 Good morning and welcome to House Judiciary Committee and this morning we are going to be looking at S119, which is a bill that passed the Senate regarding use of force and also considering an amendment that the representative Lalonde worked on with with others. Representative Lalonde will be joining us shortly he had a doctor's appointment dentist appointment but he will be here soon. So, like to start with representative and down to you and welcome you. And as lead sponsor of, of, of one of the bills that and, and also as a leader in this, in this issue so thank you. Thank you very much representative and down to you. And I just want to briefly talk about the background and the new language addressing it. The reason I put this proposal on the table is because I thought it was the gap in in our approach is the failure to look up to look at the things that that have actually led up to the use of deadly force as part of the assessment of whether it was appropriate. And it seemed to me that this is the issue that we've seen as a problem most often in Vermont, this was not about other states it's what was happening in Vermont. I'm familiar with the UVM case where it would seem that the interaction that led to the use of force was instigated or caused by the officer. We see it in the charging with a shovel there was not a requirement for instance to try to hide behind the police car it was because the force was an immediate threat that made it justified. One of the less commonly referenced cases, you know, woman said her husband was left with a gun to commit suicide, pulled over on the interstate. He's standing with it there with a gun with to his head and won't put it down so he shot and killed. You know, was that the best way to approach and create the interaction that put others that therefore at risk and resulted in what was found to be a justified use of force. And, and I think the question of whether it might not have been necessary, if the right things were done and how that ties to whether it was justified, was really well stated by our attorney general in looking into the UVM case where, and these are direct quotes they're direct quotes that were in the media so I'm not vouching directly for him but that officer Campbell was reasonable to believe he was an immediate danger of unlawful Bart bodily harm, and his use of such force was necessary to avoid this danger. That's what made the standard that it was reasonable, but his use of foul language and antagonistic behavior did not deescalate the situation which ultimately, and I think these are the keywords, put him in a position where it was necessary to physically defend himself. He created the situation that made it necessary to defend himself, but because it became necessary, it was justified. And I think that's the really key issue that has been my concern. You could take the extreme example, not saying this ever happened in Vermont or even would but the extreme example. What if you go to a person into pulling a gun. And then they've pulled the gun because you said, come on, come on, I dare you. You are then justified, because you have that immediate threat to life, because the gun has been drawn. And I am a little concerned about whether the language on page nine of the side by side which is where I was looking at it does achieve that, because it's not clear to me that the final sentence which is when feasible and shall employ all other reasonable means before resorting to the use of deadly force, not clear whether that actually modifies the first sentence because the first sentence says it's considered necessary when given the totality and objectively reasonable officer would conclude there was no reasonable alternative. But at that second in time, when that when Phil Brennan came out with a knife. At that point, there probably was no reasonable alternative. So that still doesn't take us into looking at what were the police actions as a whole responsible for provoking the situation. So that's my only concern. I think that it's clear that the committee is trying to get to the issue that is my greatest concern. I'm not sure it gets it there. And one sub comment very, very briefly in skimming the language because I'm not. I'm not the one who's gone into the depth on all the right wording but, but it does appear to because it brings in a broader use of force policy not just deadly force. The other force appears to only be justified if it's crime related an arrest or a crime has occurred. As opposed to the use of deadly force which is when there is imminent harm to anyone and it doesn't have to be tied to a crime, which could suggest that if it's a lower level of threat than a deadly threat. I'm not intervene with any use of force and might put you in a position of having to wait till it's a point of deadly force. Not, I'm not sure if that's where we want to go with that aspect but as I say I'm not sure it just caught my eye looking through. And that's all I wanted to say unless there were any questions about it. Okay, I do see Barbara's hand before I get to Barbara and thank you I really appreciate your comments and if you could help us think about when you were talking about page nine of the side by side language that that could help us. That was tired. Yeah, I was tired. Yeah. Yeah, that'd be. Okay, that'd be great. Thank you. Barbara. So, sorry, I missed the very beginning but I am incredibly sympathetic with what you the issue that you raised and in watching some of the things that happened in Vermont. The goading is a really big worry and I'm wondering if even at the lower level. Language needs to be tied in because use of any force you could certainly try to get under somebody's skin and I feel like we've seen that happen nationally and in Vermont and it's outrageous. So I wonder about even goading as a forbidden action or at any level that can be punishable because again it's just leading up to it. Or as an action that would rebut reasonableness. Right. Yeah, I think there's a little bit more of a tie in the language right now on other uses of force. It seems to be a little more but but maybe not still not fully. Thanks. Thank you I'm not seeing any other hands but I sometimes it takes time to push buttons I want to make sure nobody else has any questions. Great. Thank you. Thank you so much really, really appreciate it and. Thank you. I'll try to stay and watch briefly. Okay, great. So I see our other three witnesses, witnesses are here. And again this this next hour or so is yours so I'm not sure who wants to go go first or whatever but we do have I'm just looking for Yang will do white and Kaia Morris. However, however you'd like. Why don't we start with I'm not seeing anybody raise it so will do. Are you prepared to go first. I can't. Paul Paul back in law school. Oh my gosh. Right. I'm so sorry. I will go first. My name is well the white. I am I'm listed on the agenda as the chair of the mental health crisis response commission. I chair the commission during our review of the killing of Phil grinning at the hands of the Berlin Police Department. I'm also the former executive director of my psychiatric survivors I consider myself a psychiatric survivor. Because I survived psychiatric abuse. And I'm also an attorney licensed to practice in New York California and Massachusetts. And I bring all that to bear in my testimony here today. Again, I want to thank you for the opportunity to testify. I know when I first moved to Vermont. It was almost impossible to get an invitation to testify before the legislature when I was the executive director of Vermont psychiatric survivors. And I think just because of general discrimination against people with psychiatric histories and so I really do appreciate it and I think other people should be also given the opportunity. Same opportunity that I've been given, particularly those who are traditionally excluded from this. I also want to thank the this this committee. I think that the Senate bill 119 the proposed amendment represents a dramatic improvement in this bill and I appreciate your, your efforts in that regard, I appreciate the expansion of the bill to cover the use of force and not only just deadly use of force I think that's an improvement. I also appreciate the attempt to define key terms used in the bill particularly proportional proportional and deadly force. I appreciate the repeal of Vermont's antiquated justifiable homicide statute. As it stood, as long as you had a deadly force bill alongside your antiquated hop justifiable homicide statute. It was really null and void, because the justifiable homicide statute