 Before we start, how much time do I have so I don't abuse my privilege here. Oh, how much time you need. Let's just say I'll try not to abuse the privilege. How about about 10 minutes. That's fine. That's fine. I have senators for those of you who don't know me. My name is Bradley Myers and I live in Paula. I recently retired after practicing law in Manchester for 38 years. Largely criminal defense and some plaintiffs personal injury. During that time I handled about four to six police misconduct cases, two of which went to trial. One of which was a plaintiff's verdict and the other was a home jury. Now, qualified immunity for some reason and this was going back maybe 30 years was not an issue in any of those cases. I don't remember why, but it certainly is an issue now. And I would like to start by kind of going maybe a 30,000 feet view of things. Why is this bill being proposed? Why abolish qualified immunity? You're the Senate Judiciary Committee. Your focus presumably is to create just laws based on sound policies to benefit the greatest number of individuals and not to favor a protected class or group of persons. Abolishing qualified immunity would accomplish that very goal of benefiting the greatest number of persons. It's very simple. The bill creates meaningful accountability for a taxpayer funded arm of government. That exerts enormous power and control over the citizen. What is not create abolishing abolishing qualified community would not create what is known as strict liability. In other words, you just present your case, and you've established liability with putting in a minimum amount of facts. It simply removes the unjust judicially created doctrine that shields police from the consequences of their own wrongdoing. Now, I'm going to speak to a lot of the objections that I've heard from opponents of the bill and the benefit of going last year is that going through my notes of what folks had to say last week's hearing. We heard a lot of alarmist alarmists from the law enforcement community telling us that abolishing qualified immunity will open the floodgates to frivolous lawsuits. And since I've done plaintiffs work. I can tell you and we've heard that for years from insurance companies when this committee and the legislature as a whole past laws to broaden claimants rights, or to remove unjust defenses, such as the seat belt defense. The lawsuit is simply a bad cliche that is being used in this bill to take away rights of claimants to seek compensation for the courts. There is no evidence beyond any speculations not evidence. It hasn't happened in Colorado, which is which has had qualified immunity for a year abolish qualified immunity a year ago. There is no evidence that abolishing qualified immunity would somehow use another cliche open the floodgates to a wave of frivolous lawsuits against the police. The statute is worded in such a way that it limits frivolous lawsuits, because it adopts what's called the English rule, which is that the loser pays. It's if the court and this I'm referring to subsection D judgments ever entered favor defendant the court may award reasonable attorney's fees and other litigation costs reasonably incurred to the defendant for defending any claims, the court deems frivolous. So, that is a significant check on against the fear that abolishing qualified immunity would open the floodgates to frivolous lawsuits. I'm not wild about this portion of the bill. I understand that there's a reason for it being in there. There are very, very few statutes in Vermont, which incorporate the English rule that the loser pays, but I'm comforted by the fact that the court has the discretion to determine whether a lawsuit is frivolous a lawsuit against police or department or both is frivolous or not. So I think that's a significant check against the possibility of an excessive number of lawsuits. I should also say from my own perspective of handling these cases, and also doing personal injury work. Police are hard enough to win, even if there is no qualifying. It's tantamount to suing a physician in a medical malpractice case. Why, well in part because the public, they favor the police. Okay, police officers were taught from, you know, from childhood that they are trustworthy and deserve our respect. And that is with doctors. So in front of a jury, a police officer is going to have that built in respect. And that will be a check, I think on the against the success of a potential lawsuit. There is no evidence that abolishing qualified immunity would jeopardize public safety. What would happen in Colorado, or Connecticut, which is abolished qualified immunity, nor New Mexico. The civil justice system should be balanced between the claimant and the defendant in this case the police or police department police brutality cases. In police brutality cases that balance. If you have qualified immunity is fictitious police and police departments who employ them have a huge unfair advantage in litigation because of qualified to the detriment of the victim and their families. It's wrong. It's morally wrong. It's legally wrong, and abolishing qualified immunity and adopting S 254 would eliminate that if someone is injured, due to someone else do the negligence of another. The wrong doer is held accountable through the civil justice system. If a doctor makes a mistake, the doctor can be sued and held accountable by a jury. It's hard to do. But if the injury is aggravated enough, and there's liability the doctor will be held accountable. Why should it be any different when an officer harms a citizen, whether physically through brutality or a violation of constitutional rights by illegally stopping someone illegally searching them. As in the Zulu case which I'm sure you're familiar with, seizing the car and then forcing the person just leaving them on their own. There is a screening process that lawyers engage in, in evaluating whether to take a case on a contingent fee, which is how most lawyers would take. Policeman's conduct cases. Unbelievable. Am I willing to do I feel that the case is