 Senate Judiciary, we're taking up S-254 and act relating to creating a private right of action against law enforcement officers with violating the rights established under Vermont law. Our first witness this morning is the sheriff from LaMoyle County, Roger Marcu, and welcome Roger and good morning. Good morning, Senator Sears and members of the committee and thank you for allowing me to have a few moments of your time here. Again, for the record, my name is Roger Marcu, M-A-R-C-O-U-X. I've been the sheriff of LaMoyle County since 2001. I've been in Vermont law enforcement for 41 years, except for five years, where I worked for the state department assisting Haitian national police in the investigation of human rights cases. And so I've written, so I'm... You're muted now, Roger, somehow. Some people like me best that way, Senator Sears. I've written my testimony. I don't know how much where I went muted. So I take it that my background got through, Senator Sears. Your background did get through. We lost you at the five-year point. Yeah, worked five years for the department of state assisting the Haitian national police investigating human rights cases, primarily politically motivated homicides. So I do have a little bit of background in that area there. So I'm gonna read my testimony so I don't get off track and then take questions after that. But again, my intention is to be brief and respectful to all parties where opinions may differ. I am not a legal expert by any stretch of the imagination. Therefore, I'll leave any legal arguments to the people with more experience than I in that area. But I'd like to focus on is the risk reward for my particular testimony. Something hopefully a little different than what you've heard. And the risk reward should be considered while contemplating this bill. In other words, what is the magnitude of the qualified immunity issue in Vermont and that the bill seeks to address? First of all, the Vermont sheriffs have signed on to the position statement that the Department of Public Safety and many other agencies have also signed on to. And that we believe that eliminating qualified immunity in Vermont would be detrimental to the Vermont sheriffs. So the way that I'm focusing my testimony is to maybe ask a lot of questions such as how many people in Vermont have gone to the courts or have contemplated seeking a remedy for our through our courts only to be turned away because of qualified immunity. And unfortunately, we won't know those people that may have contemplated coming to court but not done so only because of qualified immunity. But in the position statement offered to the committee on page seven, it stated that eight out of 10 recently reported cases were denied by the second circuit in New York. On page eight of the position paper, it listed 12 Vermont Supreme Court cases involving qualified immunity and law enforcement officers. And of the 12 cases, the Vermont Supreme Court denied three. They allowed qualified immunity in five and did not reach an issue in four of those cases. The position goes on to explain more about those cases and I won't get into that here. My point in bringing both the second circuit cases and the Vermont Supreme Court cases is that our judicial system does take these cases seriously and spends time addressing circumstances surrounding the cases. What's the risk involved in the elimination of qualified immunity in Vermont? And I think Senator Benning brought up the unintended consequences. There was a news story in channel three here yesterday attributed that attributed a statement that a public safety is at risk and attributed that to Senator Sanders regarding a shortage of firefighters and EMS workers calling the situation a crisis. You've heard others testify that law enforcement in Vermont is in crisis. Stopping is in crisis. It is a fact that law enforcement agencies in Vermont are down 114 level two positions. That would have been what was called the old part-time positions. Those are utilized a lot by the sheriffs to monitor and help security in motels situations, help DCF with transports and the mental health with transports that particularly Illinois County sheriffs and Wyndham County have been involved with. So we depend on these positions greatly. And we're currently down on a statewide level. We're down 311 level three positions. Those are our full-time folks. So we about every department is down at least one or two people. And this is really impacting our ability to not only provide service, but public safety. And I'll get into that in a little bit. But these numbers come from the Vermont Police Academy. The Department of Public Safety had conducted research indicating that in 2020, Vermont lost 91 law enforcement officials or officers. And that's municipal and state sheriffs weren't included in that. They lost 91 officers while only graduating 51 statewide. So in that, I didn't include 18 and 19 years in that, but there's a pattern. So before COVID, the Loyal County Sheriff's Department, we had 45 deputies and now we're down to around 25. And certainly Senator Sears is aware of the work that we have done trying to help the state with various security needs again with DCF mental health in the motels. The quality of the recruits applying make it difficult to replenish our losses on a statewide level. Last week, we had a deputy here on duty that left our patrol area to travel 10 miles to an accident scene involving a mother and an infant because a trooper covering that area was an hour away. This is unsustainable in the victims of violence such as domestic violence are also affected. You can imagine somebody in immediate danger calling for a trooper or a sheriff or an officer and because of the staffing shortage, they have to wait. And those are situations where we are not serving our victims very well at all. The unintended consequence of removing the safeguard of qualified immunity for law enforcement officers is that more of our current cadre of staff are looking to retire. Some are looking to leave law enforcement altogether. Here in my department, we'll be forced to pay for professional liability or malpractice insurance because we're certainly not going to, we're trying to pay law enforcement officers more in the state in order to entice them to stay but you can't throw an added bill of some kind of personal insurance on them. We're going to have to cover that and I don't know what that cost is going to be. I want to make it very clear that this bill has certified professional law enforcement officers throughout the state concern that they are not appreciated for their service to the public for risking their lives at those type of calls where they are hurt, where they are in fear for their lives. This bill will have that unintended consequence of perhaps adding to the staffing shortages that we already have. And I say that Senator Sears and members of the