was much more liberal. And what was justified and really was in direct conflict with the, with the proposed statute. As I read the bill appears to be really a codification of the US Supreme Court jurisprudence on on use of force, particularly the use of force that's not deadly force. And that seems to also limit gold step further than Supreme Court jurisprudence when it comes to deadly force because it seems to limit deadly force to situations of last resort, which I think is actually another step in the right direction. I think by where I think the bills shortcoming is because it misses an opportunity to address the deaths of people in mental health crisis at the hands of law enforcement, which according to counterpoint, which is the type of Vermont psychiatric survivor has increased many fold, since the death of Phil Brennan I think five people have been killed in the four years between Phil's death and, and the present. And so what I like to do is basically just I'll just go through a kind of step by step some of the things kind of both little and larger that I would like to see addressed, beginning with kind of the definitions. I think the bill could benefit from actually a definition of the word force. You know, you define deadly force, but you don't define force. I know that many police departments, for example, Burlington police department and its policy directors do define force. You know, kind of colloquially forces, you know, kind of any kind of physical restraint that has assist a risk of injury. And so I think, I think the bill would be enhanced by a definition of force. Prohibited restraint. This is, this is actually, you know, that this is a pet peeve of mine, when legislators name something, but do do the exact opposite in the text of the bill. I mean, the best example is the Affordable Care Act, which is not affordable whatsoever. And here we have prohibited restraint, which is also not prohibited. And it's also, when you read the statute, it says that prohibited restraints are permitted as kind of in self defense. So, but in that case, if you're using this quote prohibited restraint and self defense it's not a restraint. It's a deadly force. And so the use of the word prohibited restraint creates a lot of I think confusion. And I, you know, used to be a trial lawyer, and I talked to a lot of juries, and these are the kinds of things that juries get hung up on. So say a jury, a police law enforcement officer is on trial. And somebody in the line of duty, he uses the justifiable homicide defense to justify his use of this so-called prohibited restraint. The jury instruction is going to go to the jury and it's going to say, was this police officer's use of prohibited restraint justified. And you'll get these jurors who will be so perplexed because they'll say, well, of course it's not justified, it's prohibited. So you create this unnecessary confusion by using the word prohibited restraint to refer to something that's not really prohibited. And so I suggest that this body change that terminology to more accurately reflect what it is you're doing in the body of the text. And I know that means that it'll have to be changed in other areas of the law, but I think it's worth it, both for clarity sake for better drafting and and I think it's also more fair to a police officer. Also, I think the prohibited restraint the way it's drafted, it's not clear to me what it is you're trying to do. I know that some jurisdictions who have prohibited choke holes or strangle holes, which are two different things right so strangle holes. One cuts off kind of breathing one cuts off blood, and they really only wanted to limit it to strangle holes and but what what you're doing what you give the example of saying you can't touch these parts of the body. But then you make it broader to say you can't really cut off breathing and blood flow. And so it seems to me that you have to kind of do one or two things it's either you, you want to prevent cutting off breathing and blood flow, which, which in that case, you wouldn't limit it to touching certain parts of the body you would say you can't put pressure on the body, including the neck, you know the carotid artery blah blah blah to prevent breathing or cut cutting off blood flow, or you just say you can't put pressure on these parts of the body. Right. I don't think you can do both, because it's just too confusing. So, so I think that section needs some work. And then, and then, and the totality of the circumstances your definition I'm switching now to your definition of totality the circumstances, and I don't have the side by side I also I only have the, the draft. That's on the website the pages, but under the definition of totality of circumstances. You say that totality of the circumstances means all facts known to the law enforcement officer at the time, including the words and conduct of the subject and the conduct and decisions of the officer leading up to the use of deadly force. And that deadly should be deleted, because the totality of the circumstances definition applies now both to non deadly force and deadly force that was probably carried over when this bill only applied to deadly force. Do you see what I'm talking about. But anyway I think that I think that word needs to be deleted just. And then. I have a problem, a big problem actually with some of the the considerations of the totality of the circumstances were where you say that the totality of the totality of the circumstances may include under be subdivision be little Roman animal to signs that the subject is suffering the effects of a mental disease or defect. Now, that seems really kind of also antiquated language and pejorative as far as I'm concerned, and also not really reflective of what a police officer is going to encounter. In the field, so to speak. You know people may be appear to be in the throes of a mental health crisis for a variety of reasons, including a chronic mental health condition. A medication induced reaction, a diabetic emergency, a traumatic brain injury, all of these things can masquerade as a mental health crisis. It should not be limited to an officer shouldn't be expected to determine whether something is a defect or disease, whatever that is. So both because it's kind of pejorative dated, and because it really doesn't it's not it really doesn't reflect what's happening in the field I think that language needs to be updated because I think what really at issue is is the person physically or mentally such that they are unable with through no fault of their own to comply with an officer's request. I also think this is and I'm just going to segue here into what I think is the biggest missed opportunity in this bill, and that is to specifically address law enforcement encounters with people in the mental health crisis. Currently, the law is unsettled in the Supreme Court about what officers have to do when encountering person who who is obviously in a mental health crisis, but the circuit courts have been. Plus, there's many circuit courts, including I think our second circuit, which have said that the same amount the same considerations that you use and determining whether to use force or deadly use force I'm going to say use force. When someone's not on someone is mentally impaired, they're different. Right. You don't. Some circuits have said, you need the considerations whether to use force when a person is impaired mentally or physically is different when a person is suspected of committing a crime. I think that this statute needs to incorporate the state of that case law in our circuit. And so where you say in here that the total, the consideration of the totalitarian circumstances may include. I'm not sure that that is an accurate statement of the law in this in the in the circuit in the second circuit, because I think some circuit say it must include when it comes to people who are in a mental health crisis who are not suspected of committing a crime who are not posing a danger to the officer. That's the reason illness of your actions are different must be different than a person is suspected of committing a crime. And that is the problem that is my main problem with what happened in the case of Phil grinning. Phil grinning had committed no crime was suspected of committing no crime. It treated him like a criminal. And in violation of I think constitutional principles and in violation of the Americans with disabilities act. And so, I don't want to get into, I don't want to discuss the law but I just want to tease the issue up for you that I do think that you know, it would be worth