 Hi, this is Representative Maxine Grad, Chair of the House Judiciary Committee, and we're calling you for your testimony on age 610. Okay. Great. Thank you so much for joining us today by phone. You are joined by the entire Judiciary Committee. We are in room 10, which is a larger room. So there are people here in the audience, as well as other witnesses who are testifying. And there are at least two members of the media here that are filming. And there may be other people in the room that are filming as well. Okay. So, welcome. And please start. Thank you. Okay. Okay. So as you mentioned, my name is Mariah Gray, and I have a body of sort of age 610. My mom was born with a gray, a fairly remarked, and she was killed by her husband on August 13, 2013. There were several incidents leading up to her death with violence in the house. And I think this bill would be very helpful for women in situations like my mom. Sorry if there's background noise, my daughter said to go, she'll see you on the phone. You're fine. So, leading up to the incident, there was police involved several times. And it was under the assumption that the firearms were taken out of the home. But we never had proof of that. We could not get into the gun safe to know. It was a thing that they were taken to his brother's house. In the meantime, he was staying somewhere where he could access firearms, which was also if we shoot. There were several times that he appeared out the house with a weapon and threatened to do what he ultimately did actually twice. And my sister interfered with that. So I think that if we could have had more support in making sure that it was more challenging for him to obtain a weapon that my mom might still be here. And then while she looked good through restraining orders, but they had the opposite effect that we would have hoped. So they made him more angry and more threatening. So she ended up dropping them both times. But he did break them several times when they were in place. And she did not report them because she was afraid for her life and our life as well. So she only said that she was going to stay so that he didn't come after her children. So I think it's really hard for somebody that's in the situation to step forward and, you know, say what's happening because they get the backlash once the police leave. But I think there should be some more stronger support system in part as making sure that what's happening with the weapon is carried out and not just by word of mouth because somebody that's doing this to their partner is obviously not going to be honest, which is exactly what happened in the situation. I don't know where the gun was going to be used because he had access to several. But they were at his brother's house since he could have easily went there if he was similar to Sam where they had firearms as well. But I think when it came out what would use the gun was his gun. I think that's really all I have. I think that this word's helpful. Is it going to save every woman in the situation or man? No, but if the person has to think longer and try harder to get them open, I think it might make them think about what they're doing. If they have it, they might just go act on their anger at the moment. Thank you. I'm not sure if there are questions, but are you willing to take questions or would you prefer not to? No, it's fine. Barbara, we do have a question. Thank you so much for testifying. I'm sorry for your loss. It's really unfortunate. Do you think that there were other things along the way that might have helped prevent this, like even before it came to the situation that we should be thinking about? Probably. I mean, there was the police. I can't remember the exact number of how many times that they came, but I think that it wasn't... I don't think they took it very seriously. And they tried to say that they told my sister, if you aren't honest with us and look at what's happening, that you're going to find your mom dead. And I think they were just trying to scare them into talking, which doesn't work. And they brought the dog to our house once and searched for him, and he was in the closet and they didn't find him. So then he thought it was a big joke because he could hide and nobody was going to find him. But there was a lot of factors, but I mean, still in the home that we found after the fact. So it definitely is a big part of it. Like even in terms of a safe place for your family to be when this was going on, or just anything that would have provided more peace of mind given the situation. Right. Yeah, so I actually moved out two weeks prior to the death because I was afraid. I went to get a restraining order myself because I was afraid. I was the one that called the multiple times. So now I was a target also. So one of the nights where he came with a gun, he actually was stood by my window with the gun. So I decided that it was time for me to prove myself in the situation as I was only 17. So her biggest thing was that she wasn't leaving because she didn't want him to come after us if she went to a safe place. So maybe if all of us could have won, I don't know. But her other thing was that she didn't want it to become a big public knowledge thing that she just wanted them to go their separate ways and be done and not have that side get the backlash of anything that was going on. Because Representative Maxine Gratigan, you had mentioned that your mom, you said ended up dropping them. And I think you were referring to the restraining orders. And I'm not sure I understand that. Did you mean that she didn't go for the final? Can you help me understand what he meant by dropping? Well, she had the restraining order, but she didn't pursue the charges or anything because he threatened that if she didn't, that if she did, then he was going to take her life. So she never pursued anything. He was supposed to go to court, I think, on September 22nd, sometime in September, and he said that he wasn't going to live to see it. So I guess. This is Representative Gratigan. So thank you so much for speaking with us. And I, too, am so sorry for your loss and your courage in being public and coming forward. And this shouldn't have happened. No, I agree. But hopefully we can save some other people in the future. So too. Thank you very much. Take care. Thank you. Bye-bye. Okay. Mr. O'Donnell. I'm here in support of the age 610 third of 2018. My sister was shot and killed by her ex. My sister's story is a long one. I tried writing something, but I didn't know where to start. I'm here today, but I'm going to tell a little bit about my sister's story before. My sister did everything trying to protect herself and the kids. She tried everything by going to the laws, going to the court. The system was enough to take the guns away from the guy. Even 48 hours before the incident happened, my sister already had moved out of the house. She called for help because he was there. And he was threatened to go upstairs and shoot the whole house. She called for help. The officer responded knowing that he does have guns, but it was not enough to go ahead and take the guns away from him. Before my sister moved out of the house, he got arrested for something else. It took the guns away from him and handed back the guns. And from there, days later, my sister called, looking for help. I stand, look, because of his case coming out, he's acting even more violent. He's saying he's going to blow my head off. Help, please help. That was not enough to help me. I'm not here today to save my sister, but I know there's other people out there that can't be saved by this. This is something my sister will want to do. It might be too late for us, but it's not too late for all the families out there. There's a lot more people out there that can be saved by this. I'm not here to ask today to take guns away from people. I'm here to make sure when we do that, we know who should be having a gun and when to take away from them. We can save all the people. It might be too late for us, but not for all the families. Thank you. Would you take questions if there are any? Thank you for coming forward. I know this is, I can't imagine how awful this is, and I appreciate your willingness to be here. I have the same question for you that I had for the woman on the phone. What else might have been helpful that we as a state could be doing to keep your family safe? What the state can do, what the system can do, is make it easier for not just for maybe even the officers to see something, especially for this guy here. They know he was a bad guy, but they didn't have enough to take the guns away from him. I mean, the system just can't be that blind to not know that this guy is not a good person to keep handing down the weapons. 48 hours, she called for help, but nothing happened, even though he does have a gun in the car, and she told them he's got guns and ready to use that anytime. Even in video, he's going to pull her head off, and that's exactly what he did, but it was not enough to take the guns away from him. And she was not the first one to come forward with this. How much more did the system need? Thank you. Thank you very much, and thank you for your courage and coming forward to hopefully help others. We're so sorry this happened, and do what we can to work, and to work with you to prevent other tragedies like this. Thank you very much. Ms. Root and Ms. Johns, do you want to? Yeah, we can get another chair. So we're going to get some water. I'm sorry, we have water ready for the businesses. We are testifying today on behalf of the Domestic Violence Advocacy Group, Courtney's Allies. Thank you very much for allowing us to come and speak today, and to share our experience and support victims of domestic violence. My name is Alex Johns. I am the Treasurer of Courtney's Allies. Okay, take your time. Our organization was founded in 2018 after the shooting and murder of our dear friend and longtime state employee Courtney Correo. She was 29. On July 4, 2018, our lives were forever changed when Courtney was shot and killed by her partner. The events that led to that day were incredible and preventable. Courtney had left the abusive relationship seven months prior to her death. She had taken all the prep steps to remove herself from the situation. She lived in an apartment with myself as her roommate. Courtney loved life and was excited about every day, but she still lived in fear and took precautions because she knew her ex-partner was dangerous. She had spoken with people in his life about her concerns with his behavior and stated that she was scared because she knew he had a possession of firearms. Her pleas for help were ignored because people close to him did not believe he could be a threat, and in fact, he was. She had also asked his roommate to hide his gun because she was in fear of what he may do. Because he had access to a firearm, he was able to break into our apartment at 7 a.m. and shoot her multiple times. Had he not been in the possession of a firearm, the events of that day could have turned out very differently. This event divided our community and destroyed the lives of those close to her. A group of Courtney supporters came together after her death told a vigil for her. It was after that we decided we wanted to keep fighting for her and others like her. This is when Courtney's allies was formed, and since then we have dedicated ourselves to raising awareness, fundraising, and engaging the community in her cause. Today we are here to advocate for change at the legislative level. My name is Kate Root, and I am the vice president of Courtney's allies. Stories like hers are not unique as we know from her testimony today. Access to a firearm by an abusive partner increases the risk of death for victims by 500%. Courtney was planning to seek a protection order, but she was fearful of how her ex-partner would react knowing that he owned a gun and other weapons. A gunshot is an easy and a permanent solution to a toxic and temporary situation. Possession of a firearm by an assailant makes situations like Courtney's extremely dangerous. As it stands, we have heard stories of victims and survivors that refrain from getting a protection order against a violent partner because they do not believe that the order holds any weight. Bill H-610 would change that as any abuser with a protection order against them would have to surrender their weapons and their guns, and they would not be able to purchase a gun while the order is in place. Restricting access to firearms will make it that much harder for a domestic abuser to enact moral harm to their partner or ex-partner. When Courtney's allies was formed, our intention was not only to fundraise and raise awareness, but also to push for changes in how domestic violence situations are handled and prevented. Our vision is to see zero domestic violence-related murders in the state of Vermont every year, and the passing of Bill H-610 could only help bring our vision to light. Conceivably this bill could empower victims to seek protection orders knowing that action will actually be taken to increase their likelihood of survival. And thank you for your consideration and giving us this platform. Thank you. So the red flag law or the extreme risk protection order component of this bill seeks to expand to family members being able to seek removal of firearms if an individual is of extreme risk to themselves or others. Could you comment on that particular aspect, Bill, how you see that might assist in these situations? Well, just from the first testimony earlier, she said that she had been