 Good morning. This is Senate Judiciary. This is 222 22 and it's a Tuesday morning And it's Washington's birthday. He'd be two hundred and ninety years old today Anyway We're taking up first s 228 and act relating to prohibiting no knock warrants and somebody's at the door and I need to go check on that So See Marley running around in the background. Yeah You know who runs that household The the only thing the only two things I like about zoom is that we don't have to wear grown-up pants And we can see everybody's pets Yeah, exactly Yeah, I I like it when people that you think of as very Serious people all the sudden you see them on zoom and their cat walks in front and they're petting the cat and Senator campion had somebody deliver a cherry pie So they were supposed to bring it right into you. Yeah. Well Anyhow, that's because your mother always baited them on this day. Yes, that's true Mm-hmm. I think it was senator camp. Maybe it was food senator white. I think it did Well, thank you to whomever sent the cherry pie Better than cutting down trees today It is yeah, I've got enough whims in the yard to pick up once Once the yard dries out. I don't need to chop any trees down Well, senator campion made the arrangements on who baked it. So I have no idea how good it is Oh Okay. Well, thank you very much senator white Yes, my mother always did make a cherry pie on washington's birthday And we had log cabin syrup on lincoln's birthday, but Get log cabin anymore Okay Back to rule 41 Has to do with no knock warrants and the committee was going to have a discussion about the bill s 228 which would Rehibit or at least Not prohibit but require that No knock warrants have certain provisions and Eric would you remind us a little bit about no knock The issue It seemed that that's More of an issue when there's an extra in circumstance Is that correct that somebody hears a gunshot a gunshot and they would go in without a warrant or without Without announcing I think there's a variety of circumstances that it could come up under senator sears and it's a matter of whether Judicial officer would issue a warrant that permitted Permitted the warrant to be executed without knocking and announcing. So it could be an exigent circumstance like you just described If you Think about the Institutional basis of the knock and announce requirement, which is the fourth amendment So generally speaking the fourth amendment requires knocking and announcing Uh, the officer's presence before the officer executes the warrant or in other words goes inside incidents And either looks for the property or the person that that the warrant is described that they should be looking for But there are some exceptions to that under the constitution. For example, if There's a belief that The evidence might be destroyed or if that the officer or somebody else might be harmed if they're if they did knock and announce or There might be some other I think the way the court has phrased it is I'll just read that language for you now just so It's helpful to actually hear what the court said in this but and this is the The second circuit in the united states via cost the case articulated Some of the exemptions as did the united states supreme court of mitches v. Wisconsin. So The two that I just mentioned the exceptions to the no knock requirement would be when the officer's reasonably fear violence may result if they were to announce their presence Or when officers have reasonably evidence may be sure may be destroyed if they were to provide notice Or when an announcement by the officers would be futile As may occur when the circumstances indicate that the inhabitants are well aware of the officer's presence Uh The u.s supreme court sort of expanded on on that a little bit and said that um that it's really a a particular decision in other words um The reasonableness Is the key factor whether the police decision not to knock and announce in a particular case is reasonable And it's the duty of the court confronted with the question to determine whether the facts and circumstances Of the particular entry justified dispensing with the knock and announce requirement so Sort of their general statement. This is in the richards v wisconsin case is that in order to justify a no knock entry The police must have a reasonable suspicion that Knocking and announcing their presence under the particular circumstances would be dangerous or futile Or that it would inhibit the effective investigation of the crime by for example allowing the destruction of evidence So that kind of gives you a sense of what the uh the constitutional exceptions are and um And you can sort of compare that to what the exceptions are in s 228 So the in other words the exceptions are more broad as I just read them and s 228 The the exception that's permitted for uh, there's a general prohibition on the use of no knock warrants Unless the affidavit submitted by the officer Demonstrates to the satisfaction of the court that identifying the presence of the officer is likely to create an imminent threat Uh of serious bodily harm to the officer or somebody else. So you have the harm exception But the other ones are not there. So the this prohibition is broader than the constitutional prohibition. So that's the the nutshell of it um but as you said senator sears also the uh the uh Rule that governs the issuance and execution of warrants is rule 41 of the remand rules of criminal procedure um That provides a lot of guidance as well as to the procedures that have to be followed what uh The law enforcement officer has to demonstrate to the court to the judicial officer what the judicial officer has to find Before they issue the warrant. So all of that applies as well. It sort of creates a a regulatory process so to speak of um What evidence must be presented and what the court has to find before before Issues the warrant and that sort of overlays everything because the court the judicial officer has to has to make that finding That would help we could I submitted the rule to the language of the rule It's on the web page. I could pull it up. We could look at it a little bit if you Yeah, that might help Yeah, yeah, the one thing I heard from matt valeria was that um objective reasonable belief um Yeah and um Passing the bill can be a some symbolic gesture That they're Mike shirling said they're extremely rare and john camble agreed with them But anyway, yeah, why don't you pull up rule 41 and we can See if that's Sure Sounds good. Let me uh while he's doing that I will Put up the senator whites pie if you can see nice Yeah Thank you so much The country club made it That's a campion deal No, he didn't make it. No. No the country club. Yeah. Oh, yeah. Well, that's Rich people go there And I go to who's it falls You know No, I like god, I forget we're on zoom sometimes Yeah Is everyone able to see my screen? Yeah, okay, great And generally a state's Approves the warrants. Is that the general practice? I'm looking at a I I missed it. I didn't hear that. Sorry senators. Here's Generally the state's attorney asked for the warrant not the police officer even though they can Uh, yeah, I think that's right. Although I think that sometimes the officer does as well But yeah, I think that's the general process. Yep. Yeah, I know in baddington county. It has to go through the well at least the Last time I checked it had to go through the state's attorney right That was her policy Right and it does have to be Coming from the law