talking with your legislative council to figure out what is the state of the law as the people who are in a mental health crisis, particularly when when it's not an issue of the use of deadly force, and to make sure that this statute accurately codifies the state of the law, or where we want officers to be in this state. And then, I guess, and the last thing I'd have to say about it is that, you know, like I said at the outset that I'm pleased that the justifiable homicide. The statute has been repealed because it was antiquated and it didn't really apply. But I do think that the statute would benefit by an explicit justifiable homicide statute. Similar to what California did. And so California had a justifiable homicide statute similar to Vermont's just as antiquated. And when it changed its use of deadly force policy it repealed it and replaced it with language that specifically said homicide is justifiable when committed by a they use peace officer but I'll say law enforcement officer when the homicide results from a law enforcement officer use of force that is compliant that is in compliance with this new statute in this case section 20 VSA section 2368 I think that it's I think it's important to be really clear that we do have a justifiable homicide statute and that statute applies when you comply with this use of force statute. So I will stop there to see if there are any questions. Thank you so much I really appreciate your, your testimony and I've been writing really quickly try to pull this down and I'm so appreciative that we have YouTube so we can go back and and watch the watch your testimony because you really did give us a lot of very helpful insight and information. Again I'm not seeing hands but I want to give folks time to press buttons or jump in. Martin, there you go. Thank you very much will defer your testimony and actually was very helpful. The input that you gave in the Senate Judiciary Committee I read have read over your submitted testimony there and also the testimony or it's not wasn't testimony but your discussion at the social equity caucus was also very helpful and I tried. As a person who worked on this amendment I tried to incorporate various ideas that that you had brought up in those two places and sounds like I may have gotten some of them but not necessary all of them but this is an iterative process this is an iterative process certainly and I'm just wondering if, if you have any specific language related to particularly how to treat law enforcement encounters with mental health crises if you've seen that before, or if not, because I would certainly like to explore that and I didn't think all of Representative Donahue's testimony I was driving back from the dentist at the time but I think I caught quite a bit of it. But I'm wondering if you'd be willing if, if I could perhaps work with you and and with our legislative council on that because normally I wouldn't ask that kind of question but but we're really on a very tight timeframe and I think I would love to see you get this thing through, because we have some certainly salient ways certainly have some wind in our sales so to speak, and certainly would like to try to improve this as you've explained so I guess there wasn't really a question there so much as a request that maybe I'll touch base with you later if you're if you're able and willing. If you're willing and just let me, I mean it may just be something as simple as. This is kind of uncharted waters and maybe something as simple as quoting from let me let me read you just a sentence from the Ninth Circuit Court of Appeal where they said, quote, the level of force that is constitutionally permissible in dealing with a mentally ill person differs both in degree and in kind from the use of force that we be justified against a person who was committed to crime, or who poses a threat to the community. I mean something as simple as that may suffice, you know just lift lifting the language directly from a case to let people know. You, you, I'm looking at you and you're looking puzzled I'm not sure. That's, though that sounds good. I mean, what's the case site. Do you want I can send you I've written this out want me to send it to you. So that would be helpful. Great versus Cummings 917 fed third one. And it's the first circuit court first circuit to 19. It's a recent second circuit course that just came out in May 2020 with a egregious facts, almost similar to the grinning case that I would ask you to look at. And it's, it's, it's on a motion to dismiss so it has those limitations, but I think it gives you an idea of the direction that the second circuit is going. It's a case where they actually denied to dismiss the case and hold that the qualified immunity held, please went into an African American 68 year old African American males house who had history of mental illness. Because he had inadvertently triggered his life alert button, and when they got there, they were told it was inadvertent he didn't need help. He was convicted in any way with tactical and killed him. The trial court dismissed it. The second circuit said no, hold up. So it's a really good case to look at in that case is Chamberlain versus. I'm drawing a blank, but Chamberlain versus city white planes. And I'll get you the but I think those are really two good cases to look at and I'll get you the citations. You're welcome. Great. Excellent. Thank you. Let's see. So I see Selena Barbara and coach I'm sorry if I'm calling you out of order when you put your hands up with Selena. Press, pressing all my buttons for fair to speak. Thank you so much for your testimony is this was so, so helpful. And I had been aware about that language of may in the totality of the circumstances. sections, you know that it may include these and I think I'm hearing you say that. I can get can get exactly into a section and that I'm talking about some talking about subsection a five of section one. It says considerations of the totality of circumstances may include. One of the things I'm hearing you say and I just want to make sure I'm hearing it correctly is that really more appropriate language might be shall include. I'm not saying that in terms of all of the listings I'm only saying that in terms of people who were in a mental health crisis, who have committed no crime. And I think I think it's an accurate statement a lot of say may in those other cases right because and that's what the court said the US Supreme Court said in 1989 case where they laid out the objective reasonable objective standard and deadly force it said it may include that's an accurate statement of law. Except when it comes to people in a mental health crisis. Some of the circuits are saying, shout out right it's a different standard. So, I'm proposing that you tease out the, the stuff that has to do with people who are mental health crisis you've committed no crime, who you're there for either kind of welfare checks or the emergency aid exception to the warrant requirement. Those cases, and those are a lot of those are the many of the cases where people in the mental health crisis are getting killed when people are coming to their aid right. Those are the cases where you may need a shell, rather than a may to accurately reflect the direction of the law. Okay, that's so helpful I really appreciate that clarification I mean I do. And the committee if we could look. Well, anyway, the way I'll hold off for committee discussion on on just the sort of some of those other factors and whether there's ways we could be a little stronger more prescriptive there but it sounds like there's some case law analysis that might prevent us from doing that but I think your testimony was so helpful and so detailed and so so useful. I really appreciate it. Thank you, you're welcome. Great. Okay, so we have Barbara coaching and Martin. Thank you well that I'm going to echo everyone else's comments this is like really exactly the kind of feedback and input that can make a huge difference in this bill. So, I have a couple of questions, I think you raised a great point about impairment. And then the language which I missed and it's embarrassing that we're talking about a mental health defect that's horrible so thank you. The impairment piece I do, I do think that we have people constantly giving people diagnoses that have no training or reason to be able to do that and, as you said it could be diabetes it could be a number of things. So that does seem really important. And also thinking about what Representative Donahue said about provocation, and wondering about, in particular, not permitting