the one to call the cops so many times and that she was in fear of her life and that's why she left the house. So in her situation, I think that that would have been definitely helpful and it would be something that would be beneficial in the future to all people in this situation. I'm going to ask you the same question because I'm curious again. And in Courtney's case, obviously she had left her partner for seven months, though, and are there other laws, changes, resources that the state could or should be doing that would have made Courtney safer? I think I believe on July 1st, three days prior, there was a law that was put in about online stalking or online harassment and unfortunately it wasn't soon enough in her case, but I think that is definitely a huge thing because he was harassing her via text messages, Facebook messages, social media. So I think that had been in place prior, that could have helped, but now that it's in place hopefully that will help somebody else. Yeah, so recently I was reading an article in one of the local news outlets where a man was accused of domestic assault and he was only arrested when they found out he had a fixed fire license. So to me, I think that it would make much more sense that if someone is stating that they're being abused or that they're in fear of their life, maybe you should make an arrest at that point and not have to look for other ways to take that person in. Because to me that seems like a bigger offense than having an expired license. Writing notes are kind of around that same thing. I'm not looking for any answers right now, but at some point through all this testimony, I don't remember what the penalties are for violating a restraining order, whether it's using the phone physically showing up, the online social media stuff, or even threats through another person. So that's one thing I'm interested in because to get somebody potentially out the street for a short period of time, a cooling off period, could be really beneficial. If he had been in custody, when he was on his rant, it would have been different. If someone could have said, he's acting crazy, he's threatening me, and that would have been enough to take him in. That could have been really helpful for him. So when did this happen? I'm sorry, I don't know. July 4th, 2018. Thank you. Again, thank you. I'm sorry also for your loss. And thank you for organizing and being a voice for not only for Courtney, but for others. Take care. So is Dr. Versati here? Take a quick recess. Good morning. I'm the director of the chair with the attorney general's office. As the committee likely remembers, the attorney general himself came in and testified last week on this issue and gave general statement with respect to strongly supporting this bill. So I won't go through that again and the individuals that you've already heard from this morning have certainly lent more weight and gravity to the importance of this issue than I possibly can. The committee also heard from Sarah Robinson with the network who gave a good overview of the policy issues. So in light of that testimony that you've already heard, I'm going to continue finding my remarks this morning to some more technical aspects, legal aspects developed and hopefully answer some questions if there are any. I will address the warrant requirement primarily in this bill. That is one of the key aspects we have to address and to be sure that we are moving forward in a manner that passes constitutional muster. I won't bury the lead here. We do think this passes constitutional muster. The language around the warrant requirement that you see that was put into both the temporary and final order amendments in this bill. It's actually taken directly from a... It's taken nearly directly from a New Jersey Supreme Court case. New Jersey has a statutory scheme that's very similar to what this committee is proposing in this bill. It allows for a warrant to issue essentially at the same time that are relief from abuse order issues. Again, that is very similar to what we are proposing to do here, essentially the same thing we're supposed to... We're working on doing here. And whenever we get into issues of taking property, potentially entering somebody's home, those really rub right up against fourth amendment issues, and we have to be careful that we are within the law on those issues so that any bills don't get struck down in the future. The New Jersey Supreme Court, in addressing their statutory scheme, held that the courts had to meet certain requirements in order to issue a warrant. Well, they decided a couple of things. One, they decided that you did have to issue a warrant in these circumstances. A warrant exception, or I should say an exception to the warrant requirement would not apply to this circumstance. This bill has been modeled to take that ruling into account. I should take a quick step back here and note that even though the New Jersey Supreme Court piece would not be binding on the courts of this state, generally courts look to similar rulings. Even if they're not binding, they can be persuasive on a court and because of the similarity of these two statutory structures, it's reasonable to expect that a court will take this ruling into account and we are giving the same thing in this legislation. So the New Jersey Supreme Court did decide that there does have to be, there is no warrant, an exception to the warrant requirement, a warrant does have to issue whenever a warrant issues, it has to issue upon proper cause. And the New Jersey Supreme Court decided that there are three primary factors that have to be met. And you'll see, I believe the first mention of them is on page 7 of the bill was introduced and lines 4 through 8 contain those three requirements. One is that there are firearms that defend possession, ownership or control at the time the order is issued or while it is in effect. Two, the defendant is committed to an act of abuse. And three, a search for and seizure of the firearms is necessary to protect the life, health or well-being of a victim on whose behalf the ruling is sought. And the court decided that if probable cause is found with respect to those three elements, a warrant can issue and law enforcement officers can seize weapons. When a warrant, one of the underlying bases for issuing a warrant is what the Vermont court language has sometimes phrased it that a person of reasonable caution would think that an offense has been committed and that there is evidence of that offense in the place to be searched. And that analysis will be a part of these decisions as well. So they'll look at these factors and also say, is the place that you are asking for a warrant likely to have weapons? So the warrant will have to have reasonable specificity with respect to the place. And that is, the information gathering that will have to be done is partially, the option for it is provided for in the bill with respect to when somebody makes an application for an RFA. But additionally, it may well be the case that there will have to be further information established during a court hearing if a court is going to be able to issue a warrant. As a larger matter, I should say, it's important for the committee to keep in mind that it's not necessarily the case that a warrant is going to issue in every case. It's entirely possible that an RFA could be issued. There's enough information to support that and meet the standard for that and that there won't be enough information to meet the standard for the warrant to issue. Or, of course, it's possible that there's simply weapons aren't a part of the situation, that that is also a possibility. But the committee should remember that because we're adding this warrant requirement, adding this possibility that a law enforcement could go in and get weapons, it does not mean that's going to happen in every case. It won't happen in every case. There will be cases where either there are weapons genuinely seem not to be involved or there isn't enough information for the warrant to issue. And I, you know, judges will do what they do all the time, which is make assessments about the evidence and reliability of that evidence to determine whether they can meet the standard and issue the warrant. And David, excuse me, is that the reason for the may, the permissive language that the court may issue a warrant? Yes. I mean, so it does say that... And it should not be shall. Well, I should say that there is a shall for the relinquishment part of it. But the court on, and just to make sure we're not getting the two things confused. So if you look at subsection A on page, or I should say 3A on page 6, the court will order the relinquishment. But if you go to page 7, the court may issue a warrant because it certainly would not be constitutional to say the court shall issue a warrant since they do have to make that assessment about the evidence. The relinquishment would only happen if the warrant was issued, right? No. So the relinquishment order will issue, and the person will be under an obligation to relinquish weapons. And there's no constitutional issue there. It's an order for somebody to do something that the legislature is saying the court has the power to order that. But there's no issue of state actors trying to enter somebody's home or take somebody's property. That's where we run into the Fourth Amendment constitutional issues. So the relinquishment order is not a constitutional problem. The constitutional issue that we have to make sure we're addressing properly is the warrant. Right. I wasn't sure what the process was and the steps. Because the average person, I guess to me anyway, would be warrant first, then the order for relinquishment. But I understand what you're saying now. I think actually, thank you. I think it might be helpful maybe if you go back to the language or give us a scenario to really help us understand step by step. Sure. So real quick, is that happening now, the relinquishment? It can happen now. It is not required for it to happen now. So, sure, let me give a hypothetical of what might happen. Somebody comes in, fills out the form, and let's say it's a daytime. To keep things simpler, the court is open. It's a daytime request for relief from abuse order. And let's do the emergency relief from abuse order to start with. The person goes in, asks for the relief from abuse order. The court finds that there is sufficient evidence to issue that RFA and they add conditions to it. And in the statute, there's a bunch of different conditions they are allowed to put on the order. The standard ones are what we would call in the colloquially stay away orders, saying you have to be a certain distance away or can't be in a certain area, the subject of the relief from the sort of the respondent has to stay away. Or perhaps there might be conditions about where people can live. There might be sort of temporary custody orders issued. So all of those things are your standard relief from abuse order process, all of them might happen. What this bill is saying is that in addition to those standard conditions that might be placed on a relief from abuse order that are happening now, there will also be a relinquishment order for weapons. So that's sort of the first step. We have somebody coming in, if there's enough evidence, the relief from abuse order is issued and it is issued with conditions. What this bill also does is say, well with respect to the weapons issue in particular, they are going to give the court the power to decide whether it is going to issue a warrant. And now we come to a second decision point which is, is there enough evidence to issue the warrant? And that now we have to go to the probable cause standard, which this bill will have the three prongs that I spoke about a few minutes ago and also the standard probable cause analysis of whether the evidence being sought is in the place where, you know, it's reasonable likely it's in the place specified. There will have to be those prongs met as well, those prongs will have to be met as well. So that's sort of the, and then after all that, issue the warrant and the law enforcement would act in accordance with the warrant. So that's sort of the process. You've got complaint order issued with the convention conditions and then as a new additional process potentially a warrant issuing, but the warrant does not necessarily issue and if the order does issue. Was that what you were looking for, Chair? Yes. With the RFA, I just want to clarify for myself, with an RFA the relinquishment becomes automatic for firearms. Yeah, under the language of the bill. So a question that I have overall with RFAs, if it's a couple that's living together and there's an RFA, of course you're supposed to stay away, why aren't vacate orders issued at the same time? To me that would make sense and possibly put a little more teeth into the law, you know, into the people separated. No, that's a good point. In vacate orders can be issued under the current law and I believe that they are being issued under the current law. At the same time with an RFA? That's right. Is that what you mean by stay away? Is it vacate? It's not necessarily the same thing, but the vacate order can be issued under the current law. Right. So that leads to another question that I had written down the other day and thank you for saving this. Say if a person has an RFA and they have firearms, whether it's one or a collection and a vacate, the premises has also been ordered, so they're separated from their firearms. Do the firearms still get confiscated even though they're not