committee would all do respect. The question is, how serious is the issue of qualified immunity here in Vermont as compared to concerns surrounding our staffing and the concerns that law enforcement officials have? Because this is not only affecting them, it affects their families and their homes and what have you. So with that, I will ask if there's any questions that I can answer. And Senator Sears, I do have more information on this issue with the deputies that were speeding and had the prisoners in the car happy to discuss that and what I was able to gather for you on that at any time. I appreciate that. Maybe we should probably discuss that offline, Chair. Yes, sir. And I would, you know, I know we're gonna have future conversations about the use of state-paid deputies as well as conversations about court security. And we're trying to set up a meeting and perhaps you should be involved with Senator White, myself, Senator Kitchell, and some of the court officials. And I really would like to have you involved in that conversation. Yes, sir, anytime. I appreciate your testimony. I wanna reiterate that my intent in co-sponsoring this bill is not to tear down police officers. I have the greatest respect for police officers. I think it's proven by my work here in the last 30 years as a member of this committee, as well as Chair for the last 26 years. I join everyone else in hating frivolous lawsuits. And if there's a way to amend this bill to avoid frivolous lawsuits, I would love to hear that. If there's a way to get greater accountability with law enforcement by amending this bill or not even doing it, I'm happy to look at it. I actually, to be honest, I'm at this point, I'm wondering if anyone should have qualified immunity. Whether it be you as a police or as a sheriff or me as a legislator. The more I've studied this issue, the more I wonder what part of, who was figuring this out? That, you know, when the Supreme, the United States Supreme Court first came up with this in the 60s and developed this. As I look at the history, there's a number of questions in mind, there's a number of questions in my mind as well. I've been the subject of a frivolous lawsuit, so I know how it feels. And so I'll be, you know, I want to talk about that when we get to the portion of Markup, but I would help, you know, would help to have any ideas about how we can avoid some of those. But some of these cases, Senator, never even get to court per se, because the insurance companies pay, I don't know what it's called, the nuisance money or whatever, but they'll actually pay because it's cheaper than to litigate. Yeah, I know. But sometimes the insurance companies discover you're not covered under their policy for that particular item, no matter what you thought. Yeah, we've been through it before, all of us. Yeah, I think we all have. Yeah. Anyway, other questions for the sheriff? Sheriff, thank you so much for your testimony. And for your work, by the way, and throughout this COVID pandemic and providing deputies for court security in other counties as well as providing protections for the homeless and also your work with Juveniles. You know, during that crisis as well after the closure of Woodside, I think publicly, we don't thank you enough for some of the things you do there above and beyond Lamoille County Sheriff's job. I appreciate that very much, Senator. Okay. Our next witness is David Slay, who's a attorney. I don't know who I've ever met, David, but I've certainly heard him. Joe Benning speaks highly of David. Some days. Welcome, David. And this is Senate judiciary. I'm Dick Sears. And for all others who may not know the rest of the committee, Senator Nick from Windsor County, Senator Bruce from Chittenden, and Senator White from Wyndham County. And I'm sure you already know, Senator Benning. I know you know. Caldonia County. Thank you to the chair and all the members of the committee for allowing me a few minutes to talk about this important piece of litigation. For the record, my name is David Slay, S-L-E-I-G-H. I've been a trial lawyer in Vermont with offices in St. John'sbury for over 38 years at this point. I'm not affiliated with any advocacy group. I'm certainly not compensated to try to persuade anybody about anything. I'm also certainly not anti-cop. I have represented police officers who have been charged of wrongdoing. I'm currently doing that and I've sued police officers when there's been a basis to alleged that they've been involved in unlawful conduct. I'm not a proponent of defunding the police. I think that good policing actually may cost more than bad policing because it requires extensive training, supervision, and dedication to the notion that the police really are guardians of our civil society, and they are critically important to that. All that being said, that adopting the bill S-254 is important and laudable. The notion of qualified immunity is really an aberration in our justice system. It, towards the truth-finding mission of our courts and certainly deprives Vermont citizens of protection of core civil rights in all sorts of circumstances. The history of qualified immunity as the chair alleged really got started in 1967, but didn't get full sale until 1982. At about that very same time, Vermont started on its own path in developing a significant body of state constitutional law. 1982, a lot of things were going on in the federal level where the Supreme Court was cutting back on traditional civil rights protections that had been provided under the 4th, 5th, 6th, and 8th Amendments. And Vermont Supreme Court and legislature both were worried about the curtailments of those rights and have established independent state grounds that protect Vermont citizens to a greater extent than the federal charter. This bill in essence would codify that well-established Vermont constitutional law. And that's an important thing, and I'll get back to that in just a minute. I think it's important to understand the way qualified immunity works in our court system why it's unique and why it really is, in my view, dangerous to things that we might hold fundamental. The basic problem with qualified immunity is that it denies litigants, a right to discovery, a right to investigate, and a right to gain access to evidence by which they can prove that their constitutional rights were unreasonably impinged upon by law enforcement officers. So that in almost any other circumstance, if a plaintiff sues a defendant, a court would look at the initial paperwork and decide if the plaintiff had alleged sufficient facts for the case to go forward. That's the first screening mechanism to weed out so-called frivolous lawsuits. Once that happens in almost every other instance, each party has a right to ask the other to produce evidence that's germane to the claim and to which the party would not otherwise have access. It's called discovery. You can file a request to