer was convicted For a crime within the scope of their employment Uh in my 10 years being here Um Even when they are charged and convicted which as I said are rare occurrences They're typically charged with lesser crimes crimes that crimes that don't involve intent Like, you know, if it was a murder it would be more likely to be charged as manslaughter Or or would be played down to that if it was um, you know Beating somebody up. It would be simple assault. These are not intentional These are not crimes with specific intent. So they would not equate to intentional torts So this might just be a misunderstanding, but but I think it's important to recognize that the What what what was being talked about there is just simply not accurate and and somewhat misleading So I think, you know, there are several other pieces to talk about here that have been discussed this morning Is qualified immunity applied the same in Vermont as it is and in in the rest of the country The answer is unequivocally. Yes We have the same exact standards of clearly established law We have the same exact standards of there must be particularized to the facts of the case It is exactly the same Yes judges all over the country Can make different determinations based upon the case before them around qualified immunity But that is the problem we're trying to address The problem is that inconsistency the problem is that we don't have any kind of predictability when it comes to How a rights violation is going to be treated in any given court That is the problem here That we can fix this privileging of law enforcement and this inconsistency that Over victims and this inconsistency within the courts I think it's clear based on the testimony that law enforcement At least their representatives are just not understanding what this bill actually does That it can offer more protection to them in some ways and in most ways really isn't about law enforcement at all It's about correcting and injustice in the creating accountability mechanisms for Agencies to ensure that their officers are trained appropriately and supervised appropriately And ensure that there's trust in the judicial system Uh, particularly for people of color who as you heard today from Mia Schultz and from Stefan Gillum of the NAACP don't feel like it's even worth it for them to go to court Because they don't think they're going to get justice and in many circumstances. They're right. They have good reason to be It's important to recognize the impact that these that these legal doctrines That are only exist because the legislature has not acted the effect they have on communities of color and communities All over the state The last couple things I'll say quickly in response to some of the testimony we've heard Is that qualified immunity has nothing to do with frivolous lawsuits. It doesn't prevent them or encourage them It can't prevent it. But it does prevent victims with meritorious claims From accessing justice And actually under this bill more will be done to prevent frivolous lawsuits based on the attorney's fees provision I talked about then under current brahman law Lastly, it's important that we Let's make it clear that there's no reason to think that more civil or constitutional rights cases Against police officers will be brought in in state court That there will be any kind of flood or litigation The fact is the bar of this state is an honorable one We take our job seriously as officers of the court and I think we only want to bring cases that are meritorious that That are serious and that will lead to meaningful change in the system and for of course our client There is no reason to think that that cases that are unmentor unmeritorious will be brought And I really I think it's really important that we Just question whether that's what what that's going to be like that is not the brahman way We are not actually a very litigious state compared to others and I don't expect us to become more litigious Because we eliminate this one legal doctrine so, you know I just want to re-emphasize about how qualified immunity what it does Preventing access to justice it really leaves victims out in the cold and I think In the follow-up testimony I provided It's my follow-up in writing You know trying to respond to senator benning's questions about some of those cases. Those are vermont cases where the individuals Where where the courts found yes? This is the police violated your rights, but no You are not going to get any kind of justice The judgment will actually be entered against you and in one of those cases. I found out That person actually had to pay the costs for the defendants dependent police officers attorneys so I think there's a lot of injustice going around that needs to be correct You don't have to take my word for it, you know on on the fact that cases are are people are not bringing cases Uh, be when their rights are really violated because of qualified immunity you can look at some of the One of the concurring opinions of a second circuit justice We know calabresa who's you know renowned justice Up there with some of the The ones lawyers really look up to You know, he talked about it in an opinion talking about how you know, he asked why don't these cases go to court He said the reason is obvious people who Who want to bring a case either might not know they could bring a case know how to do it and even if they go to a lawyer The lawyer is going to tell them Uh, I you're right. You can sue if you want, but I can't take your case because the odds are too great That though the behavior was wrong. I'm quoting here Under current precedents you won't win And this is how it results. This is how people are prevented from accessing justice. He's