living at the premises anymore? So that's a good question and the question you're raising about where the firearms will go and who will keep them goes to another statute which is already in law 20VSA 2307 which is referenced at line 10 of page 7 on the bill and that already has a process for relinquishment that applies to other situations that are already in law. That process does, I should say it favors, it defaults towards having a law enforcement federally licensed firearm dealer hold those weapons but it does contemplate the possibility that a third party could hold the weapons as well so that option is available and I suppose, sort of thinking about hypotheticals here it's possible that a judge could find that a third party at a home is sufficiently where somebody's vacated is sufficiently in control of the weapons. I think that's going to be a very case specific inquiry and a judge is going to have to make a decision about whether the individual who controls those weapons is actually going to carry out that order in an adequate way. Yeah, sure. The penalties for violating a restraining order or a vacate, I'm going to assume they may be a little different I guess whether somebody is using a phone physically showing up threats through another person of course in this day and age, the online social media harassment what are the penalties? Let's just stick with RFA so we don't complicate it too much and so I guess what are the penalties for violating that? So if you do violate an RFA you could be charged with a crime for violation of abuse prevention order that's the name of the crime actually it's a misdemeanor I don't remember off the top of my head maximum penalty of one or two years but you do now enter into the criminal court territory or charge of the crime and VAPO's have long term collateral consequences as well VAPO, can you? Yeah, consequences beyond... Oh sorry, yeah, VAPO is the slang acronym for violation of abuse prevention order sorry about that and for example, they are not even though they're a misdemeanor they've expanded expungements those are not eligible for expungement so those are even though they're a misdemeanor they do carry some long term consequences One thing he said that I kind of have a problem with is he said long term ramifications and what we're trying to address with this bill is the immediate threats And I think just to give context there any time you get in the criminal court you're talking about long term ramifications so it's not so much about what this bill does or doesn't do it's that once you've committed a crime or are charged with a crime it doesn't really matter what it is you're entering into some potentially long term ramifications and that's what I mean by that No, I realize that I have a few questions I'll start with the easiest one What is the New Jersey case, the citation of it State v. Hemingway and I can get to the number State v. Hemingway H-E-M-E-N-W-A-Y Yeah, and if you can send a case on our system and have it part of the record So, a couple other questions So if there's an RFA issue without the requirement that weapons must be relinquished perhaps because it's shown that the person doesn't have any firearms there's no evidence that the person has firearms What would keep that individual from subsequently purchasing a firearm getting a firearm in some manner Well, so the relinquishment order still includes the relinquishment order is not optional Well, under current law I'm sorry, under current law if the court doesn't issue or doesn't put that in the order that firearms must be relinquished what keeps an individual from going and purchasing a firearm There wouldn't be anything that would prevent that individual from doing that So, relief from abuse orders are put on the instant background check system Are those only relief from abuse orders that include a prohibition of holding firearms? So there is a federal Yeah, so we get into the issue of what federal law prohibits and federal law does prohibit somebody who's the subject of a and if I'm going to characterize this incorrectly I'll have the network correct me but I believe it's a relief from abuse orders for which a person has noticed and has been served So when we're talking about temporary relief from abuse orders that would not be covered under the federal prohibition would not cover Even the federal prohibition would not cover that That's right So if you could just comment on the fact that we're in a civil court context and really warrants fall under criminal law generally speaking So a couple comments on that This was an issue that the New Jersey Supreme Court confronted as well Essentially, it is possible and it is legally permissible under the Fourth Amendment and under federal Supreme Court case law that civil warrants can issue to enforce civil violations So that is something that is permissible and is allowable and the New Jersey Supreme Court essentially held that sure, there hasn't necessarily been a finding of probable cause of a crime here because it isn't in criminal court as you point out But it is allowable to have civil or administrative warrants They still do require a probable cause finding But because a relief from abuse order is issuing and therefore there has been a finding that there's a necessity for government intervention essentially that is sufficient grounding for that civil or administrative warrants Again, that was the grounding for State v. Hemingway I would add one thing there will be circumstances under Vermont law assuming the bill passes as something similar to what it is now It does include intervention of prohibited persons in an expanded federal law requires right now So if you look on page 10 of the bill at the bottom there, section 4 it does now make somebody a prohibited person even if they're subject to an emergency order as well as a final order Now the significance of that is that you know, a violation of that is a crime as soon as somebody has noticed they are and they retain possession when they're not supposed to they are now committing a crime So there is a sort of criminal basis However, there are going to be circumstances and let me back up I skipped ahead of thought So if you're in a courtroom and an order is issued and the respondent is in the courtroom they are considered under Vermont law at that moment So in the courtroom you know order served, respondent is there they are now a prohibited person and further retention of weapons is a crime and so you can say that now there is probable cause for traditional probable cause, criminal probable cause underlying that order in those situations or I should say underlying the warrant if the court then moves on to the next step and decides to issue the warrant in those situations where a respondent is not in the courtroom there is going to be that gap where you're going to have to have service before the order takes effect and that's where we get into the where we do have to rely on the civil or administrative But again, that is permissible under U.S. Supreme Court law Judge Greerson who I know is up to testify soon can correct me if I'm wrong I don't believe the Vermont Supreme Court has really addressed that issue directly but I could stand correct on that my review of the law showed that where the Vermont Supreme Court could have talked about civil or administrative law, they generally chose not to find a warrant requirement at all and in this bill we're not trying to push the legal argument that far to say that there is no warrant requirement the bill does contemplate having a warrant So I do have a couple other questions but they kind of are a little more tangential so I'll ask those after folks have had a chance Martin actually asked the questions that I was about to ask and we have Matt and Barbara I knew this committee so I'm trying to figure something out Could you tell me what an average relief for a view sorter looks like when it's issued what's included in it I can tell you what it could be issued I feel like I may not have enough knowledge to tell you what an average relief from a view sorter might be and the network may be and we do have the form it's not filled out but we do have the form on our on our page but I can tell you briefly some of the things that may be part of a relief from a view sorter most of the time what does it include so a very standard condition would be the stay away, what we call the stay away condition which is just saying you won't be an X number of feet or you won't enter a certain town or neighborhood whatever the geographical or physical distance can impose, that's reasonable and so that's sort of I would say like the fundamental basic relief from view sorter, there's also usually no contact order or there may be no contact order that gets issued and that no contact order would include all the various social media forms of contact, telephone contact, things like that the reality of a lot of people's lives is that if there are kids involved there may have to be some limited communication or relief from a view sorter may contemplate limited communication or limited contact for those purposes and it could as we talked about before, include vacate order, somebody has to leave the premises of a certain place it also does have a number of provisions around child care so even though that's child care and custody issues are usually dealt with in different forums or I should say under different court processes it's not necessarily not a different forum there are sort of temporary measures that can be put in place under the relief from a view sorter so those are all things that might issue on a relief from a view sorter and they're basically assuming the court because you're dealing with people and the different circumstances those people are going to sort of weigh out what the best ways to keep the party safe from the other and then sort of tailor a group of protections around that person essentially so the one thing that I've been trying to sort of figure out is why why in a situation where you're sort of evaluating a relationship or a formal relationship or some sort of dangerous situation between two people why would you why the why the shall in that one instance this really goes back to the testimony that was given last week and that's about the exceptional danger that are that victims or survivors may be placed in when it comes to firearms the data is pretty compelling on that point it's compelling both in the sense that where firearms are present there's a significantly higher rate of lethality that we find in these situations it's also compelling in the sense that the hours and days after a relief from a view sorter might issue are especially lethal for victims and survivors and that a significant percentage of that lethality comes from firearm use so the I think it's a very fair question I think that the policy behind it really has to do with the data that we find and by data we need it's a dry word but we need the lived experience of human beings who have suffered and the guns present in the home or access to guns for somebody who is an abuser is found to have committed acts of abuse under a relief from a view sorter that's an especially dangerous and lethal circumstance a potentially lethal circumstance and it's one that as policy matters this bill is being written because there's a recognition of that danger the special danger I should say and that's why I believe it was drafted with a shell could could a similar outcome be achieved by having the shell that the court needs to evaluate that situation could a similar outcome be achieved if the shell is to have the court evaluate whether that's an issue do we think the court I mean because I mean what I I'm torn here between wanting to make sure that we're creating a situation where victims of domestic violence are safe and feel that they can get the relief that they need and I want to make sure that regardless of where a person goes to court or if they know how to advocate for something that it's being looked at at the same time I'm just really uneasy with this carving out one thing and saying that that has to be evaluated so I'm trying to get to a place where I can find a way to ensure that regardless of where someone is seeking a relief from abuse comes into the court system that this issue is getting looked at I hear your concern I think that again as I mentioned we are supporting the shell language because of the special danger that is presented by these cases and by SIRAR the policy outcome that we would like to see from this bill is to ensure that wherever even possibly necessary weapons are being removed the concern is that that isn't happening sufficiently right now the people aren't sufficiently educated about that and we need to make sure that that's happening an outcome that assures that is what we support I understand the only other way I can take that is a lack of faith in the court and if you make a shell for evaluation of firearms and then you say that you're still worried about it that is inherently saying that there's a lack of faith in the court system to get it right I don't think I would say a phrase that is a lack of faith in the court system I think the issue is that the individuals who are involved in situations of domestic violence may very well not know what folks who are expert in this area do know which is issues about lethality, issues about danger and so they may not bring to the court the evidence that a court needs to make the decisions that would keep that person safe I understand and that's why I'm suggesting the court shall evaluate that's