produce. You can submit interrogators. You can conduct deposition. Qualified immunity deprives plaintiffs of that critical portion of a civil lawsuit so that a judge is forced to take a look at the pleadings and decide whether the defendants are protected because, A, it doesn't involve a clearly established constitutional right. And I'll talk more about that in a minute. Or B, that there are insufficient facts to allow for the entry of judgment on behalf of the plaintiff. Now, normally that assessment comes after each party has had a full chance to develop evidence. Qualified immunity under a case called Hickbombs Supreme Court denies that critical right. And so in instances where, for example, a plaintiff is claiming that they have been pulled over, arrested, detained, imprisoned on the basis, for example, of their race or ethnicity, proving that would almost certainly require asking the agency for statistics about their search and seizure policies, their detention policies. For example, in a case I had recently, we discovered that the Vermont State Police had basically an inventory of recorded stops that a trooper had ever made. This was in a context where the trooper had said that he had informed the motorists of his rights under the Soldiers and Sailors Relief Act, turned out that he hadn't been doing that, and the Department of Public Safety was able to look at every single stop and determine whether he had done that and why. Qualified immunity would prohibit a plaintiff who had a facial claim of racial discrimination from examining the record of that trooper's conduct or the agency's conduct and thereby be frustrated in litigating a very serious claim. So that's my basic criticism of qualified immunity in that it creates a unique and disparate and unlevel playing field that shifts the burden to plaintiffs in a way that deprives them of being able to make their case in a way that absent qualified immunity they'd be able to do. That deprivation really goes hand in hand with sort of a historic lack of transparency that I think has haunted law enforcement when claims of unlawful conduct have been made against them. That seems to be against the current tide of our lawmaking where we're trying to encourage transparency. I've heard complaints that this... that if we were to end qualified immunity in this aspect that officers somehow would be discouraged from doing their job. Quite frankly, it seems like the opposite is true. That scrutiny is a good thing. It promotes training, it promotes good behavior and would in a long term benefit law enforcement and benefit the state of Vermont. This particular bill, I think, cuts interesting and important balance in that it would allow plaintiffs to fully investigate and present their case to court, but it also indemnifies individual officers. Now, under current law and current practice, officers who are sued for constitutional violations are routinely indemnified by their various agencies, even though there may not be a legal requirement to do that. This law codifies that indemnification so that individual officers operating in good faith would not face any serious financial sanction. I've heard and read various materials presented to the committee and otherwise that I think I would call sort of chicken littleism that abandoning qualified immunity is going to cause a tidal wave of lawsuits and vex law enforcement. As a trial attorney, I can tell you that when we take a case, my colleagues and I, we do so only if we think that there's some reasonable chance of success. We're not tilting at windmills and we're not doing things maliciously and there simply would not be a tsunami of litigation against police officers. The other notion is that dispensing with qualified immunity somehow would discourage applicants from becoming police officers. I think we can look at the big resignation across the entire economy. There are unfilled positions for nurses, bartenders, everything you can imagine, none of which has anything to do with qualified immunity. And it seems to me unlikely that an applicant who wants to protect and serve and be a guardian for our community would predicate his or her decision of pursuing that career based on whether qualified immunity existed or not. I suspect it wouldn't cross anyone's mind. Most importantly, from my point of view, this statute is necessary to protect particular Vermont constitutional rights. So, for example, as I spoke earlier, Vermont has gone beyond the federal government in protecting course of the rights of its citizens. That being the case, if a Vermont officer were to demonstrably violate one of those extended protections, he or she would be shielded by qualified immunity from any liability and a plaintiff would be denied any compensation because the United States Supreme Court said that a violation of a clearly established state right does not constitute a compensable violation under the federal civil rights statute of 1983 and I can provide the committee with the case site. So, in any event, for example, police officers unlawfully went into somebody's cartilage or into their home in a way that would violate Vermont's constitution but not violate the open fields exception to the Fourth Amendment, a lawyer for the officer could say that was not a clearly established federal constitutional right and the plaintiff would have no redress even if it were a bad faith violation of Vermont constitutional right. This statute is necessary to protect all that Vermont has done since state versus Badger back in 1982 to provide protections for Vermont citizens and with that, Your Honor, I don't think I have anything else. I'm happy to take questions. Oh, thank you. Senator White is the first question. So my first comment is, Senator Sears is very happy to be addressed as Your Honor. That often happens with attorneys when they come in here. So my question is, and I wish you would expand on this a little bit because I have done a lot of research also and I do think that the 1982 Supreme Court did a huge disservice to this by adding the phrase clearly established. And my question is, and you alluded to it but I wasn't sure I completely understood it. My question is, does Vermont, if somebody sues under the 1983, section 1983 under the Federal Civil Rights Act, then it has to be a clearly established. But if they sue under the Vermont, in this case it sounds like under the Vermont Constitution. My question is, do the courts have to use in state cases the clearly established standard or could Vermont set a different standard that wasn't so onerous as the clearly established standard? Does that make any sense what I'm asking? Yes, it makes perfect sense. So just as our Vermont Supreme Court has deviated from United States Supreme Court decisions on privacy rights, property rights, our Vermont Supreme Court could reject the application of qualified immunity and embrace another statute, another