provocation in situations where somebody is, for whatever reason impaired or in crisis and less able to not take the bait and wondered if you have thoughts about how that could be addressed. I mean, I just feel like everybody should know that goading is so wrong that it hardly needs to be written into a statute and I think what what what what Representative Donahue was talking about was really about kind of, you know, after the fact holding someone accountable right coming right and saying no this that wasn't justified because you go to, you know, my orientation has always been more like deterrence, because, you know, I'm not really interested in having my family in a wrongful death lawsuit, you know, for me right you know I want to be alive right you know I don't want to I don't I don't want my legacy to be a multimillion dollar, you know, recovery for my airs. And so my orientation is how can we write a statute that decurs, rather than just, you know, you know, hold hold someone liable after the fact. And I really feel like I really don't know if that's really required in the law I think everybody knows that you shouldn't you shouldn't be going people into, you know, shooting somebody you're killing, killing somebody but I think what happens is, and this is this is the problem because in the, in the case of people who are in a mental health crisis with with just poorly trained officers and with such a precedent and because people and with with, you know, presumes psychiatric histories are so discriminated against in this country and so oppressed and that oppression is so in is so normalized, that almost anything an officer does is probably going to be the wrong thing so for example in the case of Phil grinning. The officers came into his apartment, you know, loud voices, they were, they were like within earshot discussing what they were going to do to him, right, they were saying, we're going to taste the shit out of them. We're going to put his ass on the ground, we're going to do blah blah blah. Now all of this to a man who thought he was. I don't know if you all know what Phil grinning actually predicted that the police officers are going to come to his house and kill him. He called up his therapist like week to 10 days before and said I fear that the police are going to come to my house and kill me, and I'm going to protect myself with knives, if they come. In his apartment, he protected himself with knives, he was afraid of them. He was hiding in his bathtub, right, right, he was afraid of them. And so they come into his apartment. You know, after three or four hours and say, all these things within earshot of all the things are going to do to him. Well, in his mind that is, they are provoking him right, you know they, but the police officers wouldn't see it that way, you know they don't see that as going but they were doing so many of the wrong things that all of those things precipitated his, you know, right before they shot them they said they were going to, you know, you know, light them up. Right. But doesn't it seem, because I'm with you about the deterrent. And I know it seems like the police don't need the daisies law but we have seen having watched the, the fellow who ended up dying up at the hospital in the mean, we need to define, I think we need to define what is goading or provoking, and that includes making harmful comments of what is going to take place in your, like, maybe it needs to be spelled out. It seems ridiculous but on the other hand, don't. What's the harm in us defining provoke. I don't know, I don't know if there's a harm I don't even know if it would ever be. We're living in a time when police officers feel under attack. We're living in a time when police officers feel that they can't do anything right. And we but we're also living in a time when the US Supreme Court wants to give, you know, police officers the utmost deference and, you know, think, think that they have so much to do that we don't want to overburden them. There's too many that was largely on a commission that was largely, you know, filled with with law enforcement and what I heard from them was, it's too much, right it's too much. We can't learn all this stuff that you're telling us to do we it's too much training there's too many directives there's just too much there's too much too much. I mean, that's the harm really is probably alienating law enforcement and I don't really think you can prescribe all the things that are going or or what I'm trying to say by my example. Law enforcement officers are actually taught to do things in training that are the wrong thing to do when dealing with someone in a mental health crisis. There is no way to enumerate all of those things. The best thing to do is to train them to, you know, the law enforcement officers needed to know and feel great in his case that people in psychosis actually have pretty acute hearing. We can hear things that sub threshold levels. And so when you're talking 510 feet from us we can hear you saying that you're going to light us up that you're going to taste the shit out of us that you're going to put our ass on the ground that you're going to you know, we can hear that and that's not going to be helpful, but I don't think that you can anticipate all the things that a law enforcement officer could do to a worse than the situation and dealing with a person in mental health crisis I think the solution is through training and not through legislation. Just one last question. A part of it to is is through attitude right we can train all we want but if somebody has very strong bias against people with mental health diagnosis challenges. The training may or may not make a difference. Right, and that's what I concluded and you know the part of the beginning report I wrote that that the really root cause of it was a bias and implicit bias into health challenges. That was that was the root cause of it. But you know the police are not alone I mean the whole society has biases against with, you know, against people with mental health challenges. They are no worse and no better than the rest of us. They just have, you know, more lethal means to, you know, kind of express their biases. So, I'm not I mean I don't I don't feel like it's practical or even advantageous to try to craft piece of legislation that list ways that police officers can antagonize and make situations worse. I think that police officers know they're not supposed to be making situations worse. I think that when police officers do, I think their egos get the better of them when they do. And it has to be, I think, realistically, I think the solution is better training better recruitment. So that's kind of where I fall on that. Thank you. Thank you. Okay, coach Martin and then Selena will thank you as always. Great to see you this morning. I just wanted to offer an additional case. I was hired locally, you know, here in Vermont that takes into account not only a disability awareness component, but also the racial aspect. I was just reading the the case. Basically, you know, I'm familiar with it, but I wanted to refer back to it's the Burwell versus Hartford police case. And this black man was sitting on his toilet at home. The cleaning lady came to do cleaning of the condo. She didn't know who it was. So the police, the police came and armed themselves with assault rifles approached the gentleman come to find out he was in a diabetic coma. So what was that person going to respond to an officer's request as well will the spoke, you know, earlier, when they're in a physical disorder, and you know not knowing all of the other components is this is the house. You know, simple things like that. I support the contention that we need to clarify. I also know for fact that training, you know, has only, let's say, a portion, you know, of the process, it goes back to what not or had said to us representative. I was ashamed when asked if you had one thing that you could do to help in this process. It's the selection process of the officers, because that's where the rubber hits the road. You know, you can do all the training you want but if the person is predisposed to approach situations aggressively, you're not going to get to where we wanted to get to, you know, as far as a change in the policing process, going back again to the Burwell case. When you look at the language that was used by the officers, when they approached him, you know, they used language I will not repeat in, you know, in public, because it's I'm sorry, but that behavior in itself is unacceptable. You know, and so that too goes to what Miss White was