enforcement, whether it's the officer or the attorney To the court and the court has to make a probable cause finding So if we skip just for a second down to d it's kind of helpful to look at d and then go back up to b But if you look at d1 Probable cause so Judicial officer shall issue the warrant if the officer is satisfied There's probable cause to believe the grounds for the application exist Now it's based upon the affidavit or affidavits or sworn testimony So the law enforcement officer has to provide the sworn affidavit for other sworn testimony In support of their application for warrant. You see the next sentence finding a probable cause shall be based upon substantial evidence So it has to be something more than For example, that would suggest more likely than not which is uh substantial suggests something more than that But it may be hearsay and provided there's a substantial basis for believing the source of the hearsay to be credible and a factual basis for the information furnace show The standard is probable cause based upon substantial evidence. So the obvious question is well, okay Well probable cause of what and that Sort of brings us back to b and that tells you what it is that Maybe search for or Saw it on the basis of the warrant of through the warrant on the basis of probable cause so Number one they can the warrant can be issued to search for and seize any evidence of the commission of a criminal offense So again, that would be what the probable cause would Be required to show in that circumstance probable cause that there's evidence of the commission of a crime Or a contraband that's b which is Property that is by definition illegal legal under all circumstances Contraband fruits of a crime or things otherwise criminally possessed again tying it that into the probable cause standard It has to be probable cause substantial evidence that something of that nature would be found Uh weapons or other things by which a crime has been committed. So that's Something through which a crime has been committed D person who's been kidnapped or unlawfully restrained Uh and then move on to two it could also be to search for a person The rest is authorized by law. So someone who's subject to arrest The the search warrant could be to search for that person So they again there'd have to be substantial evidence that there is probable cause that the person is going to be in the location and Is uh Sorry Someone think I think that seems to be where the trouble arises on many of these cases Number two No where it's um search for a person whose arrest has been authorized You know in other cases in other states that seems to be You know going in with a no-knock warrant you know well and also people who The police believe they've been authorized but are mistaking for someone else right That's that seems like a common thread through a bunch of them Yeah Yeah, the uh it seems to that that factor has been I think come up a lot. Um Three and four you see there's also A method by which the warrant can seek to monitor conversations for which one party has consented In order to obtain evidence of the commission of the crime um and number four What does one party mean? Um, does it mean law enforcement or does it mean like the wife? That's a good question. I'm not entirely sure centers. There's I know vermont is a one party consent state So the consent of one party is required Uh, but I'm not sure. I don't I can't I don't believe you but if you mean law enforcement being The person who is searching for the warrant was applying for the warrant. I should say no, it has to be a party to the conversation Okay, so it could be a confidential employment or something like that I thought it was also one party where they were going to search. I thought that's what it was But we can get this explanation of that to monitor conversation Right that that's specifically to to Yeah Like almost a wiretap situation. You might be described. Yeah Okay And there's also specific language number four for installing a tracking device That's specifically provided for but those are specific circumstances. Yeah, um And we went over the denial of the warrant language already that Or sorry went over probably didn't go over this with this also you'll see that the Denial would be based on if you look at the second line down would be based on lack of probable cause So the court could determine That there does not sufficient probable cause to support the issuance of the warrant and the application could be denied on that basis in fact It would have to be denied if the court finds there's a lack of probable cause And there's a filing system as well that requires the the documents to be filed Whether it's granted or denied, but that's the denial provision So we went through the the probable cause paragraph here that has to be based upon substantial evidence You'll see some other specifics about what the record that's sorry what the warrant has to contain there has to be A particular Statements about the property that's the subject of the search and Or describing the place or the person to be searched or conversations to be monitored Whatever it may be there has to be particularity In the application to describe What it is that is being sought in the warrant Warrant has to the request has to be made subdivision three in the presence of the of the judicial officer in the presence of the judge or the magistrate The officer must Provide an affidavit or some other sworn testimony in support of the word application Uh the requesting a warrant by reliable electronic means I I think uh I recall I've been here long enough. I remember that used to say telephonic means if I remember right when it was first added And now the technology has advanced Yeah Yeah, I really would that would I remember going my first term Trying to get it by facts That's right warrant by facts. Yeah One of the first bills I introduced Right Yeah, well this evolution of this rule is kind of parallel to the evolution of technology Very rare anybody has a fax machine anymore Right So, yeah that uh warrants can be requested that way as well Now the contents of the warrant in other words what has to be in it um has to be uh directed to the law enforcement officer to to And command the officer to search the person or place named For the property or other objects specified and sees it if appropriate Now you see a couple of time limits there under 5 a 1 Uh generally has to be served uh within 10 days So we have a 10 day time limit on the warrant And it has to be generally be executed between 6 in the morning and 10 o'clock at night unless the the court finds for reasonable cause Uh that execution could be done at another time. So the general standard is 6 a.m to 10 p.m Uh, but if there's a reasonable cause to authorize it to be executed at another time then that could be provided for Have have things like reasonable cause and they standard up above of substantial Um evidence or whatever that was above have those been defined usually we think of clear and convincing probable cause Those things are well defined They're specifically defined in the rule itself. But my understanding is that um That the terms are familiar enough to the courts that they have and the and the prosecutors and the defense attorneys that they worked out I mean they may Dispute in a particular case whether the threshold is met of course whether there's enough evidence to satisfy But i'm at reasonable cause Is not you know, you we