talking about qualified immunity now Now law enforcement has not dealt with any of the issues that we're really focused on here the issues of access to justice What we should be providing to victims of rights violations And and I think that Again, the misstatements really lead me to believe that the law enforcement community just is not understanding what this bill does I think As david slay said removing qualified immunity in a lot of ways benefits law enforcement and that scrutiny frankly is a good thing It makes us all better. That's why we have transparency laws. That's why we have rights That's why we can go to court. But in this instance in these instances That door that those courthouse doors get slammed shut far too often on people who deserve justice As stefan and and me has said this morning Not only will we be able to ensure justice for victims, but we will improve our cultural accountability We will ensure that people will be able to come forward and Frankly, we'll ensure that it's not a waste of their time To do so because when we waste people's time people who have been who've had their rights violated Who have had access to force used against them when we waste their time by going to court And and then they Or we investigate and then they we say that you can't do it or We can't take the case because of qualified immunity Or even if the case gets through a little bit and the qualified immunity ends the case Even though the court finds their rights were violated It's it's it not only wasted their time it re traumatizes them and that is not the experience We want our clients to have that is not the experience anyone who's been who's had their rights violated should have to go through So i'll close with you know, this is again about leveling the playing field making sure victims have their day in court a fair shot Which is what they don't have right now and this is what vermonthers want as I said last time I was here Almost 75 of vermonters Believe that qualified immunity should be eliminated for law enforcement. We'll stop Thank you A j A quick question No, I know there was a case There are probably dozens of them, but that you've been involved with Where the community settled long before you got to court Or before you got to court. Obviously the threat of going to court is there In those cases Um Would this make this bill law make any difference? This bill would make an enormous difference. It would mean that we would Be able to tell people you're going to have your rights adjudicated and it's going to be easy for you Uh, this bill would ensure that attorneys use were possible that um, that would that cases wouldn't go on and Uh And that and even if you win on the legal issue you lose on qualified immunity and therefore get no attorneys fees no judgment No compensation for the victims injuries Again, we don't want to waste people's time and that's what we'd be doing if we brought Certain cases right now in state because of qualified immunity Even though we feel that their rights were violated and we want to fight for those rights Um, that's the that's the business the ACLU is in of course So, you know, it's happened in a number of situations and we have to tell people, you know You know, we're sorry for what happened to you Unfortunately, there's not Nothing we can do about the current state of the law until it changes. We often tell them to to call you folks in those instances One of the things that I feel bad about you don't need to enter this If you don't want to but one of the things I feel bad about is after I Announced that I was going to be a sponsor of this bill um A lot of people felt like I had uh betrayed law enforcement that I had caved to the left wing of the party that I was Um, you know betraying I you know law enforcement that it was all about That and I feel badly about that I I truly do because it was not my intent To bring down law enforcement. Actually it was to try to make sure that people got justice and also to um try to Make some sense out of a law that I frankly doesn't make a lot of sense That was done by the court. So whatever happens here Whether the bill gets out of this committee whether the bill gets changed dramatically, which most bills do um This is the first time in 50 years or whatever since The 1960s when the supreme court came up with the idea of qualified immunity It's been discussed by the legislature and not in the courts so for that I'm grateful to all the witnesses and Um, if you'd like to comment today feel free at any other committee member's point too Thank you senator. Yeah, I just want to say The ACLU is not an anti-police organization. We also have represented police like david slay We've represented police officers numerous times here in vermont and around the country Uh, we want to increase trust between law enforcement and the communities they serve Because those communities they serve are the communities that we serve and we hear from them We know that there's a problem with trust and we know that not just in law enforcement But in the justice system as a whole That's what that's part of what this bill seeks to achieve If people can have more faith in the person in the justice system, we as a society will be more just Thank you senator white Thanks. Um, so jay, I just have a couple questions for you and I just and I don't I'm just trying to figure this out um So I know that when I asked you before about um, why just single out police officers here The the answer was pretty obvious because they have more authority and power Over us than most people but if qualified immunity is Is a bad legal concept? Why don't we just get rid of it for Everybody I mean, I do we know of any cases? A department of corrections