standard. They have been unwilling to do that and have applied qualified immunity consistent as a federal analog, if you will. So this statute currently would be necessary, absent some successful litigant in the future persuading the Vermont Supreme Court that they should in this instance depart from federal law in terms of suits against law enforcement officers. This statute would be the most expeditious, clear-cut and broad-based way to do away with the most onerous parts of qualified immunity. I guess my follow-up question to that would be short of the Supreme Court taking a case and making that decision. Could that different standard be done legislatively? A short of completely eliminating qualified immunity. Could that standard be adopted legislatively? Yes, I think that's what this bill does. So I guess I misunderstood that because I thought that this bill is completely eliminating qualified immunity at all in any case and not just clearly established. Oh, I understand what you're saying. So could the bill eliminate some elements of qualified immunity as opposed to the entire defense? I suspect that's true. Though I think from my own view, there are two aspects of qualified immunity that are particularly troubling. One that clearly established right because if you ask a lawyer, every case is different and it's almost impossible to establish in a given set of circumstances that there was something identical in the past that should be clearly recognized. But the second aspect really is the deprivation of discovery that the premature truncation of litigation that denies plaintiffs in these kinds of suits writes that every other plaintiff would have in some other setting. And those are the two most troubling aspects to me. Thank you. I did not appreciate that about the discovery in the cases. I'll think about that. Thank you. The case I can send it to you, but it's Iqbal. I think it's a late 1990s case, but I can send it to you if you like. I would like that. Thank you. We'll be happy to do that as soon as we're done. Are there other questions for Mr. Slay? David, thank you so much for your testimony. to get your reaction to something I read last night. A homeless middle-aged black man knew he was caught. He sat frozen, his hands in the air, watching K-9 circle the basement of a house in Nashville, Tennessee. He had broken into a house fleeing from another home burglary with the police in pursuit. Show me your hands, an officer yelled, shining a flashlight and pointing his gun at him. The K-9, who was there, paced back and forth, marking. One of the officers grabbed the dog by his collar and kept, the dog kept barking and rearing up. The defendant held his hands higher in the air, he surrendered, then without warning, the officer sicked the dog on him. The K-9 attacked, sinking his teeth, its teeth into Alexander's armpit. The bites were so bad that he had to be rushed to the hospital. Since the Metropolitan National Police Department denied Alexander's internal complaints and appeals, he filed a handwritten civil rights complaint in federal court from jail. That's when the ACLU got involved. In the case of police brutality, the Supreme Court requires lower court judges to ignore whether any laws were broken and dismiss the case unless another police officer in the same jurisdiction had been found guilty previously in a similar situation. The lawyer knew that the court had already ruled that it was illegal to release a K-9 on a suspect who had surrendered, and that gave Alexander a good shot at justice. But at trial, the judge ruled that since the previous case, the suspect had surrendered by lying down, and that Alexander had surrendered by sitting on one or another, so the judge and both qualified immunity and let the cops off scot-free. The ACLU then appealed the case to the U.S. Supreme Court, but they appell the lower court's decision. Is that a, using qualified immunity, could that happen in Vermont? Absolutely, and that's the most vexing part of how the United States Supreme Court has applied the clearly established right. So the focus has been taking off what right was violated, and this point, somebody who has surrendered to police orders is in custody, he should not be subjected to excessive force. They've shifted focus away from the right to be free of unreasonable seizure to the facts. Are they identical in a way to some prior case? And as I said to Senator White, there are no two cases that are identical. There's always something different, every case is unique, and that's one of the most troubling aspects of qualified immunity. So is there a right, is there a way to draft this bill so that it takes away that requirement of having something similar but keeps qualified immunity in those cases where, in those types of cases? I haven't thought about that. My initial answer is no, because I think you just start to deviate from a bright line into an area that's going to invite an enormous amount of litigation and interpretation about what's clearly established, whether we focus on the right or we focus on the fact is to become a subjective, objective mix of analysis. So I think that that would just result in confusion and likely not get to the goal that is desired. I think you're on mute. Any other questions from Mr. Slate? David, thanks so much for joining us this morning. My pleasure and an honor to be here. Thank you. Thank you. Stefan Gillum, if I mispronounce that, I'll adjust. We're fine, that is all right. It's good to see you all this morning and to be here. I have to run at 10, so I will try to make this as short and sweet as I can. So first and foremost, I think a lot of people here probably have seen me more in the role of the NAACP, which is something that I proudly serve as president of for Wyndham County. However, today I'm coming to you more actually in my role as a clinician, and that is a PhD level, well, finishing my dissertation now, but PhD level mental health expert. And so I just wanted to share a couple of words from that perspective. The first thing that I want to start with today is by asking a question, we've heard a lot about police, but what about the people? What have we heard about the people? I'm sure that over the last, however long you've been taking testimony, you've heard a lot about the police and the impact, but what about the people? Especially in a state that's becoming more and more diverse, just as in my county, which is Wyndham County, but it's preparing to take people in droves from the continent of Africa, actually. I would also like to spend a couple of moments after posing that question, just defining what complex PTSD is, because that is the thing that usually happens to people when they have very negative interactions with law enforcement, almost more than any other professional job in our country, negative interactions with law enforcement lead to long-term mental health effects, right? And