have clear and convincing we have Probable cause is used and now we have reasonable cause That's the only place where I see some I'm not sure what all that means Yeah, that might be a good question to for the uh Evan Evan and matt to weigh in on how that works in practice No Well, I had a note and the bill used the term Satisfaction of the court and there should be and I had a note that there ought to be some standard Think navada uses clear and convincing Yeah, or if you wanted to be consistent with rule 41, you could use the same substantial evidence standard that um, yeah Um There's yeah, that's sort of that way would parallel the rule Yeah, I was looking at the bill on line 10 on page two Um, the law enforcement officer would the warrant application demonstrates to the satisfaction of the court Rather than by clearing convincing or probable, you know cause or whatever Isn't that already in here in rule 41? They have to prove they have to show the court Well, I'm questioning the term and see little II That says reasonable cause Then up above it was a different thing, right? Yeah That's all I'm questioning. I'm just the basis If that's clearly defined in law work in the That's all I'm questioning here I don't think, you know, we need to do it personally. I don't think we need to do a whole rewrite of either rule 41 or you know, no not warrants for Vermont. We seem to be pretty protective however I'm just questioning the different terms That covers some of the main principles, but just a couple other things that I want to note There's some specific pieces languages that talks about what we've already mentioned warrant for monitoring conversations tracking devices, etc Some procedural points that are that are worth Understanding for background number six here that there's The warrant application and the affidavit all have to be filed with the clerk of court So there's this filing system that the documents are all kept in the court and the clerk has to assign it a number And enter it into a warrant log and a data and a database. So you've got this record keep System as well that's set up so that the warrants the applications the affidavits are all maintained by the court in this database in a warrant log Also the execution and return of the warrant so that means so when the officer actually takes it to the place that's meant to be searched and looking for the property or person to be seized So specific provisions on that you see the officer has to make a written inventory as well. So first of all the execution the officer The person officer sorry takes the property they have to give to the person from whom the premises From whose premises the property was taken a copy of the warrant and a receipt for any property taken So they get a copy the warrant receipt for property Um And leave a copy there or sorry or leave it there at the place from which the property was taken There has to be an inventory as well, which is a written Inventory of any property that was taken the officer has to compile that And the return and number three is that means that they have to bring this back to the court for filing again So no later than five calendar days after the warrant was executed So after the search or seizure was made no more than five calendar days after that The officer has to file with the court this return that states when the warrant was executed Inventory any property that was taken in a in a copy of the warrant as well. So that all has to be refiled Back in the court after the warrant's executed Again, you have more specific provisions about these procedures with with respect to monitoring conversations tracking devices, etc Um Number six, you see there when it turns out that the warrant is not executed. There still has to be Documentation of that so that is maintained with the clerk of court as well The person whose property was taken can file a motion to get it back at subdivision f So subsection if I should say subsection g you'll see it's a relevant two to s228 That's a motion to suppress remember we talked about that Uh, so generally speaking the rule provides that the defendants who's agreed by an unlawful search and seizure May make a motion to suppress evidence Um, if the motion is granted the evidence shall not be admissible at the trial or at any future hearing a trial Remember, so that's another part of 228. That's different than this because under the uh, constitutional decisions about um, not going to announce warrants The exclusionary rule does not apply so the courts have pretty uniformly held that If evidence is seized in violation of the not going to announce rule it is not excluded. So it can still be used uh In the prosecution against the person but that's Different in s228 which provides that it's uh information or evidence Is obtained in violation of the not going to announce rule. It's not admissible And that would be more consistent with the general exclusionary rule that you see in g Can you go back to the no knock? The court language stuff or the yeah, yeah, if if the court decides to What are the standard? The court uses If there's not going to be any announcement Oh, okay. Yep So these are some I think this is what you're referring to center sears that Um, this is the first this is from the second circuit case usb accosta So if there's not going to be any not going to announce is that kind of what you're getting at when they Yeah, yeah, right You'll see several of the more well-established exceptions when not going to announce is not required that are listed right there in the second paragraph down Uh, when law enforcement officers reasonably fear violence may result They're going to announce their presence If they've reason to believe evidence may be may be destroyed If they were to provide notice before entry Or when an announcement by officers would be futile as may occur when circumstances indicate That the inhabitants are well aware of the officer's presence and uh, the u.s. Supreme court case in richards v wisconsin further down below talks about the same concept, which is that The circumstances are Are reasonableness Basically, you know the when not enough may not be required And in that case the the defendant was um Or actually I think it was the prosecution was arguing that a felony any felony drugging investigation should always be an exception To the not going to announce requirement the court said no It's not i'm not going to do a blanket rule like that instead. It's really based on the particular case and for and the court said that For example, felony drugging investigations may frequently present circumstances warranting and no knock entry That doesn't remove the from the neutral scrutiny of a reviewing court the reasonableness of the policy decision Not going to announce not to knock an announce in a particular case. So instead in each case duty of the court to confront the question And determine whether the facts and circumstances of the particular entry Justified dispensing with the knock an announce requirement. So it is You know a reasonableness question, which is often the case under the force of the Fourth Amendment Um, but the court statement in that last paragraph is similar to the one that we just looked at In the second circuit case those first three exceptions You know, so may I Senator yes, I know that larry wants to make a comment to after you senator white Well, I was just looking at um, there was some discussion about whether we should Do any rewrite of rule 