certainly a policy option that is open to you and one that you can consider again we are supporting the shall requirement because of the reasons that I spoke about a few minutes ago so just follow up on that I do comment on what I'm saying as far as having this direct question but it seems to be a belt and suspender approach what we are doing in this bill that passes as it is is we are making the possession of firearms if there's a relief from abuse order issued a crime that's what's on page 10 so the person is not to have firearms period but by having the shall you're making it very clear to an individual that they're not allowed to have firearms they're not allowed to possess them because it's criminal to be possession one might say well you don't need to because it's criminal but for extra security in the situation let's put that forward that you shall not have those firearms because it's criminal I don't know if that made a lot of sense but maybe you can make that more sensible as far as what I just said I think your point is a good one which is that it is a belt and suspender approach if you're adding in what's on page 10 it makes it a crime anyway the reality is that enforcement is important and the relinquishment provision combined with the warrant provision in the in Title 15 in the RFA statutory sections are important to making sure that there actually is effective enforcement of what is you know what would be a criminal act the letters on the page are important it means that if something goes wrong you can hold somebody accountable but the letters on the page do not have the pre-emptive enforcement power and when I say letters on the page I mean the letters on the page in Title 13 where you're making a crime to possess if the order is out there you need actions that are being allowed that the state can perform in order to make sure that somebody is safe and that's what the relinquishment and combined with the warrant requirement allow for is not just letters on the page saying if you do this it's a crime it's saying we are going to make sure that we're keeping people safe So David I want to sort of be crystal clear on if it's a temporary RFA and it says no weapons that's not going to be sent off to that person's name is not going to be on the list so if they relinquish their guns they could go to Fred's gun shop and buy a gun right away the federal coverage doesn't apply to the temporary the federal prohibit person does not apply to the temporary stage and under this bill would they be able to do that not legally no the question of enforcement and making sure that names are in the proper databases is an operation the one that I think we do have to think about legally speaking but legally speaking legally speaking them people as you said break their orders a lot so it's still very easy for someone to purchase a gun under a temporary operational aspect of how we make sure that the people are in the correct databases is frankly one that I'm not expert on and I refer you to folks who do that in Department of Public Safety so the two pieces that I kept hearing this morning from families was people being fearful of getting a relief from abuse order or reporting that it was broken do you see anything in this bill that's going to make it make that any different you know I don't want to oversell this bill as a panacea for some deep and serious challenges we have when we serve folks who are in these situations I think I would like to us to be able to write legislation that removes all fear from types of situations I don't know if we can do that what I do think this does though is it does provide the state provides police departments with the tools they need to do what they were trying to do and at least one of the cases that you heard about this morning where they were trying to do the right thing and take weapons away and had a lot of trouble doing so and so I do think that this provides a tool that law enforcement and advocates can bring to survivors and say we know this is challenging maybe a fearful time but here's yet another tool that we have that we can help and hopefully that does ameliorate some of the challenges so that last question which is I keep hearing time and time again not just from people this morning that when they call law enforcement it is not taken as seriously or as dire and I guess I'm wondering how we change that and again I think that's a really big a bigger question beyond what we've written here I do think this is an important tool but I think it also is training for law enforcement perhaps increased training for law enforcement more education for and that includes dispatchers and the folks who are answering the phones that includes the social workers who may be embedded with police departments I think all of those are part of the bigger picture and that is additional work we need to do beyond what's here I have two questions and one I think is pretty quick so I think I heard you say just on the issue of issuing warrants in the Civil Court that there's a correction on that in the New Jersey Supreme Court decision but also that maybe there's some general case law that was instructed in that way I'm just wondering the US Supreme Court has stated very clearly that civil or administrative warrants are allowable it's something that's necessary when a municipality in a much more mundane example might be trying to enforce zoning laws or something like that just because it's not criminal action doesn't leave the government without any ability to enforce rules and regulations so in those cases civil warrants even those who are not civil warrants can issue okay great and then my second question and maybe this is a question more for other way this is to but just to some of the current concerns we've heard how what do we know about how much variance there is and how judges around the state are currently re-equishment in RFA wars certainly the like you can evaluate it premises there is there a very strong variability from court to court to other witness I don't have the I believe there are other witnesses who can answer you on that and I don't have that information David excuse me do you know if there's any information out there about RFA's that are violated with a murder resulting if it's the first time somebody violates the RFA because some of the testimony I heard today was there's an RFA or vacate order whatever the orders and there's violation violation violation violation violation then the murder and I'll kind of go back to what I was bringing up before that it seems like there seems to be more teeth in the RFA which I think would go further to protect people than confiscation because if there's more teeth in an RFA to you know physically remove somebody from a from society you know for a short period of time that if they I mean if they're in prison they can't they can't murder somebody you know they can't violate the RFA anymore because even if the guns are confiscated there's ways to get a firearm whether somebody uses a knife or their hands and the strangulation is a big thing with domestic abuse so not that I'm asking a question or looking for an answer for anything but I just keep going back to that that a violation of an RFA there's there's no teeth in it well I think you raise a really important point generally about making sure that how do we make sure that people are protected in our ways I do think the violation of abuse prevention order offense is you know those are teeth and it may be the case that we need to do a better job of making sure that violations are being found out about that we have more supports for survivors so that they supports for survivors so that they can report you know I think there's a bunch of steps we can take and I'll be in legislation but I think you do raise a really important point I do think the violation of abuse prevention order of crime is part of the answer and taking that seriously is something that we need to do because here on page 10 the way I understand it on page 10 and 11 persons subject to relief from abuse orders prohibition on possession of firearms that a person who violates this section shall be in prison not more than two years or fined not more than $1,000 that's the penalty for violating an RFA that's the penalty for violating the for being in violation of the prohibitive persons statute which is what you're seeing on 10 and 11 which means exactly what so the provision in section 4 on 10 and 11 are saying that if you are the subject of a relief from abuse order and you do possess ship transport or receive a firearm you are committing a crime okay I guess I want to go right back to the basic I've got an RFA I've got an RFA against me I violate it what happens potentially what happens so potentially what happens is you are criminal charge could be brought against you it depends on how you violated it may be the case that you're subject to two different charges but let's say it's a run of the mill violation you contacted somebody when you weren't supposed to you could now be charged with a crime violation of abuse prevention order and that's a misdemeanor but it does allow conditions of release to be placed on you it could mean if you seem to be a risk of flight that bail could be placed on you and then you may get a criminal conviction that will stay on your record a little more detail I violated the order and excuse my allergies and I said and I threatened them I'm going to kill you what happens is there language I use is there more teeth and a lot again I think that's where the violation of these prevention order crimes would come into play so just as follow up on this I was going to ask you questions just along that line isn't the big problem in the situation as far as trying to hold that individual is that unless it's a violent felony we can't hold without bail and I do understand that the senate is looking at possible constitutional amendment that will address that but it will take several years to get there if we get there at all but is that really where I mean yeah the problem is if it's just a misdemeanor unless there's the concern about flight constitutionally under the constitution that person cannot be held without bail I mean is that that is correct and the question I was going to have is there any way that these individuals can be held appropriately prior to the conviction unless they are a risk of flight that could happen but prior to a conviction under the Vermont's constitution it would be very difficult to hold them unless there is an assessment that they are a risk of flight and prosecution I just want to make sure that that's kind of understood why are these individuals not being held it's because of the constitution that puts those on the side it's not the right it's not a good answer well no it just verifies to me that again being a lay person that Arapa's don't have any teeth in them and I would just add to that that that's another reason that's another reason to get the firearms out of there because you're not going to be able to get the person out of the situation necessarily if there are misdemeanors so get the firearms out of the situation yeah I think that's a really important point goes back to the point I made earlier about enforceability we can have things written out but we need mechanisms by which we can actually act so what this bill does is allow for action so by imprisoning somebody for violating an RFA violates a constitution so it violates their rights well holding somebody pre-trial detention is only allowable for well if it's not a violent felony it's only allowable for risk of flight after a conviction that changes now you could be penalized with jail time some of the things I've heard from some of our other witnesses this morning is with regard to RFA is that the issue isn't just that there aren't consequences for violating a really firm abuse order but that both that survivors are fear coming forward with a really firm abuse order at first place or fear reporting violations because of the presence of weapons I think we heard that pretty clearly this morning I'm wondering if you want to comment on that would further be in consequences for violating a protection order address that question if the fear is even reporting the violations or is again as I said to representative Rachelson I don't want to sort of overstate what we can do with one change but I do think that this is an important step forward in helping people feel more secure I don't think that we're going to be able to eliminate those fears entirely what I do think is that if people know that this is there advocates who are maybe helping people can state to them there's a tool available that will help remove firearms I do think that this is a piece of the puzzle that is going to help people come forward and help people feel safer when they do and do you think I guess the other side of that question is do you think knowing that the penalties I mean this is a very subjective question so just bear with me but I feel like heard what we're hearing is just maybe violating or abuse really from a abuse order should be stronger and I'm wondering if that gets at the like does that help people who are fearful about reporting violations or even violating the first place come forward knowing that there is more deep behind the process on that so my mind what helps most is the enforceability aspects of it not so much the penalties I I'm not sure that we have good data showing that changing penalties change behavior all that much but what we do have that on is that people knowing that they're going to get