these are things that have been talked about all across the media and activists talk about it, mental health experts talk about it, police talk about it, medical experts talk about it, right? I mean, we just declared racism as a actual thing that kills people medically. Four definitions say complex post-traumatic stress disorder is a condition where you experience symptoms of PTSD, along with other symptoms such as difficulty controlling your emotions, feeling angry or distrustful towards the world, constant feelings of emptiness or hopelessness, feeling as if you are prematurely, permanently damaged or worthless, feeling as if you are completely different from other people, which makes sense because in a lot of cases you are treated differently than other people, feeling like nobody can understand what happened to you, which I think as attorney slays, who I think just spoke kind of expertly pointed out, can easily happen underneath our current system, avoiding friendships and relationships, finding them difficult, often experiencing disassociative symptoms such as depersonalization or derealization, physical symptoms such as headaches, dizziness, chest pain, stomach aches and regular suicidal feelings or suicidal ideation. Facts and data are good, but let's not forget about the humanity, those who you were all elected to serve, the people who you walk past every day. It only takes one case of injustice to start a movement. We saw that in Minnesota, we saw that in St. Louis, we saw it in California, we've seen it in New England as well in Massachusetts. And qualified immunity has been a conduit or the legs for that injustice before, it has created a culture for injustice to thrive. And we have to remember that it has created a culture for injustice to thrive. I was thinking about today, the multiple cases that I could use that I have just seen in the media to kind of point out what qualified immunity or that culture has sort of done to our behavior as human beings, because that's something that is usually not qualified in a conversation. The more protected you feel that the more your behavior is altered and that could be for better or for worse. When you are given a gun and weapons that sometimes that behavior can definitely be for worse. We can look at Rodney King, which happened many, many years ago, or we could look at Breonna Taylor, which happened just a couple of years ago. The lack of justice was fueled by fear that condemning one bad apple would be a threat to all law enforcement. But what about those people in their lives and what they suffer? The incident happened to one individual, one individual but then it happened to the families and then it happened to the community because one thing we don't talk about is how mental health is pervasive or how these acts are pervasive and how they impact everyone, right? So what do I mean? Well, let's take Rodney King for example, it's just a one-off example. After what happened to him, he talked about, and this is public, you can just go Google it, the impacts of what that was like, right? The air smelled different. All of a sudden the streets he grew up on were different. Everything felt different because your life changes after you have been harassed, after you have been discriminated against in that manner, but it wasn't just him that felt different. Because of the injustice that happened, family was different. The way his family felt and breathed and lived was different and then the community was all of a sudden different. And that can very easily happen in Vermont, places and places that y'all are elected to serve. So when a member of the community suffers direct harm for which there is no visible accountability, the world not only feels smaller, but it takes away the basic human need, right? And we look at Maslow's hierarchy and that need us to feel safe. We need shelter, we need safety, we all know those, right? So as you hear facts from institutions dead set on protecting themselves, right? Which is what we're hearing, right? Facts about what could happen from institutions, law enforcement, protecting law enforcement. Ask yourself this, were you elected to protect them? Or were you elected to protect the people? Ask yourself, who will those elected by you who belong to communities that are most harmed by police violence feel about the decision you make today and what will their reaction be? Ask yourself, how can you make a difference that opens a pathway to justice for those who you claim to represent and who are the most impacted? Many facts you are being presented are being used to scare you in my opinion or to cause you to catastrophize what could actually happen instead of looking at what is actually happening across the United States. This is happening, people are dying. This has happened, it's still happening. It's happening in our backyard. It's happening in places across the country and even across the world. This is not just a social justice issue that we're dealing with in the United States. This is a global justice issue. This is a human rights issue. And this is a Vermont issue. Don't think it can't be us. One day it will be us. This decision that you make right here will definitely matter. And I'm hoping that you make the right one, in my opinion, which is to support this bill and to put a stop to the culture that Qualified Immunity creates because it is so much further and so much more harmful than just a trickle down effect that can be easily explained by economics. Thank you. And I'm happy to try my best to answer any questions. If you can. Yeah, we've got about five minutes, according to my watch. Are there any questions for Stefan? Stefan. First of all, thank you very much for the testimony. And I'm curious if you've heard of situations in Vermont where Qualified Immunity has allowed somebody to not have justice. Let's put it that way. Yes, I mean, I definitely have. And I would like to say that it's the culture of Qualified Immunity, the belief that nothing is going to happen, the belief that I've seen this happen to my cousins, to my uncles, to my aunts, right? And nothing happened. So why would I report this? They bring people, I have had people in my own county bring things to me, bring things to the branch or people who are affiliated with the branch that probably never make it to law enforcement or we've had to bring to law enforcement but that's a different level of impact, right? Because all of a sudden now we're playing telephone. So yes, it definitely does happen. The culture stunts a lot of that and also the fact that when there has been advocacy or when people try to advocate for themselves, it's led to what they would do as non-success because of the culture that's created. And also I've also seen police officers who act as if they know that this culture exists and they're okay with behaving badly because what's gonna happen to me anyway, right? So