41 I would be very nervous about us doing any of that And in both of these cases they use the word reasonable Which is what is used in rule 41. So it seems to me that there is some Some understanding about what reasonable means Yeah Matt did you want to comment? Well, I did and and uh, I Would just and I really I'm kind of I would I had come to it quite a while ago, but senator white sort of just reiterated it. I We we who do this work know what the substantial evidence? Standard means We these cases have been these standards have been litigated Um, there's a lot of case law around the country. There's case law in vermont um, I would not be tinkering with Language that everybody knows and understands In an area of law in vermont that is not You know being abused right now, I've to you know to be perfectly honest, I mean with the the the incredibly small number of uh You know no knock warrants that we have um like I said if if uh the the before if the The legislature wants to make a statement that no knock warrants are disfavored um Then uh You know, that's about all that this this bill would do in in my view because the court is ultimately going to apply rule 41 in the constitution Unless there's an out and out prohibition on no knock warrants But as things go are right now, I don't even see that uh They're being used with enough frequency to make any Making a concern that I understand in other states that it's a very very different thing um But uh, I'm just not seeing it here and I you know, it's I I should probably as defender general just say oh You know, let's get rid of no knock warrants But as a practical matter, we don't have no knock warrants Now except for literally less than a handful a year Across the entire state And I would point out the the bill s 228 doesn't get rid of no knock warrants only It actually reiterates The the current standards. Uh, yeah, yeah for no knock warrants. Um, so like I said, the bill as it came in is more of a uh You know an aspirational statement about how little they should be used Which is something I think that vermont is currently uh compliant with Thank you Very helpful And is there you want me to pull the screen down so that can yeah, please Yeah, I can't see if evan has is I could see map, but I can't see evan And they want to comment Evan would like to comment Yeah, yeah, I would if I could and thank you very much. I mean generally I I agree by evan meaning for the record with the department of states attorneys and I I agree with uh with the defender general that for the most part these are and john campbell testified to this effect previously that folks Practicing in this area tend to know what these standards mean and there is some case law that helps provide guidance But really what those cases highlight is that these determinations are best made on a fact specific basis in the context of an individual search warrant application Or upon review of a challenge to a warrantless search Um, and then I think john campbell mentioned that I previously Prosecuted many internet crimes against children task force cases I can think of maybe maybe a few occasions where we might have obtained a no knock warrant But I actually can't think of any occasions in which we actually executed the warrant in that fashion and instead The preference was always to try and knock announce our presence and have a conversation with the residents In order to see if we could ascertain what was going on. So even when we obtained these which were few and far between I can't think of a single case that I handled where they were actually executed in this fashion And in terms of making a statement I'm having recollections of the conversation that occurred earlier in the session in this committee about the aggregate value of Of stolen property And I I believe the I believe one of the ideas that was kicked around was Not necessarily to do something legislatively but to issue some type of of letter addressed to businesses and state's attorneys to To highlight that the legislature appreciated that there was an issue and wanted to comment on it But didn't necessarily see the need to do it in a in a piece of legislation And and and that would certainly be an option available to the committee in this context as well Well, you know if it appears also on the federal mat wanted to comment Again Your hand didn't go down. Thank you. I can Figure it up and down is I'm getting it there You know it occurs to me too that one of the things that goes on with no knock warrants to the extent that they Exist now is that a court is actually reviewing the decision-making to get a no knock warrant um, I kind of fear that in the event that You know no knock warrants either the standard is changed or the or they are um Somehow, uh, you know just said, you know, we are going to we are going to do them anymore That this will put law enforcement in a position at times of saying Well, we're going to rely on our ex's exigency options That is and that's a decision in the field that's not reviewable by the court And then let the chips fall where they may after the fact At least with no knock warrants It is getting judicial review before those decisions are made and if the court says no Then law enforcement has that decision and Defense counsel has that decision um Going forward, um, if uh, if the law enforcement decides to use an exigency Uh determination to enter without announcing themselves Uh the the The abuse of this and other jurisdictions Uh goes beyond, you know, kind of the practical application Of them that we see in vermont and No knock warrants to me Are not I think everybody sees them as not favored I the thing about them now is at least in vermont is they at least get judicial review Um in advance rather than putting the officer in a position where they have to Make an exigency determination on the street Um at the time after the fact it It provides some level of Uh protection and and guidance that wouldn't otherwise be there if they were outlawed um, so I You know, this is probably an odd like I said an odd position for defender general to be in but it's Uh In vermont it makes sense to me Hey good, uh commissioner surling. Did you have any comments on this bill? Sorry senator, excuse me trying to get to all the right buttons. Um Nothing Nothing to add beyond my prior testimony and uh and agreeing with both, uh The state's attorneys and sheriffs and the defender general I did have a conversation with the sponsor of the bill or at least one of the sponsors of the bill um senator ron hinsdale this weekend and I let her know that we probably would not go further with the bill that we've taken testimony and that the committee is Concerned that we actually could do more damage than not if we go forward with the bill um, is that the general sense of the committee senator barouf yeah, I would agree with that and Just add that it seems to me, um What the the bill has written calls for We already do so it's it's really offering just a reduced Carve out but there's still a very large carve out there for safety at where the The issuing officer would make that determination So I just I don't see that it would do very much at all in practice And I think as you say we might unintentionally muck up some of the existing case law, so senator white I agree with everything that philip said and I I do I have no interest in Either mucking up what's currently happening or in passing And spending time on what might be called. I don't remember