caught or in this case people it doesn't matter what the penalty is the point is there is no mechanism to go and remove weapons so we're kind of outside of that we're taking ourselves outside of that rather debatable question of whether penalties change behavior what we're saying is that we have we are creating a mechanism where set aside penalties for a minute we are going to remove firearms and that's where the safety comes from we're not trying to make guesses about what will incentivize behavior because it's hard to know we're saying that set aside incentives, set aside behavior changing we are giving the state the ability to remove dangerous weapons can I coach you um thanks David when I look back at the testimony earlier last week it seems that there are other controls that need to be ensured and I'm not sure how we go about assisting making sure that they come to fruition and the point I'm making is for example the high risk teams that were suggested the better use and training around the lethality assessments because if I'm just trying to think in terms of if a local law enforcement officer you know goes to an event and he or she has that tool in their toolbox those questions that they ask in that assessment might lead them to there is an order and the person might have violated that order physically but if we're not utilizing the suggested tools that have been proven to be successful and the data supports that that gives credence to what Representative Burt was talking about how do we kind of wrap people up how do we make people feel safer in that situation when that true lawyer or that local law enforcement officer comes in and starts asking those questions and their brain is triggered to look for those things that's where we might be able to ensure so that's another piece and I'm not sure how we get to that you know as far as through legislation discussing some of that tomorrow responder I would just affirm that is a really important point and I think there are frankly other witnesses who can speak to it better than I can with respect to resources help advocates who are out there to have a larger set of services to help people I think that's vitally important so Selena did you no I'm sorry so the confiscation piece of this bill you said was found constitutional in New Jersey yes this has been designed to get into bad skiing so I don't even pretend to know New Jersey's are all of Vermont's constitution but I'm going to assume Vermont's constitution is a little different and what I'm going is say if we pass this it could be challenged okay so because there's going to be some people that are going to believe that it's not constitutional so going back to the RFAs if we if we pass put into this bill that somebody who does violate the RFA um has to be imprisoned it would stand until it's challenged yes no again we do have the violation of abuse prevention order which just provides for imprisonment in the case that you're convicted of that crime right right so we do have that tool available if you're convicted though there's a lot of time to say the violation and conviction could be your tool but that's where I was going with it is the law could be passed it could be put in here well if you're talking about incarceration with there aren't very serious constitutional um bars you need to beat before you can incarcerate somebody and uh conviction is one of the main ones that uh one of the main ways that the state can prosecute somebody so having some sort of pre-conviction incarceration regime would be very difficult to do constitutionally um could I be incarcerated for uh getting a DUI without a conviction again unless you're at risk of flight from prosecution it's unlikely so now we're talking about now we're getting into the realm of tension pre-conviction detention and that's a whole set of constitutional and statutory rules I had just I'll mention very briefly because I've been up here for a while the network had three changes that they had proposed and I just wanted to say we support those three changes I believe you've discussed them a bit with the network already so I won't go into them again but um those were just about clarifying that it is not required for somebody to answer questions about firearms um that was one of them the second one was clarifying the judges the ability to make credibility decisions about evidence and uh when it comes to um whether somebody possesses firearms or not and the third one is compliance monitoring so on the first one um where would the information come from the firearms the type of location if not from the petitioner well you may not get it and that's a reality of this situation but I think the concern is that if you put it in as a requirement you're now putting a bird in on somebody who's trying to get help um and potentially it could be read to invalidate their application if they didn't do something that was required so just being cautious about how you phrase it saying that they may put this information down we're not creating this to put place burdens and barriers on people who are trying to get help we're creating this in order to give provide tools but without that information presumably there wouldn't be the information sufficient for establishing probable cause for the warrant the RFA is somewhat separate from that proposal it is likely that that would be the case it's possible, I could imagine some hypotheticals out there where they get information another way that would be the case that they wouldn't have but make it optional okay thanks Madam Chair yes I know in the past we've asked if a Ledge Council can do flowcharts you know so I think it might be helpful you know as we continue our discussion to have that flowchart of what happens with an RFA you know what happens with a temporary RFA and then that way as we're operating and taking testimony to be able to actually see that process it might help us in framing our questions a little more directly work on it anything else for David alright thank you take a break 10 minute break please okay great thank you everybody we are going to start again on age 610 morning could you please introduce yourself my name is Sean Burke and I serve as the Chief of Police in South Carolina thank you you're ready to go thanks for sharing this legislation I've had an opportunity to review it and I think there are some meaningful action items as it pertains to the relinquish of firearms in a prevention order is issued I think particularly what's important is that the plaintiffs out of David clearly articulates the particular threat that's posed by firearms and also the particular nature of how firearms are stored within a person's home what's incumbent though I believe is that once a family court order is issued in that regard is that upon service that law enforcement has an opportunity to review not only that affidavit but do an objective investigation and if need be then apply for a search warrant to seize those weapons for a lot of reasons I think the objective investigation would bring a relevant fact pattern before the court to carefully consider before any such warrant was issued to seize someone's firearms and then operationally this would be a huge lift for law enforcement in the state and I represent a fairly large police organization that we can execute these operations safely and we're fortunate enough to have the ability to catalog and store firearms but that's not the case around the state firearms police organizations are represented by a single police officer or deputy sheriff covering a vast amount of terrain of your constituents territory and to just be kind of handed a search warrant say go ahead and take care of this and collect all these guns and photograph them and catalog them and store them that system will not work so those were my fake takeaways from the review as presented and I was frankly hopeful that you have direct questions as it related to kind of the practicing of law enforcement and how it intersects with the bill so you kind of went through the process if something happened what was that you were talking about the bill or the way it is now the bill okay that's what I thought and going back to cataloging and storing I'm sure you can't store an unlimited amount of firearms but how many can your department store? so as a luxury only by the good citizens of South Burlington and by retired Chief Wickel we have the ability to store about 40 firearms but frankly our weapons room right now is fairly full many many police departments don't have remotely that ability so I'm going to assume it's probably temperature humidity control the reason I'm going there is because some people have some pretty valuable firearms and when you said 40 I thought it would be more than that because again there's people who have large collections so say in that case you can store 40 you've got 30 in there and you have to confiscate somebody who's got 50 which is not unusual for somebody so what would happen then? so we would be really in a hard place and again even with our accommodations we could probably do it most police departments cannot do it and most police departments don't have any really kind of safe or secure areas to store 50 additional firearms so your storage areas I mean is it set up so I mean guns are placed in I guess proper holders I guess right so we can accommodate long guns appropriately it's not humidified but it's good dry space and then we store pistols or handguns in every boxes that are neatly stacked and stowed but again those are all like those boxes cost money that space cost money and most police departments do not have the resources that I'm explaining around so most I'll go to the bigger ones like Burlington or Rotland they would be the next biggest I'm guessing for as far as the city goes do you know what their capacities are? right Burlington I spent 21 years there they don't have near the capacity it's filled with crime guns and it's not as nice and safe as storage as a person probably would expect when we're temporarily holding their firearms I don't know what it all in on so you mentioned there was an opportunity to potentially do an investigation before warrant was issued how long would you first see such an investigation taken? so it would have to be done virtually as soon as you receive the abuse prevention order and probably upon service you'd have an actual opportunity to speak with the defendant named in the order to see if there was going to be a voluntary relinquishment get an idea of the scope of the evidence and then bring back not only the plaintiffs affidavit officers analysis of the situation but the defendant statement and let the court decide whether or not there are grounds for a search warrant to be issued so I guess I'm trying to understand what that additional investigation brings beyond what would be in an affidavit that would be necessary I mean if the affidavit of a petitioner is sufficient to show probable cause that these are the weapons these are where they are there's been abuse that has occurred and it's actually a seizure is necessary to protect the life health and well-being of a victim that needs to be proven in the affidavit the court needs to find that probable cause I can understand the situation if the court didn't find probable cause it would be further investigation when the police officer is serving the order that they find actually further evidence that would establish probable cause I guess I'm just I understand the safety concerns that you're raising but the court has to have established probable cause to issue that warrant and I don't see what additional information can be obtained through an investigation I do think that the police officer should have the option when they serve the order to try to get the voluntary relinquishment but then if it's not going to be voluntary to go ahead with the warrant which gives the opportunity to seize I would assume that would be part of how a police officer would approach the situation if they have a warrant if they can get the volunteer volunteer the person to volunteer them to come and get the firearms I'm sorry I'm calm any more than asking a question I will have a couple questions I guess as well but it just concerns me that in these situations needing to either get the person the perpetrator out of the situation or the guns out of the situation and as you weren't here when we were talking about how difficult it can be to get the perpetrator really out of the situation to hold without bail because of misdemeanor charges etc so we're really aiming at the enforceability of getting the guns out of the situation so going on I guess I mean if you could comment as far as what no I think essentially we're saying almost identically the same things where I agree with your analysis of the legal standard and the process but maybe my lens is on the operational side where the decision is a lonely police officer somewhere being dropped in a police prevention order in a search warrant and then tasked with somehow executing that without having any part of the investigation to one judge for our own operational reasons how we were going to approach that and then two to actually do an analysis of what needs to be done here I think that in a search warrant to go into someone's home the court has told us that that is the most sanctodious place for an individual and I just think that further investigation beyond what perhaps the plaintiff has offered at family court without an investigator kind of looking at it, evaluating the facts talking with a prosecutor before presenting a fact