I hope that answers your question. It helps, thank you. Senator White. Thank you. Thanks, Stefan. One of the things that you were talking about when you were talking about the kind of impact on not only the person but the family and the community and one of the things I think I heard you say was that it is made worse by if the action has no resolve, that there is no way to have an answer for that action. And did I understand you right? So that if there was an actionable, an action that could be taken to resolve the issue that it might not have the same impact on the person, the family and the community. Did I understand that right? Well, I think so, but I think it's contextual, right? I think that when we're looking at something of qualified immunity in its relationship to civil suits and the difference between what criminal and civil actually is in this case, I think it's really hard to figure out what justice looks like. Now, if your doctor harms you, if I'm practicing and I harm someone, there are other ways to seek justice for what has been done, right? And I think that that's happening, that happens in most professions, especially when you're seeking out a license, when you're seeking out credentials, within law enforcement, it's a little bit different. And so what we're seeing is that, like Breonna Taylor, for example, was murdered as she slept, right? And now her family has to deal with that. And now the community has to deal with that. And we've seen uprisings across the country of people just trying to wrap their head around how there could be no justice there. And so even if that place might have a one-off law or something that has been sort of tailored for its specific context, it does nothing to actually add to the bigger picture or the culture. What this bill does actually does add to the stripping of that culture and actually might be something that can be, in my hopes, used as a model across the United States because if this happens, it definitely will be a model across the United States for what it looks like to actually do right or at least try to do right by people, but not only do right by them, but do it in a proactive way before something bad happens. Because as we know, and as I said, it only takes one time, we might be a small state, but we still are a diverse state growing ever more diverse. And we know what is to come in the future when we look at policing and the growing diversity in Vermont. Thank you. Thank you. I think we just made it in time for you. So thank you very much. Yes, we did. Our next witness, thank you. Our next witness happens to be one of my constituents, Mia Schultz. And Mia, welcome. She is the head of the NACC. She's the head of the group for Rutland and Bennington counties. Mia, welcome. Thank you, Chairman Fears. Thank you so much. Members of this committee for having me here. And my name is Mia Schultz and I am the president of the Rutland Area NAACP. The National NAACP has also made a commitment to push for the end of qualified immunity through the George Floyd Act, which has yet to be passed on a federal level. But this is a law that our national offices support ending. So it is a pleasure to be here and speak with you today. So in May, 2021, the state of Vermont declared racism as a public health emergency. And the reasoning behind that was based on statistics that showed that people of color were affected disproportionately to the health risks because of systemic racism. And at the time, I remember hearing that the Senate made a commitment to root out racism in Vermont. With that particular statement, they were making steps towards that. Also in May of 2021, the state of Vermont issued a proclamation in which it said it is essential for all to know that Vermont seeks to achieve equality and equity and aim to create a culture in which racial, ethnic and other cultural disparities are openly acknowledged and addressed. And where no one person is more likely to experience society's benefits or burdens than any other person. May of 2021 also happened to be the one-year anniversary of George Foley's murder. And so all of these things were happening in Vermont to create change in our racial justice spectrum and within our systems. So I bring that to the space to you to remind you all of the commitments that you have made in the past, right? Almost a year ago. And that have been made in this governing body in particular as well. And to remind you that you wanted to recognize and root out areas in which systemic racism exists. Now, the history of policing, unfortunately can be traced back to slave catching. And I know that that's a really hard thing to hear. I know that we have changed those systems since then and don't want to acknowledge that there are routes into slave catching. But the disparities today might tell us otherwise, even here in Vermont, when we talk about our traffic data during COVID and how still black and brown drivers are stopped more frequently, proportionately to their driving population by police. So we have established bias and problems and racism in our policing system, right? That is established by data, which brings us why we're here today, which is this legislation to end qualified immunity. And that would be number one. First, I wanna mention that like you all know this is only for police officers. And I think that there's a large body talking out there in the public education-wise saying that this might be across the board, but this is only targeting on police officers. And I don't really believe that it will lead to an influx of cases because it's not meant to punish police for simple mistakes or mishaps. This is meant to address the most egregious and intentional behavior of police officers. And I know other witnesses have expressed this and emphasized this as well. And that this is about accountability. And opponents might also argue that accountability is already baked in, but to what extent and what numbers. I mean, we have seen on a nationwide that black and brown people cannot even get even a resemblance of justice unless it's recorded. Unless you have indisputable evidence like a man leaning their knee on their neck and it publicly being recorded and put out to the world. That's what justice looks like in some ways for black and brown people to get, it has to be recorded. So to tell me that accountability is already baked in, I have not seen otherwise. And that goes back to the question even in the culture that my colleague was discussing. We don't even have people who want to go to the extent to even submit complaints because we know that the culture protects the police officer. So what does the ending of qualified immunity due to the morale of police officers and the future of recruiting? I say well, since ending qualified immunity will only hold those egregious police officers accountable after proof of such behavior has been given and proven. The risk is