who it was earlier called a symbolic gesture Everybody else senator nicker senator benning Okay with it. I think I think the danger if it could be I mean if we're doing if we could do if we wound up doing more harm than good that would be terrible So I think it's good this way. I mean, I think some of the terms that are in here You know make it seem a little shaky that someone might Do something with the present situation, but I trust that's not it's not happening so I'm fine with Not going ahead of this bill But I just kind of feel that if there was an absence of any kind of regulation whatsoever this might be something to pursue but This is so well litigated so well understood and so very rarely used I just conclude the bill is not necessary It appears that in another state some of the abuses occurred when the wrong address Is entered And that I hadn't heard anything about that happening in my mom. There may have been cases. I'm not sure the Just the other thing was that if I think in one of those minnesota cases another plate another state had requested that and the Police agency said they would only do it if it was a no knock. I mean That kind of thing is very disturbing But all right, I think we're pretty unanimous in that Eric, thank you so much for going over rule 41 and helping us to understand the current state of affairs on no knock warrants and warrants and search warrants in general um I and help was also helped to hear some of the case law behind current laws and current practice All right, Matt evan and uh commissioner shirling. Thank you We're gonna switch now to s 140 and accurate relating to prohibiting civil arrest at courthouses and Is evan erwin jacobson here Oh, she's joining right now Okay Erwin, good morning. Thank you for joining us Good morning. Oh, she's joining right now Okay No, she's here. I think someone has their YouTube on so you're hearing it after that Well I was there you too. Okay. Thank you. Are we good? Peggy Yeah, I think we're good. All right Erwin, thank you for being here I think I just called you urban. I I'm sorry It's fine. I've been called worse and um, maybe this is a good opportunity to say good morning Tears tears and good morning to the committee For the record, my name is erwin jacobson from the community You're welcome. Thank you I'm from the community justice division of the attorney general's office and I testify today in support of s 140 An act relating to civil arrests at Courthouses. Thank you for having me We do have a couple of suggestions for minor amendments, but I would first like to Start by explaining and then illustrating why we support s 130 s 140 Excuse me We support this bill because it aims to protect not only individuals seeking access to justice in our courts But actually the courts themselves and our system of government As the supreme court has held quote the unhindered and untrammeled functioning of our courts Is part of the very foundation of our constitutional democracy And as our own justice reiber has pointed out recently at the height of courthouse arrests by ice under the trump administration Fair and free access to our state courts is enshrined in the vermont constitution And when that access is foreclosed by fear of civil arrest As you heard direct examples of last week in testimony by migrant justice We are all less secure Um, I too have experienced what happens when Individuals are arrested by ice in vermont courthouses Before I came to the attorney general's office. I practiced immigration law first at a little non-profit in burlington and then at the immigration clinic at vermont law school And during that time I worked with dozens and dozens of asylum seekers and individuals seeking humanitarian immigration release because of domestic violence crime victimization or trafficking And twice I had clients who were arrested At vermont state courthouses by ice Um, the first instance was in 2014 When I received a call from a domestic violence shelter in the northeast kingdom And they were working with a woman who had just been released From ice custody after ice arrested her at her hearing where she was seeking a protection order Against her abusive husband and at that hearing In open court her abuser argued to the judge that the judge shouldn't believe anything His wife was saying that she was undocumented and so therefore she didn't care about the law She didn't care about abiding by laws Um, and so she shouldn't be considered honest or trustworthy Um, she was granted that order by the judge But while she was waiting to receive a paper copy of the order ice came and arrested her right inside the courthouse They then took her and detained her in St. Alvin and then um from there she was released to the domestic violence agency because she had nowhere else to go She could not go home um In the second instance this was in the summer of 2019 a client of mine went to court um, she Where she appeared for her hearing and connection to a very minor Traffic driving offense and while she was there after Her plea deal when she went to the clerk's counter to pay for fine That's when two ice officers came and arrested her again inside the courthouse I was not there at the time. I was simply her immigration attorney not her defense attorney But by the time she was arrested her defense attorney had left Luckily, she brought a friend with her and it was her friend who called me saying That she'd been handcuffed put in the back of an suv The friend was following the suv. She thought probably to the ice office in st. Alvin Um, I was able to get in touch with ice. I pled for her release. I explained that she was the full care provider for a young child um, but she was held for several hours and then She was placed in removal proceedings where still currently She is defending her deportation. So One thing I want to point out about these two different arrests is simply that well the first In the first instance the woman who was seeking a protection order that was in 2014 So that was under the obama administration and at that time the obama administration had guidance very similar to what the biden administration currently has That did not directly prohibit Courthouse arrests but discouraged them With the exception for concerns about public safety or maybe national security now in that instance My client had no criminal record whatsoever. Her only immigration violation was that she'd overstayed her visa So i'm not certain what the what the public safety concern was there But again, I want to just point out that That is a very similar guidance to what the current current administration is following. Of course in the 2019 example Times were very different. We were seeing many many more courthouse arrests under a different administration the trump administration and their policy really was to Simply arrest as many non-citizens as possible to To deport as many Violators of immigration law as as they possibly could no matter where those arrests happened So I guess what I just want to point out about that is it's this Though though in recent years where most courthouse arrests happened where they were in the news Those in fact did flow from trump administration prosecutorial priorities, however All all guidance from ICE is always interim because it can change from one administration to the next and Though there is guidance that protects arrests in certain places like schools and churches Courthouses have traditionally never been places That would fall