talking about with regard to, you know, we can't train that, you know, in or out. You know, that is a human being characteristic. And that's something that, you know, we can do on the front end. So I just needed to share that and thank you again. You know, it's like a, you know, it's like coming to school, you know, every time that you testify, and it's very enjoyable. Thank you. Yes, I echo that. It's the memorable and happy law school days. Right. Okay, so Martin and Salida. Yeah, I just have a quick clarification and then one request. So, as far as having the separate must include total circumstances in the situation where there's a mental health crisis I want to confirm that that that would exclude individuals who have committed a crime I guess I didn't understand the rationale why we wouldn't have that generally if there's a mental health crisis whether there wasn't crime there or not and you are you are muted if you. Yeah, you're asking a really good question. This is a lot like law school. So what the, what the courts have said is, I think if it doesn't matter if they've committed a crime I think where the courts have said like if you are posing an imminent risk of danger to the police and the public and, and you have a mental health condition, you know, obviously, the police officers would be within their right to using, you know, deadly force right so they so so some circuit circuit stop short of saying there's a whole different consideration if you have a mental illness so that's why I separated out those cases where the person is obviously in a mental health crisis but has committed no crime because the courts are really clear there there's a different standard of how when you use force right, but if the person is actually endangering the lives of the officer or someone who's lost in the officer. You know doesn't have to really use a different standard. Under the law. Now, that doesn't under under current law right. They can they can act. And I think the courts mean like if it's imminent right it doesn't mean like in the case of Phil grinning when he's in his house for five hours or four hours right. You have time to deescalate you have time to do things they mean like in the split second moment person you know it you know can't comply. They have a mental illness, but they're threatening you in the moment. Then you have the right to use deadly force using the same objective reasonable standard as you would if they didn't have a mental illness. In all other cases there is some circuit say there is a different standard. Is that clear. No, it does and I guess it. The good thing about being in the legislature is we can go beyond what the courts have done and if it makes sense that if it's a mental health crisis that is not causing imminent threat of death or serious bodily harm. And then we should treat whether the person has just tried to pass a $20 you know counterfeit bill or you know maybe that's a little too close to using that exact example that if there's a mental health crisis, you got to treat it differently I don't care if there's a particular if there's a misdemeanor but you know I think they would say if it's not an imminent risk to death. You know to the officer others, then you do have to use that kind of different. I think that's great. The one request I have is I've tried to find but for some reason haven't been able to maybe I'm not looking right for the report on the Brennan situation and if you have that at your fingertips that you could email it to the committee that would be very helpful. Thank you. So I should create my to do list because I promise to do two things right. I don't mean to be giving you to do list I apologize but this is just like law school, a great report and then the case law that deals with the mental health crisis okay. Great, thank you. Okay so Selena and then coach. I think this might be more. This might this might be more pointing to discussion for another another day really at the end of the day but I really share your observation will do that. Some of the formal de escalation training that police get actually really seems to escalate a situation. And thinking back I was actually a city counselor. When Phil Brennan was shot and did some work at the local level to institute kind of a review beyond what the state's attorney could do at the time of that and I that I think then your work has been so important to to really review that in a meaningful way but I remember having conversations with our police chief at the time where he said, we did everything we were supposed to do we use state of the art de escalation training and one of the examples he gave was like, before we even entered his apartment he drilled holes in his walls for hours. Like, just as someone who has worked with people in mental health crisis and just common sense would tell us like how is that a de escalation. So I think that's a good tactic in that situation and but yeah I, I do believe that they were that to some degree at least they were following training that they had received like at the, at the C and federal level about how to do this and so I, I would like to get it representative. Donnie Hughes concerns about that and to your point that this use of force policies and perhaps not the place to really mandate what goading looks like that we could one path for us through a legislative lens could be to really figure out what kind of death de escalation training police are getting in our seat and make sure that that truly aligns with the best practice and not necessarily best practices just defined by the institution of policing. It's interesting that you, that's an interesting question or observation because in this case of the city of Burlington what I found and was that Burlington actually has a pretty good policy for dealing with people in mental health crisis they just don't follow it. So, the, you know, the commission came up kind of collectively came up with a list of recommendations about what would have prevented Mr Grinn and step, and then I looked at it. And I was like well everything you've written down here, or we've written down here Burlington already has in his policies, they just didn't follow it. And so I think that's another reason why I concluded that their own kind of implicit biases played a bigger role, played the biggest role in his death because they were just kind of cavalier. Like, when he told you that, you know, drilling holes, multiple holes because they kept missing, right. So they would, they would drill a hole and end up in a closet they would drill a hole and end up in a you know, somewhere they couldn't see anything. And they didn't understand that sound to a person in psychosis, which he was can is really really aggravating I mean that's why he, he began in like his living room and by the time that they ended he was in his bathtub which is farthest away from, you know, the front door with you and the door closed and they were also incapable of even. I think even because of their implicit biases they were so incapable of recognizing the signals he was sending. So when they first arrived and they opened the door. You know, using a key and he closed it. Right. He deescalated it, but they couldn't read that they read that as aggression. They didn't read that as deescalation I'm afraid right. They find them hiding in his bathtub. And still they're reading that as aggression because they have this implicit bias that people who have mental illnesses are dangerous. He's standing in the bathtub holding the knives and, you know, the sergeant saw him standing in the bathtub holding the knives and he comes back out to report to del pozo. He's standing in the bathtub holding the knives and del pozo says well is he brandishing them. He goes no they're just at his side. So he's expecting aggression but he's hearing non aggression but they cannot compute because they cannot compute non aggression because of their implicit bias that people who are in mental health crisis are dangerous. Even before they enter the apartment. Phil Brennan hasn't done anything hasn't hurt anybody. Before they enter the apartment, the sergeant tells the officers, you know, be standing by the door we're going to put him on his ass. Right. He hasn't done anything. He's a 78 year old 76 year old man who's terrified. You know he has a sign on his door saying please don't come in here. But they can't read any other signs because of implicit biases and so I mean the point is no matter what the policies are, your implicit biases particularly when you are under stress will trump everything. And I mean that's what