more far important to take in the name of humanity than bad police officers. So the only people that should be have anything to worry about are bad cops, right? Good cops have nothing to worry about and recruiting good cops should actually increase because they know that they have, maybe you'll get a new type of police officer to come in to your police department. You never know that there are being made assumptions about the morale and the type of police officer that will be recruited because the end of qualified immunity. And I call that an illogical fallacy. So by passing this legislation, you are not only upholding, you're just basically upholding that commitment that you all made in 2021, which was to root out systemic racism. This is the first step and like Stephon said, this is the way and the pathway to show the rest of the United States that Vermont, one of the whitest states in America passed this legislation because they knew it was rooted in a form of discrimination and does not uphold humanity, qualified immunity does not uphold our humanity. And we can send that message to the rest of the nation. Thank you all. Thank you, Mia. Are there questions for Mia? Thank you very much for the testimony and thanks for being here with us. And I just want to point out once again, having somebody from Bennington by Zoom is much easier than having them drive to Montpelier, sit in a small committee room and wait to be heard and then have to drive back two and a half hours to Bennington. I want to continually point that out as a reason to keep the, even if we're back in our committees to keep the option for witnesses to be able to testify remotely. I don't have any questions. I think it's very clear. Bennington obviously has been in the news several times regarding law enforcement and settlements and so forth. Do you have any thoughts about what impact that might have on Bennington? I think it goes back to what my colleague said is the culture. I think that there is a culture in that pits police officers and policing, police, the whole institution of policing against citizens and especially marginalized citizens. And I think that marginalized citizens do not come forth because of that culture with complaints of egregious behavior that have occurred to them. And in Bennington, we have seen retaliation play out over and over again when we talk about the fact that when people do complain or when people do stay stuff about basically what policing has done to protect or not protect them in a lot of cases, it adds to that culture. And by ending qualified immunity, we are saying we are going to eradicate this or try to eradicate the culture that police and people are separate and that we can be community together to protect all of us. It just goes to overall, it sends a message to the overall community about our rights and our power to be able to be heard without retaliation and that there are methods in place to protect us. And so it's about a message to towns like Bennington who have seen time in a time egregious behavior happen within our policing system and not really protecting actually and not really seeing a really good relationship between the community and especially marginalized communities. I mean, police and the marginalized communities. I hope that makes sense. Thank you. Other questions for Mia? Thank you, Mia. Our next witness is a former police officer, Wayne Peterson. Wayne, thanks for joining us. I think you heard us introduce the committee earlier. Yeah, sir. So, and I know Senator Baruth and you have talked, so. Well, thank you, Mr. Chair and Senators. I've got to say it's a delight to participate with this committee whose very purpose is to promote justice. So I applaud your commitment and the work you do. My name is Dwayne Peterson and I appreciate the opportunity to share some perspectives I've gathered along my careers. I served nine years as a patrol officer with the Los Angeles Police Department and eight years as a special agent with the California Department of Justice. I literally swore an oath to defend the Constitution and I proudly served my community in uniform. I got to say those were rough years when violent crime was raging. LA suffered a thousand murders in a single year while I was on duty. So I understand and deeply respect the challenges of working in law enforcement. I had the sense to choose Vermont and moved here to work at Ben and Jerry's where for 12 years I helped the guys, Ben and Jerry advance the concept of values led business and then I joined my business partner, James Moore who some of you may remember from his time in the state house as a public interest advocate to launch Sun Common, which is our state's largest clean energy business. Now a wholly owned subsidiary of another great Vermont business, ISON. So while those experiences brought me some insights that I'd like to share here, I'm here in my personal capacity and not on behalf of any of those entities. I'm here in support of S-254 because I believe the very concept of qualified immunity is indefensible. Notably opposition to the bill is not based on a celebration or even a defense of this bizarre legal doctrine, but because eliminating it would somehow contribute to police malaise, make more difficult recruiting new folks into law enforcement or burden municipalities. I'd like to address each of these in just a few minutes. Qualified immunity I believe is indefensible. As this community has heard, it doesn't protect law enforcement practitioners from frivolous lawsuits, nor from accountability arising from their official duties. There are well-established pathways for those. Rather, it exists to prohibit victims whose constitutional rights were violated from seeking justice. It only protects those who by definition acted unreasonably. And even more bizarrely, it relies on the clearly established standard whose circular reference guarantees justice cannot be sought. Notably, those who oppose this bill to end this weird doctrine tend not to defend it, but instead posit ancillary harms from enacting this common sense reform. You heard from Vermont police officials that morale already challenged during these difficult times as law enforcement seeks to regain the public's trust would suffer further by ending this protection of unconstitutional actions and that recruiting would suffer too. I don't believe that a full-throated defense of upholding the constitution would disparate police officers or dissuade others from joining the ranks. I saw firsthand how good cops detest bad cops. Standing with the constitution can only be good. And now as an employer in the toughest labor market in my lifetime, I know that young people are voracious consumers of media and have intense filters on what's right and wrong. I respectfully assert that the pathway to attracting millennials, women and BIPOC folk into fulfilling careers of public service through law enforcement