under what what is considered a sensitive location or a protected location under ICE guidance and that remains true today So the trouble here even where courthouse arrests might be rare Or there might be federal guidance that Discourages arrests at our courthouses It still remains true that it puts individuals in fear of going to court It puts survivors of domestic violence in fear of going to court and as the first example illustrated when ICE might be Lurking around our courthouses when somebody fears going to a court for a protection order that is Something that abusers know is happening and that they can that can serve as another way of weaponizing The threat of immigration enforcement against their victims and this is a very very common form of abuse against non-citizens is The threat imparted by abusers to victims saying you shouldn't call the police. You shouldn't call A domestic violence agency. You can't trust them. You shouldn't go to court ICE will be there and they'll arrest you. It's a very common tactic So it's not just those folks who fear who might need a protection order Where our system of justice is then impeded or Interrupted People who fear going to court to pay a fine People who fear being a witness that perhaps the state needs to successfully prosecute a crime When that when those things happen we are all less secure so I'll pause here. I do like I said, I do have a couple of requests for minor amendments But I guess I would just like to point out that What what this bill is not This bill does not challenge the federal government's power to regulate immigration. That's not that's not what this does ICE officers can and do arrest people in vermont And this bill is not about preventing ICE or any other law enforcement agency from effectuating criminal arrests Or arrests accompanied by a warrant Rather, this bill only aims to codify a long recognized common law protection against civil arrests at courthouses A protection that is really about the sacrosanct nature of our courthouses and about protecting our sovereign interests And having a functioning judiciary that is open and accessible to all without fear or disruption I'm happy to take questions or I'm happy to go over some of those The amendments that I would like to request Um, are there any questions? I think you've been quite clear actually I was very helpful to hear about particularly about the difference between Obama, biden and trump, but the the facts still remain somebody could be arrested Even when it's discouraged at a courthouse under biden Absolutely that that that was helpful. Um Do you had a few changes to suggest? Um, I do thank you for the opportunity to to request those. Um, well one is that in Section this is on page two um in in the penalties and private right of action section under At line 13 with regarding the powers of the attorney general Um, we would just suggest that that being made a little bit more clear about the kind of relief that the attorney general can speak Should someone violate? This law and so would suggest that it's a The office of the attorney general may bring civil action On behalf of the state of vermont For appropriate equitable or declaratory relief If there is reasonable cause to believe that a violation of subsection a of the section has occurred or will occur Right. Do you have a copy of that for eric? Yes, I think you probably got it, but I haven't sent it to him yet. Um, I didn't I wanted to um Testify first and see if that was okay Uh, but I'd I'd be happy to send my suggestion. Yeah, it's easier for me to Honder that if you could send it to eric or eric. It was pretty simple. So I don't think it's that complex No, it's very simple. Yes. Um, another Suggestion would be to Um put all of the remedies under one section that is remedies. So there's The contempt remedy Right now that's called penalties There's the civil action for false imprisonment And there's the attorney general enforcement power so I would suggest changing penalties to remedies Um, and putting the civil action for false imprisonment and civil contempt all into one paragraph With the attorney general remedy being in the second one And and in that way, I'm not sure you would even need the provision that talks about Bringing a civil action in the civil division of the superior court Not to mention if there is if um an individual We're going to sue the federal government for a violation of the statute Who you know the federal government's not the only people that could violate this but in that instant Then the federal government probably could not be sued in the civil division of the superior court It would likely need to be in a federal district court So I would just strike that that language and then you could strike that section entirely And put the civil action for false imprisonment Um form of release in with the sub paragraph one about civil contempt proceeding and not and not Name which court the civil action for false imprisonment would need to be brought in I think I got that I'll send my mark up to eric and um cc the committee Okay Any questions Eric do you have any I know just that I didn't follow the last piece. So Okay, I would need to see that in writing. Thank you. I'll send it along right now. Thank you. Thank you Any other questions for Aaron um Our next witness is rebecca turner who was here just the other day Nice to see you again Nice to see you too. Good morning seeing you all year now. You're a regular I know now you'll see too much of me soon Um, but good morning, uh, rebecca turner from the defender general's office for the record on s 140 And I'm glad that uh, erin jacobson testified before me because she she um Took care of a lot of the points I wanted to raise but To begin with The defender general's office also strongly supports this bill Um Not only for the reasons already stated by the witnesses and that you've already heard about Uh, the the critical issues and interests that this bill serves to address right, which is ensuring access to the courts of just basic due process and access by litigants by witnesses to court proceedings in all courts Not just criminal not just family and um As well as a recognition that this is a fundamental state Um enterprise and that is to uh to Essentially not be uh stimmied by federal law enforcement in the administration of state court proceedings and so that this bill goes a long way in addressing that and unfortunately as uh Attorney jacobson already described this the need for for this kind of legislation hasn't disappeared Just because we have a change in the administrations at the federal level. I thought I would address One of the concerns or questions I heard last week, which was concerning the the enforceability of this legislation perhaps on on federal agents And what I wanted to share was that the sources of law actually Exist independently from this bill and And it codifies long established common law common law going back to the to the uh 15th century So english common law that then became incorporated into american federal common law as well as State common law around the 50 states, but certainly here in vermont And that is specifically this privilege Against arrest Civil arrest when a person is appearing in a court proceeding for a different matter and again that source of law Is inherent in the recognition that the courts need to be able to do The business of the courts that it could easily be disrupted If people who want to conveniently serve or