happened in this case he did every feel great and did everything to try to save his life. I mean they stood within inches of a mental, you know, as soon as I see him, you know, I'll hit him with this, what looked like a gun. And so when Phil came charging out of the bathroom. He thought he was acting in self defense, which he said he was going to do. And the police did not, you know, they didn't do anything to, to accommodate his mental illness, which the Americans with Disabilities Act requires that's another thing you should understand when you're writing this law, the Americans Disabilities Act does require does apply to, you know, the arrest and detention of people. And, and, you know, in a mental health crisis or, or with a mental illness. And they didn't do anything. And this was like the second time in a few years that it happened the same thing happened in the Burnett case. They didn't do anything they knew personally knew going out the person had a mental illness they go out they do nothing to accommodate it and they end up killing it. Even though they had the same policies on, you know, they had the policy to wait use time as your advantage. They had the policy to take time to get the necessary equipment to protect people. They didn't do it. They had the policy to set up a command post with outside the site, you know, in hearing of the person they didn't do it. They had a, they had a, they had a policy not to use a taser without consulting with a mental health worker, if the person had a mental illness, they didn't do it even though one was on site. They had a policy of consulting with the crisis negotiators before stopping crisis negotiators so you need you needed to get the approval of the crisis negotiators before you stopped crisis negotiations, they didn't do it. The crisis negotiators were preparing another way to reach Phil grinning when they were told by del pozo that they had already decided to make entry. And by the time the crisis negotiator came down to the apartment they were already in the apartment. The crisis negotiators never told Phil grinning why they were there. They never tried to engage him and open any questions. Two initial officers first arrived, one threatened to shoot Phil grinning. So, I mean this is what I want to go to these, I want to, I'm spending the time to go through these specific examples because I'm trying to impress upon you how absolutely great policy will not get applied. You know, when these this implicit bias right these these these things that we just not aware of are operating, and that's what needs to be addressed and Burlington doesn't feel like they have any implicit biases, and so they will never get passed, you know, absent some, maybe some some some some legislative move on your part to compel them to look more inwardly at what they're doing. So, your point is very well taken. Thank you. Great. I'm coached before I get to you I'm just I'm looking at time check and I'd like to keep going and not not break this flow and I do know that that boring is available past 1030 and I'm hoping that Kai will be as well but this is this is really helpful and I think it's important for us to to take the time. I'll be very quick. I just wanted to share the citation, but I'll put it in the, in the, well actually I'll email it to the committee members. And that's the Burwell case, because it was settled. Civilly on his behalf, the race discrimination component was dismissed. But there again, the fact that he was going through a physical episode at the time, and was physically beaten tased and maced while sitting on the toilet because he didn't respond, because he couldn't respond is another example of that implicit bias overriding all of the training. And so, I did want to make sure that we had another instance of the effect on disabilities and the bias. I think you raise a point if I may I'll just briefly respond to because one of the things I haven't talked about here that is worth mentioning is that when a person has a psychiatric history or is a mental health crisis and is also a member of a say is black, the the risk of death is exponentially compounded. Because I'll give you an example. Many years ago I was standing on the Golden Gate Bridge in San Francisco in the middle of the night. And two officers came up to approach me. And they had received a call that someone was going to jump off the bridge. They came up to me and they asked me what I was doing on the bridge. And I said I would just have taken a walk. And they go in the middle of the night and as they get from just taking a walk. And they go well you're on the wrong side of the bridge. You're like, this bridge is designed so you can't get to this side of the bridge how did you get to the side of the bridge as a, I don't know I'm just taking a walk. And so they were concerned they said so one officer is well are you planning to kill yourself. And I said no and the other officer said, of course she's not going to kill herself she's a black woman black women don't kill themselves. And so they just let me go. But before they let me go they asked me if I would show them how I got on the bridge so they can protect people who were going to kill themselves. I've seen time and time again that police officers use their these kinds of biases black women don't kill themselves black people aren't mentally ill black people can act right but not you know you know maybe not in front of white people or I think in my opinion the Sandra Bland case is an example of police officers not giving a damn about whether she was going to kill herself or not thinking she was suicidal because she was black. And so, and if you're a black man, they're more afraid of you. Or they think you're pretending, and they don't believe that. And so race and compounded with psych with the intersection of race and psych after disability makes interactions with police officers more lethal is my point. So thank you. Representative Christie for making me make that point because I should have made it sooner but I haven't because we live in Vermont, but I think it's important for you to know. Thank you. I'm nuts. Nothing in the other hands. Thank you so so much this was incredibly helpful. I'm sure we'll have you back if you're available but to continue this conversation and to continue help us work work through this really really appreciate your your time. Thank you. I really appreciate the work you've done on this bill, because it's considerably better and I want you to record. I want you to know that I see that and I appreciate that. Well thank you, appreciate that. Thank you. Again committee I know this is long time but I, it's a, I think this is a really important flow that I want to continue with and so for Yang please. Great. Welcome thank you. Thank you. Thank you for all for having me here today for Yang for the record and the executive director of the Vermont Human Rights Commission. And first before I say anything about the bill I just want to say that, while I am a member of the BIPOC community, and my personal experiences have informed my work and my commitment to eradicating discrimination. I'm here today, only on behalf of myself, and on behalf of the agency that I represent, which is the Human Rights Commission. I'm also an attorney, and so I'm viewing this bill with that lens. And as many of you know the Human Rights Commission is charged with enforcing the anti discrimination statutes of the state. The Fair Housing and Public Accommodation statute and public accommodations includes roads, hospital schools, and of course law enforcement entities. So I see this bill as a small but positive move forward. And having a clear and well articulated standard on use of force in our statutes serves as a tool for lawyers, such as myself and judges to review police brutality cases. I really appreciated hearing Will does testimony. I certainly think that what we're trying to do here is change those implicit biases and change culture and change those social norms. And we try to get at that at different ways right training policy changes laws. No one thing actually changes social norms. But having said that I do, I am a big believer that social norms can be changed, we do see that we've seen that, and we've seen laws really change that as well. So I am grateful for this bill and I would encourage you to move forward with that. I thought that it might be helpful to kind of clarify how a discrimination case can be proven under our public accommodations laws right now. So in order for someone to prove that they have been discriminated by the police. They have to show that