um person Violated somebody's rights and got off the bait or a teacher or a legislator Or the sergeant at arms as opposed to the capital police officer, I mean Why would we not Just get rid of it if it's such a bad legal concept Do you feel you vermont Doesn't feel strongly about about That question You know if if the committee if that's something the committee wants to do we're happy to take a look at it And and think through it more deeply. I think we're open to it Because we do believe the doctrine is problematic through and through That being said as I said last time I think that law enforcement does hold a special place in our in our society and and You know, there is and there are important reasons to hold them to a higher standard Than most other state employees Our judges covered under qualified immunity also since they're a state employee and other other People in the judiciary system and people outside. Who who all is covered by You'll be happy to hear that uh judges Uh legislators and I think your counsel can probably advise you on this judges legislators like yourselves prosecutors have absolute immunity So they are you are immune from anything you do in the course of of your In your role as legislators or in judges role as judges. So there it's not qualified. It's absolute Is that um j is that the case in the in the if if the action is corrupt So so you you are Uh You are acting in a criminal manner a conspiracy. Are you still covered in that case? I don't know the answer to that offhand, but the example I like to use around absolute immunity is there's there was a case where a judge Um, this I don't believe this this isn't from vermont, but uh a judge uh got off the bench Uh went to a you know one of the parties That were in front of him and punched that person in the mouth The judge was given absolute immunity was immune from suit Based upon that action it's In a lot of circumstances. It's pretty ironclad I thought only diplomats were had absolute immunity but I guess Wow, I had no idea. I thought Well, but it it can't be our shield and silver and so many others wouldn't have been convicted and served by men's field You know, it's up to the judge right to decide whether they It's things in the course of your of your role Well, but shield and silver is accused of You know passing laws to benefit um his clients And his law firm Using his role to shift clients to his law high price clients to his law Losing his role as speaker Green only reason I bring that I mean I just read as a bitch. We're so So I'm not I'm not sure There are limits to that if you um, that was criminal not civil. I don't know. Maybe there is no way to civil regress Yeah, we could be criminally charged but not have a civil suit against us. So if I bribe somebody or if I um Careful If I take money for a vote or whatever I can be charged criminally under the Vermont statutes, but I couldn't be sued Civilly, is that the way I understand this? I think Ben is shaking his head and so is Jay. So, okay Thank you. Um Any other questions for Jay? I know we'll we'll go back to bad men. Um We have a few minutes to Thank you Jay for the conversation And I I thank all the This morning. Um, I found it Uh extremely helpful And so I appreciate it Ben, um I guess I'm serious. Yeah, the your memo Now I gotta find it because I just threw it somewhere else Ah, here it is Your memo talks a little bit about and we've talked a little bit today about the differences between Colorado and Vermont Um Can you kind of cover that for us? Sure I'm happy I'm happy to compare the two the bill here and the law as well and I can also You know attempt to clarify some of the questions as far as immunity and everything But I can take those and turn after the review of the of the two laws of the bill and the law um so s 254 As has been said does differ but is similar to the colorado law um essentially What that law did it went to effect in june 19th 2020 And it was entitled a civil action for deprivation of rights. So it's title the titles are similar and specifically S 254 does create a broader basis under which an individual can bring an action against a law enforcement officer as we have talked about constitutional violations statutory violations and common law violations The call a lot Colorado law however outlines Some other differences and those include the effect of a law enforcement officer's criminal conviction on indefinification by law enforcement agency Uh in addition to a process for a law enforcement agency and make a good faith determination About the law enforcement officer's conduct um S 254 does not go into that level of detail From my research it does appear that some of these were implemented sort of after a year of being into effect uh specifically Um It was mentioned in previous testimony that there was this town that sort of preemptively Said that it would never consider A law law enforcement officer to have acted in bad faith a recent revision to the Colorado law um specifically prohibits it says that they cannot Or rather an employer shall not preemptively determine whether a peace officer their definition of a law enforcement officer Acted in good faith before such action in question has occurred uh, so while I wasn't uh aware of that specific instance of ha Happening I do believe that this later revision to the law is probably a response to that um however Going into more detail as far as the major substantive revisions and there are Differences as to form in language the s 254 incorporates language that's more common to Vermont law uh And obviously the cross references to Vermont statutes are are different than the cross references to similar statutes in colorado But the main major substantive