arrest a person They think will be showing up at court in a certain date and time Again all public information that they could just stand there on on the steps of the court or nearby the courthouse And and arrest the person and prevent them from going forward. And so fundamentally this has been A basic principle of our legal system from the very beginning embedded in our common law Found an old 1881 decision from our vermont supreme court Recognizing this long-standing privilege. It's in re healy for the record 53 vt 694 um Another thing that is interesting about this privilege again just to highlight What this bill does and captures it really tracks this old common law privilege It's it includes Not just the prohibition in the courthouse Right, but near Near the courthouse and that again was something that existed in common law that it didn't just Exist when the person was in the courthouse or standing on the steps of the courthouse But even near the courthouse out of sight of the courthouse The other other aspect of that privilege was that If someone a litigant a witness was concerned that someone might be there ahead of time They could seek protection from the court in advance. So it didn't have to already be there So it was called a writ of protection again those kinds of protections are here in this bill And so all of which to say that this is why I think this lies is enforceable against federal lesions Certainly there have been more recent legislation. Sorry recent court decisions federal court decisions 2020 Early and later in 2020 a federal court in district court in new york can serve whether or not Ice could be prevented from making court arrests in in the state courthouse And there the federal district court of new york also recognizes long-standing privilege in common law and and applied that to these ICE agents as well uh and Embedded in there is also another fundamental through constitutional principle another source of law for the enforceability of this against federal agents and that is separation of powers federal government certainly has the ability to enforce immigration laws, but states are given the authority to enforce and administer their state laws that is fundamentally taking place in our state courthouses So I think I think that that this legislation stands on on solid footing in terms of those questions and its enforceability because this has been couched in the sense of of affecting fundamentally the adieu administration of the courts It is deemed inherent in the powers of the courts to issue contempt Relief and remedy to people who will not honor this and so again that is consistent with this bill I think the only question I had that That attorney jacob sin brought up for me and she talked about suggested changes And I'll have to I'll be curious to see them in writing Is the requirement that I heard that right that the civil that the civil action would have to take place in federal court I'm not sure that's the case or or whether I misunderstood But certainly I think that our state courts Have the ability to address these issues if If the federal agents want to move this to federal courts, they certainly can Um, the only other suggested amendment I have on this bill is it's very small And it's on page two line 11 And it's under the section private right of action and It's in the reference to injunctive relief. I would just add the additional injunctive and declaratory relief Again, those are common forms of relief that go together I think attorney jacob sin right made that reference for the second part in line 13 through 15 But that's the only additional change Otherwise Yeah, are there any questions? Happy to Thank you. It's been pretty clear. Thank you Um, I would I found interesting, um, attorney jacob sin's comments regarding the Vermont constitution and it's Requirement that the courthouse be free and open place Fair and free access to our courts as part of the remand constitution I suspect that that somewhat comes from our history of distrust for new york I think that's right. I think it's our history of distrust of Of tyranny period And what I was going to say is which is why I'm not a yankee fan but that It's probably due to tyranny More than that That caught us mild from senator benning happens to be a yankee fan Um, attorney jacob sin Yes, thank you. Also a red fox fan. Oh, I don't know if you said you're a fox fan. You just said I did Oh, okay Not a yankee fan as usually So an affirmative fox fan. Yeah, um, I just want to respond to attorney turner Question about my comments regarding the the venue for a tort claim I just don't think the bill should specifically state that The civil action must be brought or could only be brought in state court. Um, because of the issue with If an individual wanted to seek Civil action against a federal officer. It's true that that would likely end up going in federal district court according to Federal statutory law, so I just don't think the f 140 should dictate Any particular venue? Okay Thank you. Thank you any other questions for either rebecca or um turning turner or turning jacob sin. All right, why don't we go on to, um migrant justice and I Is um betto was you a betta with you? Um, uh, good morning senator sears. Good morning committee Yeah, we'll land back for the record with my good justice. Unfortunately, um, uh betto Is is still in the milking parlor. He hasn't been able to get out of work on time So I don't think he'll be able to by this morning. I've I've been watching my phone closely, but Um, it was going to be a tight shave. Um, I could just share in broad strokes What would be part of the the subject of betto's testimony? He's a as you heard a dairy worker in vermont He's lived in vermont for a number of years And left mexico Fleeing persecution that he was facing as a gay man in mexico In 2019, uh, he was arrested on on charges of dui Was released by the the police and then presented for a pre-arrainment conference, I believe on december 31st of 2019 As he was in the court hearing, uh, ice agents Appeared and alerted his attorney that they were going to be detaining him at the conclusion of the hearing And as he left the courtroom, uh, they were there, uh, they they handcuffed him And he was held in immigration detention For a number of weeks, uh, despite Appending asylum claim, uh, he ultimately was successful In winning his asylum case and being granted asylum He was released from detention and is is still in vermont to this day and this was uh, um This was a terrible ordeal from him. Uh, he was Subjected to to abuse and pretty atrocious conditions when he was in immigration detention Um, and it was also a terrible ordeal for the community who who Heard about this. This is a um, he's a well-known person in the community. This is a high profile Arrest and and and really sent shockwaves and and sent the message as you've been hearing In testimony throughout on s 140 sent the message to Folks in the immigrant community to to stay away from courts It's a dangerous place that you could be putting your your liberty and jeopardy And and there's a strong sense of You know people wanting to do the the right thing by by appearing for for court hearings and In in this case, whereas a a dui and a recognition of you know, I I screwed up I I made a mistake here. I want to go through the process pay the consequences. What I whatever I have to do And that's a common sentiment for for people In that circumstance But the the fear that