pattern before the court for a search warrant the court has looked at the evidence to establish probable cause and they've either had the evidence or not now a question if operationally you have the order you have the search warrant you go to serve the order you have the warrant as well could there be a situation where you kind of are checking out the situation and it seems like it's more dangerous for an individual police officer to do something that they can have some discretion to be holding off until they get back up or whatever the case might be how does that work operationally you have the ability to go there you can ask the person who's not going to do it seems very angry seems high on methamphetamine whatever that's a very dangerous situation I'm going to hold off on that warrant until I figure out the safety is that a scenario that can happen or is that not how it would happen and in Chitton County we do have the luxury of bringing other resources via mutual aid to a situation like that but other communities don't enjoy that and you know quite frankly the expectations of perfect outcomes in these situations are really high for the police and before we're executing a search warrant I would want my investigators involved in the lead up and gathering all the evidence on the facts as presented before the court having the objective eye of an investigator before bringing the search warrant before the court the abuse prevention order is different because we're not going to potentially force our way into a place where there are known risks being the firearms when we're serving the abuse prevention order often times they are a vacate order and those situations are volatile enough we're exponentially kind of escalating that if we're going to go in and then start seizing personal property and I just feel it's important that the police have a hand in the investigation to lead up to that so I don't think we're talking past each other but I'm trying to focus on the warrant can issue I mean can the investigation really be what you're talking about the evidence that you're gathering and such doesn't seem to go so much to whether that warrant should be issued or the problem causes established it's safely executing that warrant I mean is that is there a place in this kind of situation where yeah the relief from abuse order could be served but the police definitely have the discretion to figure out how and when it's safe to deliver that warrant I mean we want it to be there we want it to be able to be delivered right away but obviously if there's a concern about the safety of the situation the volatility of the situation we would trust the police to exercise its discretion in figuring out how best to exercise that warrant it seems to be two things it's a problem cause there are guns there there's been abuse and there's a finding that continuing to have those guns there is going to lead to bad outcomes and I do understand though that police going into the situation have other concerns as well I'm trying to sort those out and how we really need something in this bill or is it standard operating practice that if we put in here the warrant are we saying that you have no choice you have to march up there and deliver that warrant immediately or using your discretion to do it safely we would absolutely need full discretion on how and when to to execute absolutely but and perhaps I'm just thinking about it from this integrity standpoint and having been beat up on the stand a few times about the content of search warrant affidavits and it's incumbent on the police to establish that the information that we have provided the court is absolutely true and I just wonder if by a single affian going forward before the court offering a fact pattern that then issues a search warrant where does that leave the in the context of the suppression hearing where does that go who does that lie with if the warrant is challenged and why wouldn't we have the opportunity to have an investigation before a warrant was issued so I guess it's not the it's not the right like 51% likely that the evidence is in the spot it's not that it's the lead up like how have we cooperated that we know that this is a good factual basis in order to issue a warrant for this all so who would who would be challenged in this situation subsequent that this was more there wasn't probable cause what I'm hearing is when the police have been the affiant and have gone to the court to seek the search warrant they have to back it up but in this situation it's the individual who came to the court so I'm sorry I just have one question so there's the initial investigation with usually the domestic assault where probable cause is established is represented what I was talking about is one of your concerns that time gap between when this order would be issued and how things can change in that house and whether the defendant can either acquire more guns or go somewhere with the guns or anything like that is that why you're feeling there should be an additional investigation? No I think in cases where you're actually investigating assault and you've been partying to the investigation all along I think those are clear case for fact patterns for us what is a concern for us is in order that's potentially obtained at the court or at another police department but the defendants residence happens to be in our jurisdiction where we're now presented not only with the prevention order to serve but a search warrant to serve and then the downstream impacts of having to serve that search warrant I don't know who would be challenged on the evidence but I certainly do know who would be challenged on the liability of any police operation that goes on there and then also the downstream impact of if someone obtains a abuse prevention order say at my station house but yet they live in Hinesburg and the Hinesburg police are non and then they call out a state trooper to deal with that who has the resources then to adequately conduct this operation and in your example although it's probably real life we serve the abuse prevention order we kind of ask some probative questions about firearms and say well I'm there by myself would you mind turning those over and the defendants like well they're not here don't worry about it and I know that I can't carry that out in the moment when I go away I can't secure the scene both and call for help probably where can those guns end up so I think there are some careful considerations because we would have to in a very very timely fashion serve the abuse prevention order and this would start in lifetime I would just rather be more part of that investigative process before leading up to the search warrant thank you so about three and a half years ago I got a whole new view of what you people do in your job my son became a police officer and one thing you said that it really raised a concern with me I know that we talked about it and discussed it that domestic situations can be volatile whether it's the victim responding officer whatever if I heard you right you had a concern with the way the procedure would have to go now that it could make it even more of a concern for you did I hear that as far as potential danger goes to a police officer with the way it's written in the bill compared to the way that you would like to do it I do feel it would be a big ask of our world communities with generally one officer on to go out and try to not only serve an abused prevention order which may be vacate or not and then a search and seize so with the bringing an RFA is one thing but there's a certain level of concern there but to do a search and seizure it's going to notch it up even but I think we need the ability to do so but we need to be part of the investigation so we know exactly what the evidence from the plaintiff is telling us what we have learned throughout our objective investigation and then operationally marry that up with a good safe plan that's resourced in order to be able to deal with the evidence right in that I'm going to assume wouldn't it be going by yourself to do a search and seizure no and you know I think we reported to the state police last week that in South Carolina I think we have four or five maybe six guns potentially in our evidence locker pursuant to abuse prevention orders currently but South Burlington is kind of not what I know Vermont to be where it's very common to have upwards of a dozen or more guns if you're an outdoorsman and I just think the downstream impacts on small police departments are insurmountable I don't know how I started my career with a five person police department I don't know how the Woodstock police would be able to catalog and store 50, 60 guns for a temporary situation and to me I mean I don't mean to downplay but that's insignificant to me your safety is more of a concern to me so the Woodstock situation that's not an issue of whether there was probable cause for that warrant the issue that I'm hearing from you and I think it's a completely legitimate issue there's a couple one is the resources to execute that the second is the safety to execute that then there's the third of whether the search warrant is appropriate well that's in my view again is in the court's realm and whether the court issues that warrant and whether it's found probable cause from whatever affidavits or evidence that's been presented when they sought the relief from abuse order so those seem to be different issues to me I completely understand that law enforcement wants to not just really nearly go out to a potentially volatile situation I don't know trying to figure out if there's something in the bill that can sort those things out because again we don't want to put law enforcement in the harm's way they are always in harm's way I understand that without the safety precautions but again the Woodstock situation these other situations how to store how to have the resources to go out there and safely execute the warrant is still a different issue I do understand yet could it be a stronger basis for a search warrant well it still has to have a strong enough basis to have phone probable cause by the court so if there are other ideas that you have and you don't have to have them right now as far as how to really pinpoint and address those issues that I think are very critical that you're raising regarding safety and resources I think that's very important but I guess I'm just not convinced that it's at the issuance of the warrant that is a critical component right and I guess you know thank you for the remark about safety and storage capacity but back to the issue at hand with the evidence and you know perhaps it's just my experience with applying for 100s of search warrants over the years is that we have to be extremely careful when dealing with evidence that we're bringing before the court to really hear say evidence and verify the veracity and validity of that information and make a good faith affidavit for the court before that's issued and those in my experience have always been on the heels of a false investigation and I don't know how that will relate to the ability to go into a family court and fill out an affidavit there and apply directly to the court for a search warrant that's just confusing to me but that's more of a process question so maybe it's the different kind of scenarios as far as why one is seeking a search warrant in this situation we're not seeking a search warrant to gather evidence of a crime and I can understand you need to have all the T's crossed and the I's dotted to hold that up in court that this evidence can be introduced that the search warrant was appropriate that it was properly executed etc that's not the purpose of this search warrant it is to remove the firearms from the dangerous situation so I don't know if that makes it somewhat different I can't imagine this may be a new kind of situation of a search warrant because again you're not evidence gathering does that make a difference in what one needs and again maybe we're not seeking evidence, maybe we are and maybe we need to parse that out too because the gun could have been in play in the criminal act that's initially alleged or in other criminal acts that are later learned about because we know about the historical build-up in domestic violence cases so I hear what you're saying and I can see where that's a little disconnected with our lived experience as police officers now and when we seek a warrant but it occurs to me though that it still would be troublesome to have an abuse prevention and a search warrant immediately placed on police departments in Vermont to then go out and try to figure out on their own on how to get that done again, bigger police departments we can definitely do that we have the human resources, we have the training the tactics in order to do these things but they're very very complicated it's where we present our highest amount of risk and the public expects brightly so it's possible so I just keep trying to think about because it seems like it's so important to both keep the public safe and not have law enforcement you know one officer walking into a scene that they can't control so this is like a very you know a half, I'm just sort of brainstorming in my head so I'm wondering if there's some either like the whole state police the rest of the state I can't wrap my hands around yet but what if there was something like a CUSI unit that was specialized in the metro area where there was sort of backup for a big area that could go in and help do that and store things like joint storage so that again just