they have been harassed. And the standard for harassment is severe pervasive, which is very difficult and impossible to prove. The other way is to show that they have been treated differently or denied services or benefits, whatever services and benefits that are generally available to the public were not made available to them. They have to show that they were a member of protected class. They were denied those benefits and services that that denial was because of their membership in a protected class. And there cannot exist any legitimate nondiscriminatory reason for that denial, or the complainant and plaintiff has to prove that those legitimate nondiscriminatory reasons that are raised by the police are pretextual in nature so basically they're not the real reason. The hardest elements to prove always is that something happened because of someone's race, color, national origin or disability, and to overcoming the legitimate nondiscriminatory reason that can almost always be articulated by the police after the fact. So how do you prove that something happened because of someone's protected status. Well, you can prove it with direct evidence, such as an officer yelling a racial slur while conducting the forceful arrest. But even then we have a lot of courts that have said well maybe that racial slur was just yelled because they were angry and that wasn't the true motivating factor for the actions. There's a court system to that is looking at the same things that maybe objectively members of the community would look at and go wow that sounded really racist but of course that says, well that wasn't a while the racial slur was uttered it wasn't really the motivating factor for holding someone too long or arresting someone forcefully or denying them a phone call when they should have been given that phone call. So, and by the way direct evidence is rarely available. Okay. We almost never get it, and even if it happens we never get a recording of it or evidence. So what do you do when you don't have direct evidence you got to find a comparator, you have to find someone else who is similarly situated, who was treated differently, maybe better. And that is narrowly impossible. We know that the police treat people differently on the basis of race and color and disability and other protected categories. We have statistics across the country and traffic data here that tell us that we have hundreds and thousands of stories really from BIPOC people about this. More so than ever we're seeing videos of police shooting on armed black men and women but peacefully arresting white terrorists with weapons and firearms in their hands. But statistics and videos of different officers using force does not win a discrimination case. It is not the kind of evidence that courts even admit and allow. At the Human Rights Commission, where sometimes going on a fishing expedition to really comb through hundreds and thousands of arrests to see one if they're available in the first place and that if they are to see if the same officer treated people differently, and what were the different circumstances. And I would just tell you that that makes our job really impossible. It makes it really difficult. The law, the standards, the process is stacked against us. One thing that would be helpful for us is for the police to do this work, to do this comparison themselves. Every time an officer uses force to have the supervisors who are charged and charge of those officers to do that kind of comparison. I get it they have implicit bias and they may not do a fair comparison, but at least we're tasking them with gathering the data and collecting that information so that when the Human Rights Commission has to review these cases. We can say show us the comparison that you have done and give us those videos and give us that analysis, and that allows us to do our jobs better. So my wish I think for this bill would sort of put some responsibility on the police to review every use of force and do an analysis and and do that. My only other suggestion on the bill is on page three starting at line one, it's the, it's part of the definition of totality of the circumstances and under subsection e. It needs factors such as the age, size and relative strength of the officer and the subject, comma the skill level and training of the officer, comma and whether the officer the subject is injured or exhausted. I would recommend deleting the skill level and training of the officer. I think that every police officer, regardless of years of experience to be held to the same standard for use of force. We cannot excuse excessive use of force because of that offers lack of experience. In the same way you're going to conduct neural surgery you have to be competent, and it doesn't matter this is your first surgery. I think the same is true for officers. So that's all I have. I'm happy to answer any question. But want to save some time for my friend and colleague kaya Morris to thank you. I appreciate your testimony and but I do want to make sure that that we do get to to folks questions and and and spend the time we need with you as well. Martin, I see your hand is up. Yeah, thank you very much for helpful. So, I wonder if you have any, if you have anything fleshed out as far as that concept to review review that you could send along that I could perhaps work on and consider whether we can put that in. Absolutely. Yeah, I can send that to you. Thanks. That's seeing. Again, I'm not seeing any hands I just want to give people time. Okay, great. Thank you. Thank you. Thank you so much. Okay, kaya Morris. Welcome. Thank you very much for having me this morning everyone I hope you all are doing well and thank you so much for the previous witnesses. Fantastic conversation such important insights. I think what is really, really powerful on from both and from will does testimonies were around thinking that we need to continue to fine tune this work. There are so many positive improvements I feel to this from this amendment from where it previously was to where we are today that I feel great hope within this. And it does make me have greater confidence in the ability to take some of this on from a legal standpoint. One of the things that I did appreciate within this was the duty to warn the use of deadly force. Again, so it, one of the, I think something that's going to be key is to ensure that what's happening and s124 is enforceable in this one and vice versa. So some of the pieces around police behavior, even around the goading, those sorts of things that falls more into what 124 is trying to do, but you should be using the same standards and definitions across both. And that might be helpful, as well as you can inform that bill in certain places so you know if they are doing what they're supposed to be doing. And if they are using body cameras as they're supposed to be, then you will have that evidence of that duty to warn that was required in this bill if they don't then it doesn't matter. But if we're able to ensure that some of the standards and protocols are put in place through 124 are actually implemented and I you know that's a whole separate commentary that I have to have around that one. That's not necessarily for this particular bill. So I think that that's really important. I think the definitions of force are also really helpful. I'm always uneasy with totality of circumstances kind of sections. I always feel like we still have too much discretion that's able to be used in determining those different standards. I'm appreciative of the fact that you are trying to dig deeper around whether or not you keep it as a shall must may whatever that particular language is because even if I as an individual who may not have a mental health crisis happening I should have protection under the law. That actually should be equal. Right. So because we also have so many different spaces where we can see that the determination of a crime being committed. It's completely up to that officer's determination for them to create probable cause to start engaging and that when that happens to folks who aren't in mental health crisis is it still ends in violence. Okay, so we have to think a little bit more deeply I think around that the suspicions themselves are suspect and as many have talked about it's around implicit bias in many instances sometimes it's just outright racism sometimes it's just outright. You know, just modes of supremacy and power and control. And so there we want to keep a close eye on that. I would love to have more clarification. I think it's through that clarification that we close the