uh, you'll you'll be detained by immigration and and uh held in federal custody and then deported oftentimes outweighs The the desire to to go through the process and have your day in court And so in in the wake of those detention, what what oftentimes happens unfortunately is is that People who have criminal charges Out of fear of that outcome Just decide to to to leave the state and and either return to their country of origin preemptively Or just try to go find work in another state That denies them their due process their day in court and it's also You know denies the state the ability to to to bring forward And conclude whatever criminal charges there may be And as you've heard in testimony from attorney Jacobson and others criminal matters certainly aren't the only or even the principal way in which People may be court users And this has a chilling effect for people to use the court in a variety of ways Whether they're litigants in a civil suit or a family case or what have you But in in Beethoven's particular experience, this was a a criminal charge And and so that the the protection that this law would afford would have allowed him to Go to court without fear of arrest Finish the the criminal proceedings. They pay whatever consequences you had to pay and and be Be subject to due process and the equal treatment of the law that Any other person could expect And they're proceeding like that. So I'm sorry that bit there wasn't able to be here I am too sorry himself. I hope that that gets let him know or sorry. We weren't able to hear from them, but Did a pretty good job of describing a situation and the problems he faced I'm interested in you. You said where was he? he was held in immigration detention The the closest jail with an ICE contract is the strafford county Correctional facility in dover new hampshire That's a federal It's a It's a county jail run by the strafford county sheriff's office with a federal contract So there's an immigration wing of the county jail I know that st. Albans correctional facility holds some people on of federal charges They have a certain number of beds for the us marshals office But he wasn't held there. There's I wasn't familiar that there is a special Yeah, I'm sorry to hear the conditions were We're such in a facility of that nature Yeah, and my my understanding that you're You're correct that the the northwest correctional facility has a contract with the us marshals ICE can detain people there up to 48 hours, I believe but long-term detentions Go go out of state. Go out of state. Okay. Thank you for that clarification Thank you very much No, and I'll add as well that the the The amendments that attorney Jacobson presented I also have the support of my good justice Okay, thank you. Thank you. All right. Any other questions for will Thank you. Thanks for being here this morning and let me I don't know that we're sorry we can hear from them, but We appreciate his testimony through you. I will pass that along. Thank you very much committee. Yep All right Eric, okay Um, this is committee discussion time and markup It didn't seem too outrageous what was suggested for changes. They appeared minor Um, would you like 24 hours to try to put that together? Yeah, that makes sense. I think The only suggestion I'd have is that uh And I got uh attorney Jacobson's email and they all make sense to me Uh, I do question the striking of subdivision d1 about uh, the private right of action. I think the concern expressed was that Uh, it didn't want to inadvertently limit someone's ability to file an action in federal court I don't think the subsection does that the subdivision does that it simply says their person may bring an action uh for Injunctive relief and I agree with adding and declaratory and that other language it was suggested, but it's not an exclusive Right of action the person It wouldn't attempt to nor could it prohibit a person's ability to bring the federal civil rights section under 1983 or Some other basis for a federal cause of action federal court. So I think it's just one it's stating expressly that the person has this right of action, which they could always try to make out anyway, but um You know providing it expressly in statute that a person has a private right creates the cause of action that You know establishes the legal basis for them to bring this action and So that's the only suggestion I'd have is that I don't think it it Hurts anything and in fact may help the the person the violated person's situation by keeping that language senator bruce Eric I I tend to agree with you. Do you think it makes sense to add a sentence? after that In that section saying that it doesn't limit these other venues I've never seen I haven't seen that before. Um, I don't I don't think it's legally necessary If you felt like you wanted to add it I suppose it probably doesn't hurt anything. Um, no, this is where I I rely completely on you. So whatever whatever you think makes sense in terms of um When you explained it you explained that that language wouldn't limit Uh, and I was just wondering if it made sense to say that explicitly Yeah, I think sometimes the sometimes the legislature does add you know add language For to make something explicit even if it may not be legally necessary So I I don't think it the language will foreclose anybody's right to bring a federal lawsuit But if you wanted to say it I said I don't think there any be any harm done I actually I I Prefer less Usually over more. So I hear I hear you saying that the way you stand behind the way it's written And I stand behind you standing behind it Thank you I certainly don't have any monopoly on the truth. So I'll I will be incorrect sometimes too, but I I appreciate the thing you You make an excellent tag team there. I'm convinced that you're both right But otherwise otherwise I I see all the uh helpful suggestions from attorney Jacobson. I think they all make sense and uh um, I could certainly do a uh Redrafted that fairly quickly so whenever whenever the committee wanted to look at it again Well, I'm I'm looking at tomorrow morning at 9 a.m. That would give you time to Send out copies to attorney Jacobson attorney Turner and Will lamb back to make sure everybody's on the same page and as well as the committee and We could schedule it. We've got you for a committee discussion on Supermajority verdicts a trial at nine so we could move that to nine 9 30 start at nine with s 40 140 and then at 9 30 go to s 178 and then Take our break and then go to 163 Yeah, that sounds good to me Okay That worked for you peggy Yep, uh and eric send me the Changes and I'll get it to everyone Great. Thank you, baby Okay Senator Sears did we get any response from the u.s. Attorney's office? Uh Yes, we did they're not allowed to speak on state laws Or state legislation say not laws but Proposed state legislation Interesting and that Was true of the prior u.s. Attorney and it's true of the current u.s. Attorney. So evidently it's Doesn't matter which administration's in office in terms of that one. Okay. Thanks. I I yeah Yeah, but I do thank peggy for checking with the u.s. Attorney's office. All right. I think what we're going to do is just adjourn early take a half an hour. I'm going to Take more pictures of my cherry pie Maybe put them on facebook Maybe eat it Well, I you know, no, I'm just uh grateful to friends like senator white who would Work with senator camp in to make that happen and I really do appreciate it. It's Very nice