like we train DRE folks I mean I think those models are great in structure but we're all starving to find qualified folks we all have vacancies I don't know where those human resources would eventually come from and again it's not to take away from the circumstances what I'm asking for or suggesting that is at least considered is that the investigators have a crack at this evidence and then go back to the court and say we need a warrant in this instance and can you talk about are there other times that you're taking things from people in the situation I mean I know guns are like in a class of the road in terms of danger and people feeling pretty sensitive about that but are police officers going in in some cases and removing paraphernalia like something that isn't as sort of emotionally charged certainly so if an officer finds themselves legally present somewhere and you see evidence of crime or a contraband we see those things we also because of exigent circumstances will either make entry or seize evidence and then seek a court order but those are in the totality of the circumstances of the events right in front of you and just quickly I'll say I stopped a car yesterday and the operator said hey I've got a gun right here on my front seat and I told him as long as you don't reach forward we're good so it's not just about guns we deal with evidence regardless of what it is in the framework of the law and there are those few times that we do either through exigent circumstances being lawfully present pursuant to an arrest or pursuant to a court we see these evidence and is that evidence stored as carefully as guns are like in a climate controlled room or like in some of these cars like is it just parked in a lot somewhere or does that work yeah so cars can be while they're awaiting process often times they're in a garage at the station and then they're stored outside but just like through the matter of processing that if you drop a wallet that's not a big deal right if you drop someone's you know over under a dollar shotgun that's a big deal and you know the space in which it takes to store those things that those are all really different things to think about I have a question that relates to your suggestion which is my understanding is people could pursue temporary or final really from abuse orders in civil court and never initiate a criminal proceeding with violence charges and so thinking about your suggestion that the investigator would kind of be part of the determination of whether or not it was called for in that instance I think that's what I'm referring to to be is there always a consistent role for police as investigators or someone hasn't in the final order if someone has not you know isn't pursuing criminal charges which I think is quite common would there be a consistent role for a police investigator already in those instances or would we be creating a new role no so the same intersect would exist the minute they were came to the police for service we were responsible and that's when we get involved and I think that that process is fine I just feel as though that if we're going to receive an abuse prevention order it's going to alert us that there's a firearms or a link wishmen that we as investigators owe it to go out and do an objective investigation and then have the ability which the enhancements in the plaintiff affidavit as to you know the scope of the evidence where is the evidence it's going to be very very helpful and then the ability to go maybe even right back to the same family court judge to say yes we need a search warrant in order to seize these firearms and make this situation safe and are you talking about just an instance of the final order or both the temporary both temporary and final thank you so much I appreciate your time thank you good afternoon good morning good morning James Pepper Department of State's Attorney's and Sheriff's so the only sections of this bill as introduced really impact criminal court processes or the core functions of the state's attorneys are sections 6 through 12 which really are related to extreme risk protection orders and conditions of release so but you know to the extent that any of the other sections impact public safety I'd be happy to comment on them or take questions with respect to allowing household or family members to initiate the extreme risk protection order state's attorneys have no problems with that they think it's good policy there are questions about how the role of the household member interplays with the state's attorney in subsequent proceedings you know if there's family members seeking the ex parte emergency order does the state's attorney have party standing at the subsequent hearing for the final order traditionally the state's attorneys are the assistant attorney generals or gatekeepers of extreme risk protection orders so just the interplay of that gatekeeping function as the order moves forward I think it would probably be similar to the way the RFA works and the state's attorney would not be involved in the final hearing but there are some questions about that interplay so any clarification on that might be helpful in the appeal process to if one if a final is issued and someone wants to appeal that there are we were I think very strongly supportive of allowing healthcare providers to inform law enforcement of an extreme risk of harm to self or others that would initiate an ERBO petition we're sad to see that language go last year and we're happy that it's back and I think as Eric Fitzpatrick mentioned we think that it's already covered but for a belt and suspenders approach it might be good just to spell it out for the healthcare providers we have heard some concerns I think this is a question to ask the other day but with healthcare providers I'm thinking of somebody in the psychiatry field and so what's the issue with or potential issues with HIPAA around that right well so I'm not an expert on HIPAA but there are exceptions to HIPAA that are federal and we have state exceptions to HIPAA as well and I think the healthcare providers had reached out and said we believe that this is a federal exemption to HIPAA already but just to be double sure that we want to they don't want to risk losing their license so they want to just have it in our state law as well just to make sure that they can report that right that's pretty much what I heard the other day do I just want to and then the condition of release relating to relinquishment of firearms it's a pretty standard condition it's applied in almost every domestic violence right spelling it out I mean most court forms already have it on there but to make it clear make it standard make it consistent across all counties just know have everyone be aware that you know it's a standard condition very, very helpful and public safety will be happy to answer any questions about you so I guess I'm not sure I understood are you concerned about the adding family or household member or how we are doing it or I just want to be clear on we do not have any concerns about adding it I mean I think that there is a concern that I've heard about whether household members should be contacting judges in the middle of the night for an emergency order there is a process for seeking an RFA after hours I think there could be a process developed for seeking in purple after hours so we don't have any concerns about that our only concern is how the state's attorneys or the attorney general's play into an order that's been initiated by a family or household member because essentially our gatekeeping role has been removed and we don't have any concern with that but the idea is do we show up to the subsequent hearings or are we a party to the appeals the question came to mind and it may be a question for the judge more than you through the whole court system is this going to put an additional burden on to me I guess there is more work expected for the court system through the court system as far as their work goes to the max as it is I would say with respect to ERPOs there hasn't been an incredible substantial increase burden the number of ERPOs hasn't overwhelmed the state's attorneys it was an additional it was an additional thing that we're doing now it's an important thing that we're doing if you add household members and they're it's totally separate from the state's attorney's office and that would be a question for the court if we're involved in that kind of gatekeeping process at all it could be an additional pressure but the number of ERPOs filed isn't something that we it hasn't overwhelmed either our on-call state's attorneys or just regular hours state attorneys to see it stretching your research depending on how it works out to me it sounds like this is going to be totally separate from ERPOs that are initiated through our office so to the extent that is true it wouldn't impact us at all so a very basic question having to do with what we heard from Chief Burke so does law enforcement go directly to the court to seek award or is there state's attorneys involvement in these situations state's attorneys are always involved so it's law enforcement doing an investigation working then with the state's attorney to ensure that just the application checks all the boxes what kind of time frame how long does it generally take to obtain a third floor couple hours someone pulls someone over and wants to search the car and they'll call the on-call state's attorney to the state's attorney's office review the application that can happen roadside right okay great thanks thank you Chris okay great thank you and then we'll take a break for lunch and continue in the afternoon after the floor good morning good morning still Chief Superior Judge justifying on age 610 I think this is my I've been called on witness list I think it's the first time before the committee this session so it's good to be back on 610 let me start by reminding the committee of a statement by Attorney General Donovan when he testified yesterday domestic violence and the issues and procedures around this bill is incredibly complicated I think that's been borne out by the testimony of some of the questions by the individual representatives recently Chief Burke when he talked about search warrants being complicated and presenting the highest level of risk for the in my role obviously this bill involves a number of policy decisions for the legislature and in my role I'm not here to support or oppose this bill but what I hope to do during the course of my testimony is outline what I consider the potential impacts on the judiciary of this bill is adopted as written and some of the concerns I have the procedures that have been discussed and are set forth in this bill I would ask the committee as they're listening to me and considering the testimony they've heard to keep a couple of overarching issues in mind first of all there is a significant difference in the process and procedure when we're talking about an emergency or temporary and that's critical understanding the different procedures that come into play with that there obviously is a difference between the civil process and the criminal process which has been highlighted by some of the witnesses I think it's important to understand the difference between the temporary procedures and the final procedures what I will try to do is comment on those procedures that are outlined in this bill my concerns and hopefully offer some suggestions to remedy what I see as some of the problems and I would hope the committee would feel members would feel comfortable in interrupting at any point the process the other the other point I would make that you need to keep in mind is we have been talking or at least the testimony as I've heard it we've been discussing RFA orders as they were a generic variety and I think the representative asked about an average RFA I will tell you that there is nothing average about any RFA every one of these cases is handed on an individual basis and the way this bill is framed and I understand the policy and the issues behind it it talks as if there was only one type of RFA and that is an RFA that involves intimate partners and ultimately there are a number of entities that come of course that are not intimate partners there are brothers who end up fighting with each other there are parents who bring action who relieve from abuse actions against their children we talked about representatives that were asked about stay away or no contact orders many of these orders are issued people can ask for individual claims for relief it's certainly often the case if not in every case in an intimate partner relationship where they ask for a no contact or stay away but there are those intimate partner complaints that also only seek no abuse of harassment and they don't want the person to leave the house and so I think as you're listening to the testimony and considering the issues presented by this bill you have to keep in mind that there's more than one population that will be impacted by this and going back to the question that I represented Triva I was wrestling with which way to go I'll try to I lost he questioned the idea of it being shall impose a condition of enforcement in every single temporary order and final order and there are some situations where that may not be appropriate clearly it's an intimate and certainly the situation described by Corby's allies is the type of situation where clearly that would be appropriate but there may be these other situations where someone doesn't want to be vacated from the house or a family relationship