difference has been talked about a lot Are are the broader is the broader basis under which a claim could be brought? um The colorado law only permits actions that are based on violations of quote any individual rights that create binding obligations on government actors secured by the bill of rights article two of the colorado state constitution So for example one such right and corresponding obligation that's contained in that article is colorado search and seizure provision s 254 Does something similar to that? You know an individual may bring a civil action for an alleged violation of vermont's constitutional rights like our own search and seizure article however, the difference is The the ability to bring an action for a common law tort like negligence Of a law enforcement officer or when a statute confers a substantive right So those would be things that could be like an excessive use of the force which we we have set statutory standards around or the use of electronic recordings during custodial interrogation and the rates associated with that or drone surveillance And the the warrant and other exigenancy requirements by law enforcement and those so those are other statutory violations that could be brought If an individual officer had a role in that in this case um, so again broader basis for an action to be brought under this section Then just the constitutional violations that colorado has And can you give a couple examples of common law? What would be under I I understand statutory because I that would be in the green books Like the use of drones But give me a couple examples of common law because i'm not sure i'm not an attorney So I have no idea what that means really Yeah, of course and those would be what previous testimony said, you know intentional torts, which would be assault battery Potentially false imprisonment Or negligence Which would be you know law enforcement officer has a duty to act in a certain way He breached that duty and then there was a damage damage that resulted from that So those would be those common law torts as opposed to statutory rights that Could be that would be swept in by this statute By this bill so I have in one of my notes somewhere here. I have written down defamation of character I have no idea why I wrote that down, but I wrote it down under common law Yeah, that that is a common law tort as well um And defamation can you know is essentially libelous or sat slanderous You know statements, uh that are untrue truth is always offense to defamation Um, but yes, technically if uh, I suppose it's conceivable that if law enforcement officer in the course of their duties Made a public statement that defamed someone and that somehow caused injury There could be redressed there um, but but again, it has to be within the course of or scope of duty Of the law enforcement officer, but it wouldn't have to cause physical injury It says injury or damage and so that could be damaged to one's reputation correct, okay um Going forward on the differences between the two The scope of immunity that's waived is also different in s254 compared to the colorado law colorado does explicitly exclude qualified immunity the way s254 is written if you look at subsection c of uh proposed 5607 It talks about common law doctrines of immunity Uh as a defense to liability so that would include what we were talking about earlier both absolute immunity and qualified immunity And you know, we're kind of getting into the legal weeds on these concepts But they're important to understand and really in general the concept of official immunity and absolute immunity and qualified immunity is to rot as a derivative of that concept protects government officials from civil liability Um, and it generally defeats lawsuits at their outset Um, absolute immunity is generally afforded to judges legislators and the highest executive officials where the acts complained of are performed within the respective authorities and it applies to all acts performed within the um Individuals authority regardless of malicious motive aren't kept so it truly is an absolute immunity as opposed to qualified Which applies to lower level government officials employees and agents like law enforcement officers um Immunity extends to these individuals when they perform discretionary acts in good faith during the course of their employment And within the scope of authority So that's the qualification Of that that immunity concept Um and good faith as we've talked about exists where an officials acts did not violate clearly established rights Of what you reason unofficial reasonably would have known So in in the bill here It covers both absolute and qualified. So this is conceivable. It's conceivable that if Say the commissioner of public safety If they are a law enforcement officer by definition and they engage in something within the scope of their duties um And it causes injury Uh, and the claim is brought under this bill. It's conceivable that they would be held civilly liable Can I ask it? I'll go ahead senator white and I'll ask question But if but if the commissioner is not a law enforcement agency He or she would be covered by the absolute Immunity, right? This is only if you are a law enforcement officer Those duties are under the color law I'm looking at page three of the bill section e and it says, um The only time This is i'm paraphrasing now the only time the officer would be liable And not being done the fight by the law enforcement agency for a judgment up to 25 000 or five percent Whichever is less Is when the law enforcement agency determines that the officer did not act in good faith and under reasonable belief the action was lawful um boulder white used the example of the homeless