gaps between that broad discretion that's able to be used to determine if they're checking off those boxes, and what we're currently struggling with right now. If there is a possibility that might not be. And that again is still a greater discussion around how we're thinking about defunding or, you know, divesting from police to do different approaches other than standard policing to respond to a variety of violence encounters. So the, the, I appreciated representative representative Donahue's comments with regards to goading that are within that are not really there within the bill again I think that might fall into 124. I think that that is not something that we do want to dismiss because it is as mentioned a potential tactic. So, this is, this is moving in the right direction and in a time when people are getting attacked on the streets for trying to find ways to raise attention to this. And I know it's not easy and I know you have some very tense negotiations that you're trying to make with people that may not have an invested interest in changing some of these standards. I did want to, you know, again, I, I appreciate where what board was mentioning around, you know, wanting to find a way to hold the police departments themselves accountable. And again, I don't know if this committee feels like they need to stay in their lane, but if we're going to talk about 124. I think that that's a place to provide comments on that because I don't have any reason. I don't know what public has that members of the public have to trust that that process will be fair and as you know I think that she was very clearly saying in this moment. In this moment this is who we are working with our law enforcement entities that don't necessarily have a vested interest in wanting to do real meaningful investigations into their own people, as far as their actions are concerned. I still worry about that malfeasance that will take place. So that that doesn't you know that doesn't give me the greater assurances that they are going to do that but we do need to get some systems in place. So, for for so on its face what we have here in the bill I think is a drastic improvement from where we were, and I'm really grateful for all the testimony that this committee has taken from members of the public and the community. I'm trying to get this to where it needs to be and absolutely more than happy to be here for future conversations as well. Thank you so appreciate hearing from you. Thank you and this is an on go ongoing conversation for for sure. Martin. Thanks a lot, I still miss seeing you across the table so it's nice to see you across the virtual table today. I just had, I wanted to flag one thing and actually would like your input and perhaps will does because we didn't really touch on this. We're talking about deference and there's a lot of discretion still in the totality of circumstances, but I'd like to page four and paragraph seven, which the intent there and this is where I'd like any work and comment to I guess she's not on still the intent there is actually that that is essentially de escalation and that is actually putting an obligation where feasible for there to be de escalation. And I think that, you know, that is one of the areas where I think we are not necessarily narrowing the discretion but or deference but pointing that that you this is something you have to do, and we're going to put it in the standard and if you don't do it where it's feasible, you're potentially liable. I don't know if you have a comment on that or if will do us a common comment, if that's, if I'm seeing it the right way, if that's clear enough that that's kind of the intent there. Again, I think that the intent came clear on the implementation and so again not wanting to blend the two bills I think that I think that this gives us a touch point to start that conversation to then go back and do the deeper dive. Yeah, I think the use of force policy that needs to be done and made uniform across the state that fleshes this out. Presumably, it will follow what we're putting in here in a standard. I in fact talked to legislative council about whether we need to make that explicit. And Brent said no that that's pretty clear that if we have the standard here, if they're working as I understand the Vermont criminal justice criminal justice training council I think I got that right is in fact working on a policy and presumably they'll follow this and maybe flesh out that deescalation part of that. For sure. No, absolutely. Absolutely. I mean I think and I think what I'm speaking to as well as when we're talking about the totality of circumstances is something that we're looking at after something has occurred right and so still going back to what will do was saying earlier around the prevent the preventative components of this, where are the prevent preventative components that that discretion we need that level of discretion before the encounter begins. And that is so variable that that's where it feels it still feels a little out of touch line and that's not even the right words that I'm seeking to use but it feels distant from I think what a member of the public would need to have greater assurances around that if that makes sense. And so whether or not that's here if that's somewhere else. That's just something that I wanted to bring forth so. Yeah, so I appreciate that so again because yes that that sort of like fact finding of like what did happen if we're looking at the totality of the circumstances, like they're so contingent on everything that happened before that encounter actually began so when there was the decision that that gentleman that black gentleman with autism sitting in front of the fire station was potentially causing a crime of loitering. And that escalating encounter like that, you know that the touch points that we can touch we absolutely should and then where we can it needs to be picked up in other pieces of legislation, but as long as they're also thinking so I think, I think it's going to be important to make sure that your definitions here are lining up with what's going to happen in 124. Thank you. And I don't know if we'll that had any further input on that other issue that I neglected to mention earlier in that kayak kind of brought to mind. Yeah, I'm glad you raised that because I actually was quite heartened by that provision in the statute because so seldom have you written statues and have the word shall. You know, and I think it's I actually think it's a really strong positive probably first in the nation type provision and a user for statute where you're telling people hey, you need to try to de-escalate because this is what I've really wanted from the legislature to actually put a stake in the ground and you say what this community wants to see and I feel like you do that in this subsection you're saying what this Vermont community wants to see is you do these things before you're not leaving it to the cops discretion you're saying as a community, the Monters think that before you use force, you should do these things. And I think that is great. I really do I really applaud actually you're you're including that in such language and putting in you know even the parenthetical if feasible doesn't require doesn't cause me to, you know, be less happy about it because I've never seen it before actually, and I appreciate it. Now, having said that, I do know that you know all of this stuff. That was in Burlington's policy as well and they didn't do it, but I still nonetheless think that that's something that you know community activists can can can use and I think it's great, actually, and I would I hope that makes it through to the end. After you know all the stakeholders way and you know I can see that being eliminated or that shell becoming a may but you know that you put it in. I'm giving you some props. We'll fight for it. Thank you. Thank you. Thank you. Really, really helpful. Thank you. Not seeing any other hands, but Kaia, thank you, and always so so wonderful to to see you and thank you everybody thank you committee for hanging in here. I just want to mention that we do have testimony from Laura Ziegler and Michael say born I hope I'm saying his name correctly but they are mental health advocates and Lori has posted them so as I've reached out to people some people are are sending written testimony and and and not joining us on zoom. However, that testimony is very and then want to make sure that that folks see it and and Lori remind me if I don't mention it, and some things posted please please help me remember to point it out to folks.