is hardly served by clinging to vestiges of injustice like qualified immunity. Better to tout the recent solid policing reforms and an end to qualified immunity as visible commitments to improving policing as recruiting tools to excite the next generation in public service. We also heard the municipalities would be harmed by this confirmation of constitutional rights. One of the aspects I appreciated about the LAPD was that I knew that organization had my back. I received two department commendations and never a citizen complaint, but I knew that if I were unfairly accused or even if I made a mistake on duty, LAPD would be there for me. So too it's uncommon where we indemnify our people and their work. I believe Vermont police would expect the same. Adding liability coverage for this niche risk is right to protect the folks on the front line. But I've also learned a lot from the caring Vermont business community that I joined. Our practices I think are our novel approaches to doing capitalism right. And one of the things I discovered that liability insurance isn't just about protecting our assets, but in creating a pool that's available to do right by victims of accidents or wrongdoing. Insurance appropriately provides for those who suffer harm. Our municipalities seeking to shirk that liability are merely shifting the risk and cost to victims. And that's not right. So I believe qualified immunity intended to protect violations of the constitution is indefensible. And the alleged ancillary ill effects from writing this wrong are unpersuasive as reasons to perpetuate this injustice. I thank you for hearing my perspectives. Thank you. Did you ever have any examples when you were a police officer in LA or with the department of justice where qualified immunity ended up protecting using your term bad cops? I don't recall specific instances of that. I would echo some of your earlier testimony that just the very notion of qualified immunity kind of hanging over law enforcement officials adds to the specter of inaccountability. So while, and this is, mind you, this was a couple of decades ago and my memory is fading as I approach my dotage. I don't recall specific examples, but I do know that the concept was prevalent and I think infectious. Could you explain the infectious other, you know? It contributed to the notion of inaccountability, which some officers acted upon. Okay, Senator White. Thank you. And with apologies to my other committee members for asking so many questions, I'm, so I have two questions here. One is, one of the things that we've heard is that this would only impact really egregious cases and the worst cops. And, but the way I understand this is anybody could file the suit and then it would be up to the jury to decide. So one of my fears or one of the things that I'm wondering about is in this age of anti-cop sentiment, would juries be more likely to even in non-egregious cases find for the defendant and I'm not sure that, or the plaintiff and I'm not sure that that's a bad thing or a good thing but I'm just wondering about that. And then my other question is you, you said the qualified immunity is a really stupid thing. You didn't use the word stupid. You were much more eloquent than that. But so, and I understand that law enforcement officers have authority and power that most of us don't. But why would we not just end qualified immunity, period for all of us instead of leaving some of us protected under it and some of us not? So you asked two questions. What, you know, my view of the likelihood of frivolous litigation and I'll have to say, I mean, I'm a business owner and we've suffered some litigation that I didn't really appreciate but I have faith in our judicial system. I think it's capable of ferreting out frivolous litigation and that's a cost I'm personally willing to take as a business person and as a citizen to ensure that folks have access to justice. The second issue, I'll share, I do have a problem just fundamentally with qualified immunity. The concept, and it sort of goes to my test of like bumping into somebody in the produce aisle. Like, can I explain something simply? And that is embedded in jurisprudence that someone whose constitutional rights were violated does not have the opportunity for redress. It's just sort of baffling and I think indefensible and inexcusable. And so, you know, I wore a badge and I served in a really tough neighborhood and I relied on my training and my wits and I was accountable for what I did and I should be given that tremendous power. And I would argue that you, even in a citizen legislature, you should have the courage of your convictions and be able to stand by what you do proudly. And, you know, if I had screwed up, if I'd made a mistake, I would have dealt with that but not hidden behind a bizarre and very difficult to explain to a common person legal doctrine of qualified immunity. Thank you. Your terms indefensible and inexcusable are much more eloquent than stupid. Thank you. Thank you very much, Mr. Peterson. Have a pleasure to have you with us. Thank you, sir. Very helpful. Our next witness is Robert Shellfield. I'm sorry, I've probably mispronounced that. Works for the Vermont Judiciary and charges of security and safety. Robert, welcome. Robert, we have technical difficulties which is one of the disadvantages of being on Zoom. Peggy, can you see if Robert's available? Yes, I can email him. Oh, coming on now. Okay. Here he is. Robert, welcome. Good morning, committee. I'm sorry, I did have a little technical internet link issue there. Well, that's, we understand that. We've all been there, done that with Zoom. Thank you very much for joining us this morning and we're dealing with S-254, we're dealing with qualified immunity and you are head of security for the judicial branch of government. Yes, thank you for the record. I'm Robert Shell and the security manager for the safety and security program at the Vermont Judiciary. I have no position today on this bill. My comments are extremely brief. We do for full disclosure, utilize about 85% law enforcement officers for our security coverage in the judiciary. My primary tenant in my job is to ensure the neutrality of the courts and it is simply my hope that through the process of addressing this very complex topic that we achieved the best and balanced decision for everyone. And that is really the extent of my comments. I will just be in the background to the course of your discourse on this and hope you're able to reach a beneficial decision for everyone. Thank you. Thank you. Are there any questions for Robert? Robert, thank you very much. Appreciate your being here. We're gonna take a 15 minute break and come back at 1040. Well, actually we'll come back at 1040. Hopefully hear from Will DeWyte and J. Diaz and Ben Nowakowski, our legislative counsel. And thank you all very much for being with us this morning and Will.