encampment in burlington and the and the mayor orders it to be um taken down and the police go and do that And then the police officer would be liable and under this doesn't that Take away that liability since they operated in good faith and they believe that the Mayor's order was lie was lost Well You know a every situation is fact-dependent. So I have to qualify it by that but in in that situation You know while this gets rid of qualified immunity is a defense It doesn't get rid of traditional affirmative defenses that are used in civil litigation So for instance, there is the concept of a good faith defense um that could potentially be pled um by a law enforcement officer in in that circumstance, so You know and again this concept of qualified immunity and what is considered clearly established law You know, it really is It good faith clearly established law is within that good faith analysis um and really the analysis doesn't even end there. It's um They're acting within the scope of their authority. They're acting in good faith and their actions are discretionary Or as opposed to ministerial. So a lot of times the courts don't even get to that next step Because they can't get past the clearly established law and step in the analysis um, so while qualified immunity would not be available and good faith is part of that affirm the affirmative defense of good faith could conceivably be used by the officer in civil litigation. So I don't I don't think under this law that it it gets rid of that defense From that concept as opposed to the qualified immunity concept if that answers your question center serious very helpful center Ben thank you other questions for ben or comments I I hate to be really thick here, but I need more explanation of lines 12 through 17 on page two because I really do not understand What that means at all and I know you just went through that it excludes I really don't understand what that is saying at all it says that the um an action pursuant to this section meaning of a suit filed right is not subject to What does that mean? It means that they can't On what page are you referring to center winds? Page two lines 12 through 17 And if if if everybody else understands this I can I can take this offline and talk to ben because I Really don't understand what it's saying at all. So Just just let me know if I should take it offline Well, I think it's a valid question. No I think that's a good question. So go ahead and so as essentially It's it's a little bit illegal ease. I'll I'll grant you that senator white So but it basically says that these are not at play in this Bill So when you bring an action on this section, you can't use the common law doctrines of immunity as a defense You can't use statutory immunities and statutory limitations of liability damages or attorney's fees The provisions of chapter 189, which is the vermont tort claims act that doesn't apply here And then the provisions of 24 vsa chapter 33 sub sub chapter four Which is the municipal equivalent of the vermont tort claims act So those provisions don't come at play when an action is brought under This section I thought one and two are what we're dealing with here Well, we are but these are also additional exclusions. Um, for instance under the vermont tort claims act Acts can only be brought against the state not against individuals and and similarly with the municipal Equivalent so it's just saying that these can't be used to sort of supersede The provisions contained in this bill or law if it goes into effect I get three and four. I don't get one and two how that applies because I thought that's what we were saying is you couldn't So what so what one and two says is that you cannot use the Doctrine of immunity either qualified or absolute immunity as a defense Correct. Okay Okay And section in subdivision two and that goes into statutory Immunities and limitations on liability damages or attorney's fees because there are other statutes that sometimes dictate how much uh, whether attorney's fees are applied or limitations on Liability and damage amounts. So it's saying that those are excluded from actions brought under this as well um Joe he's not looking at you. So, you know, he's not I understand. I'm sorry. I was looking at the bill. Go ahead, Joe So ben tell me what are The statutory immunities and limitations That we are now eliminating under this bill So for instance, we obviously we've obviously created Statutes that have provided specific immunities and limitations I'm really interested in knowing what Specific pieces of legislation we are sweeping away By implementing this bill so specifically these For instance insurance a lot of times the state waves or municipality waves and there are statutes on this. It's uh You know 24 vsa 304 1092 And then 20 29 vsa 1403 those are Statutes that talk about insurance coverage and there's this concept and it's actually written in in statute as well that the state and municipality can wave Its immunity To the extent of its insurance coverage. So that's saying in this case those wouldn't apply here And the provisions that we're talking about as far as indemnification and insurance and payment those come into play As far as what would apply in this in this potential statute? so this statute does not deal with the Government entities That are being sued it deals with the individual officer Mm-hmm. Are there any statutes that surround individual officers for protection purposes? That this statement is eliminated Well, traditionally and under under statute the state or municipality Um essentially represents Uh claims against individuals within its jurisdiction So that would not be happening now with this bill well Correct and this what