that doesn't involve intimate relationship where that order would be unnecessary but if it's mandated, if it's a shell we don't have any choice at this point under the current law the court does have the discretion assuming the evidence is there to warrant that type of order that we can order and it is but it is clearly handled on a case by case depending on the evidence that is presented to us and I have discussed with this issue about every order calling for that relinquishment is something that I've been discussing with the domestic violence represented as for going on years now and when a case is before a judge they are supposed to be deciding that case based on the evidence that's presented and almost every one of these cases are certainly by prior to the majority we're dealing with unrepresented individuals neither one is represented by an attorney so the court is always in a situation of a fine line, walking a fine line between hearing the case hearing the evidence that the parties presented and making sure we have the evidence to make the decision but we cannot create the case for either party either the plaintiff helping the plaintiff with their bill or the defense with their defense and so one of the things I'll quote to the bill itself but there's been a discussion about a provision in the bill that calls for the plaintiff to include in a new complaint form all the information about knowledge of guns type of guns where the guns are and I understand and have talked with domestic folks about that reoccurring issue of them not wanting to have the plaintiff provide that information and leaving it up to the court to bring it out in the course of a hearing so in the simplest terms that information and I'm not taking a position whether it should be in this complaint or not but if that information is not forthcoming in a request for an emergency order a temporary order there will be no search warrant and then it's a question if there's no evidence in that affidavit of guns or firearms being an issue then there clearly won't be a warrant there will be no basis for it guidelines that the Jersey Court have issued and when you get into a hearing assuming there's nothing in an affidavit temporary orders granted they commend for a final hearing the court decides the case based on the evidence that's presented during the course of that hearing it may or may not be the same evidence that's in the affidavit to this point we decided based on the testimony that's presented the hearing in the affidavit to indicate to the court that there's even an issue of firearms if the plaintiff on their own does not raise the issue of the use of firearms or the presence of firearms it is not the court's obligation to then open up an issue that otherwise hasn't been done by the parties now some judges will they will ask about firearms but not every gentleman it's how they view their role in that procedure so that's I think one of the areas where clearly it is complicated to understand where this committee should go on that provision but from a court's perspective that's the problem I understand why they don't want the information coming forward but without it we're going to be limited in what we can do in this bill Judge you raised a really important point how different all of these are and it's helpful to think about that but that just made me think about the case well a couple of cases one that I saw in court where one side actually had legal counsel and the other side didn't which was also quite an interesting contrast but if somebody is no longer you know it's an ex boyfriend they moved out seven months ago or something that person may have no knowledge of you know the person's gotten you know angrier and angrier when they live together he didn't have guns but in some cases the person's not going to be able to know the answer to that and I would hate for us to err on the wrong side and as you said some judges are going to say are there guns involved but you know the person filing the art they won't always know that I understand that's what I'm saying there's no average it depends on whatever evidence is presented to the court and it may be that the history that's presented by the parties the escalating nature of the behavior it may prompt a particular judge to ask an inquirer about firearms so if it's only it may like might it make sense for us to look at asking the court to inquire because it could be a year that passed or something I would be very concerned if the legislature starts telling judges what they have to ask I'll leave it at that thank you judge I think you're talking about a point that's sort of stuck with me a little bit you're trying to figure out and I don't know if you have any ideas about how we try to standardize a process across the states regardless of which judge a person is sitting in front of they're able to access the the and the amount you mentioned that a lot of people aren't represented by attorneys in these situations by the majority are not represented in this situation the representative mentioned where there's an attorney on one side makes it even more difficult to create that balance of a system I just didn't know if you had any thoughts about balancing things out across the state regardless of who a person is as a judge where the person is or their amount of knowledge that they have in legal matters balancing out what the outcomes look like so we talked about how if they don't mention firearms the court doesn't necessarily know that firearms could or should be an issue it's not mentioned somewhere and I know you just your last statement before I was called on was that you're concerned about the legislature telling the court what they should be looking at and I understand that as well I think only because that's really a slippery slope how far do you go in telling the court or any judge how to conduct a particular hearing I think the issue of firearms is a significant issue and it's one that keep in mind you have 30 independently appointed judges I'm not in a position in my role to tell them how they have to conduct a hearing and I think the issue of firearms is one where I think it's one that has to be brought out it's a question of how it's brought out in these proceedings and it's so fact dependent on what information is before the court that I don't know if you're ever going to standardize how a particular hearing is conducted I think that's the hard part because you're not dealing with a A then B situation these are people in different situations there are different situations that could be an incident that occurred two days before the hearing it could be a history the real history is back six months or a year before for instance the situation described earlier this morning the parties hadn't been together for seven months that's that's not uncommon they have folks coming in seeking orders long after a relationship and for the same kind of behavior that was described here the social media and the ability to reach out to someone when you don't have physical contact and so I'm not saying I'm not taking the position on whether it should be part of every order I'm just saying there are consequences that haven't been discussed before if it is without that in there if it's a May then you are looking to the individual judge to based on the information that's before him or her to make a decision and many judges because of the nature of the matter will make that inquiry but that inquiry ultimately the information has to come from the plaintiff there's no other way of getting the information out because remember that there's another part of the bill that I'll address but remember when the defendant comes in with a relief from abuse order even if they are not charged with a crime the potential is always there that the evidence will show a crime may have occurred and so in every situation either a defendant comes in with it on the end of a relief from abuse order charged with a domestic violence of some sort or not but the potential is there because of the evidence and so the first thing usually a judge will be talking to the defendant is give that advice you are not charged with a criminal offense but this is a public proceeding your testimony is being recorded and you have the right to take the fifth amendment and so many defendants will not testify because they can't so another part of this bill that talks about initially a warrant is issued or an order of relinquishment the shall relinquish firearms is issued at the time of the temporary order this bill one part of it says later on when you get into the final hearing the court can ask the defendant if the defendant says under I do not have firearms then you vacate that relinquishment and there is some question about whether we should add credibility back to the matter I can't ask that question because if there is an order of relinquishment that I've had to issue as a result of the temporary order that the person is not to possess firearms I cannot ask him without giving him that warning that if you then tell me truthfully I have a warrant he's admitting a crime so there are certainly circumstances where I don't think I will be able to ask that question that would relieve the obligation by the mandatory so I'm hearing you don't like shall and you don't like us to tell you what to do I'm saying the consequences of shall I'm concerned about sure well let me throw out another just for you to comment on this I don't know if this is what we would want to do but if there is a presumption that an order will have relinquishment unless I don't know what the burden would be or what the court would have to find to not issue that it could be the situation they're not vacating they don't want this whatever but the presumption is on every one of the whatever the causes there will be relinquishment unless the court finds that so you could I suppose define the population that it applies to say that in cases involving intimate partner relationships however you want to define that I said it would be so that there's some discretion the court can exercise again I'm looking at the temporary and I guess I'm looking at domestic violence a little broader than intimate relationship I perceive the parent child in the same home I see the brother brother in the same or city whatever kind of under that umbrella and would want something like at least a presumption unless there is some sort of finding that the court makes that there shouldn't be the relinquishment component of the order so again because that's a different you know that's I understand your approach but and the only thing I would say to that is again you've got to look at what point are you in the process if you're talking about a temporary order there's not going to be any contradictory evidence anyway as opposed to a fine order when the defendant has no opportunity to talk so if there's a presumption there's no way of rebutting that presumption on a late night home and again even in those family situations I agree with you I don't dispute that there are certainly family situations where it's appropriate but if someone is not asking to vacate the premises they want the person to continue to live in the home depending on what the nature of the relationship is it may or may not be appropriate to have the guns removed so what evidence does the court have to see to issue the relinquishment component of the order evidence firearms evidence firearms it's that on one hand it's that simple and on the other hand it's that complicated it's complicated because if you accept the position that's been proper this morning that they don't want that information in the affidavit then there will be no evidence so so I would take it to a different level one day I mean is that there may not be firearms that's only controlled at that point but when that relinquishment order is put in place the person can't subsequently obtain a firearm so I mean that's and that's why I mean I think presumption it should always be put in there the person even without you know there may not be any evidence that the person doesn't have a firearm because they doesn't but that doesn't stop that person from the next day because we're now at a very dangerous point in time when a relief of abuse order is sought so again I think having it just may doesn't seem satisfying to me I'm willing to try to understand a better scope I'm not as I said I'm not taking the position whether it should be shell or may I'm just telling you the consequences if it is shell then these are some of the repercussions that's why I'm saying that's a policy decision I'm not arguing with you I'm just saying the consequences that may apply in cases like the examples but if you have and the reason I raise the presumption is that seems somewhat between the shell and may and if there's something else that could be workable that doesn't have these issues that you proceed from your perspective on these I mean be helpful and it doesn't sound like presumptions in answer I mean I hadn't thought about it before I'm glad to be in Parliament so actually I'm looking at the time are you available after we get off the floor after we get off the floor what time do you get off the floor I'm a little out of shadow do you know what I mean I don't think I'm otherwise I don't know if there's much on the floor today there's nothing it should be very short okay yeah one thirty yeah we can we can call alright thanks and that way we can take more time and also be helpful for you to actually go through the bill and show us yeah I've been trying to get there I know okay great