what it's saying is that rather than the state having to or a municipality having to come in and represent A law enforcement officer or a state police officer They themselves have to defend themselves or pursuant to the the contours of this bill But they don't have to pay Except for $25,000 If they act in bad faith so while they have to hire their own lawyer to defend them If they're found to be liable then the agency would pay Correct that that's that's the limitation on on liability for the officers that $25,000 or 5% whichever is less But they have to hire their own attorney and Yes What if you took that out? Okay No, I mean what would happen? Well, if you if you took that out then Traditional the traditional representation are uh, you know, it's it's you could also call it kind of a form of indemnification When the state or municipalities providing an attorney They would still be able to do that if you were to take that permission out Yeah, I mean, I don't mean take out the I meant just take out the 5 or 25 000 so that the police officer Um, obviously there are cases where police officers, you know, the chauvin the george floyd the police officer there Obviously had the high result on defense team. So, you know, there are cases that go beyond Um, so I'm just curious of what the impact would be So the individual police officer You know, you don't have that requirement whether it was good faith or reasonable belief you I mean They sue the the police officer, but the town the town of bennington or St. Albans or whatever is indemnifying Is providing the insurance as it is today Mm-hmm. So if you were to take out the five percent or 25 000, I mean it would essentially indemnify them completely if Well, but they still be held responsible wonder I mean when they eliminated to I'm not sure what In reality what that does Well, so if you were to eliminate The personal liability on the officer to 25 000 of five percent if essentially they act in bad faith Then the law enforcement agency would step in and cover them completely so they can be found civilly liable But I heard from several town managers that that's what they were going to do Okay, well that's and that's ultimately up to The municipality or the law enforcement agency to make that determination. They don't make the determination then they can completely cover any liability that is attached to the officer And and and again if you look at section subsection f And and senator white I believe this is a concern that you had raised earlier The the effect of that is that no matter what if that person the law enforcement officer can't make the payment Then either the law enforcement agency or the insurer Will cover that payment, right? I just got this feeling that this this is placed A lot of pressure on as law enforcement reads it now there was you know And i'm not sure that this does I mean I I suppose it could be You know 2,500 not 25,000 or it could have been a hundred thousand. I mean, I i'm not sure And the amount the amount itself is really a policy consideration um and and this These amounts were inspired by the colorado law, right? I understand that that's you know, I mean we When we were drafting this and our discussions with you it was mainly You know colorado and how they did it. So I i'm just i'm just questioning whether or not that would If that's necessary what it accomplishes well Really, I mean and this is sort of the I guess the evolution of a court case, right? Is that you have the people that are found liable and then you have this sort of separate piece about who pays and so if we don't really If it's determined that who actually pays isn't as important as who is held responsible then You can feel free to change the amounts or eliminate that aspect of the law altogether I think I think the import of that is to ensure that A plaintiff who sues and is successful in in their lawsuit can collect the money from somebody Yeah, and I and I'm not changing that I'm I'm just There's something What's I guess what's missing here is I just read in the newspaper. I didn't want to bring it up. Well David slave was testifying because he's representing one of the troopers But three troopers were have been sued I believe for five million each In a case in shaftsbury so Obviously That's way above this But I don't know what qualified immunity will do or won't do for any of that but They're being sued so they're they're facing that and I'm assuming that since David slays representing One of them. It's it's you know part of his legal business But I'm questioning What it does To require each trooper each police officer law enforcement officer To be responsible for up to $25,000 Well, I think that's sort of a level personal accountability But again, that's sort of a policy decision when if that's really where we want to go with the bill Yeah, I don't know. I'm just Trying to understand What it accomplishes. Yeah It seems to me that That if if it's found that the officer acted in bad faith Then they ought to bear some responsibility. I don't know what the amount is But if if it's found that they acted in I'm not as concerned about this because if if if they're found to have acted in bad faith And via really violated intentionally Then then they should be held responsible for that and my guess is that they would be held responsible by the certifying agency and their their town They'd probably lose their job But in the meantime the town is stuck for To pay For somebody who acted in bad faith and that's That's the only time that they wouldn't be a hundred percent indemnified So I have less concerns about that than Still about lines 13 and 14. I still don't understand. Well it being noontime. I think we should probably Call it a day