strong enough to invest in at least one expert for example a police misconduct expert former police officer. Am I willing to risk the possibility of a verdict for the defendant. If this bill were to be passed and you've got the loser pays provision. All of those factors make these types of cases. Very very difficult to litigate and to win. Qualified immunity abolishing qualified immunity will encourage lawyers to represent citizens harmed by the police, whether physically, or by egregious constant egregious violation of Vermont, or United States constitutional rights, and it will provide justice by allowing policemen conduct cases to be heard by juries, which is something that David slay pointed out, rather than dying in the crib. So to speak, of being unfairly dismissed before trial by a judge, without any discovery to find out the merits of the case. I think it's also going to increase trust in government and the police, because egregious behavior by the police and by the departments, employing them will be there will be held to account. You have, I'm sorry, Senator, you were about to say something I interrupted you. No, I'm okay. I'm in a bit of pain, Brad from some. I'm sorry. No, no, it's fine. It's not your fault. I don't think there's any sign from that. Yeah. There are attorneys, there's an attorney's fees provision for the successful claimant in the bill, which I think is a very good thing. It's not a novel approach because of course, under the federal civil rights statute 42 United States code section 1983. There is a an attorney's fees component. It's not automatic. The judge has to find that their substantial merit to the lawsuit, or that you substantially succeeded. You have to have an expert justify the attorney's fees and expenses. And then there has to be hearing in front of a judge to determine whether an award of attorney's fees and expenses is warranted. I went through that in a successful case that I had, and Judge Billings, who was the federal judge at the time, did cut down some of my attorney's fees and expenses. So it's not an automatic ticket to get your attorney's fees and expenses, even if you win. And this under under Vermont law, there are attorneys fees awarded in other cases, where Senate judiciary and the legislature as a whole, found it a positive social benefit to encourage the filing of lawsuits, in particular, I'm thinking of the construction statute, because otherwise attorneys wouldn't be willing to help homeowners and take those cases on a contingency basis. Now we heard from Sheriff Mark who and others that abolishing qualified immunity is going to discourage qualified applicants for police positions because they're, they're afraid of being sued. That's a fiction. There is no correlation that's been demonstrated at all between the difficulty in filling police openings currently and abolishing qualified immunity. Manchester recently had three officers leave, and just as quickly they rehire or they rehired, they hired two new officers to fill those positions. If an officer doesn't want to continue in law enforcement, because he or she is afraid of being sued. Then, or being held accountable for their actions. Is this somebody that we really want carrying a badge and a gun and driving a patrol car. I guess, taking that argument by the police that it's abolishing qualified immunity would discourage retention of police officers or hiring of police officers. That's really kind of code for saying, well, we should be allowed to relax the standards for hiring police officers. And there is this, there is an issue in Vermont about police departments hiring rejects from other departments was recently in Woodstock, an officer who was fired by another department was hired by Woodstock. It's happened in Rutland, it's happened in Ludlow, and it's happened in Woodstock. Senator White talked about raising concerns at the last hearing about insurance issues and indemnification. And this, this gets into a kind of a broad issue of, well, who's going to bear the loss. Under current law, qualified immunity, since it basically bars citizens from the courthouse door, seeking redress against the police, especially the poor and people of color who were most often victimized by the police misconduct. It takes away the remedy for the harms that they've suffered. Stephen Gillum from the Wyndham County NAACP. He asked you last week, what about the people. He mentioned about how people having bad experiences with police officers suffer post traumatic stress disorder, among other harms, which also affects the also affects their families and society at large. I believe that this bill will help those harmed by police misconduct who seek compensation for their injuries. And I'm specifically referring to, by taking away qualified immunity. I'm speaking of the indemnification clause in sections E and F. All police are insured. When I tried my first case. Actually, it's my first civil case was a civil rights case against city of Rutland and two officers. The jury returned a verdict against the officers and the city. And they also returned a verdict for punitive damages against the officers. Well, those damages were paid, either by the city or by the insurance company. So having insurance coverage, and this goes to the issue of well, if is it an intentional tort, will there be insurance coverage. There aren't going to be officers losing their homes. If they are held accountable by a jury for for what they did to a citizen. The indemnification provisions of sections E and F. Shift the loss for police misconduct to the municipalities and to their insurers. That's what insurance is for. The permits involving the officers involved suffer the loss also. Those are in those entities are better able to handle the losses than the victim. Could we wrap up Brad? Yes. Yeah, thank you. This is a victim's rights bill, I think above all. Bill and your colleagues in the house have spent much time and effort passing legislation to protect victims. This is a victim's right bill you're protecting victims of police misconduct by giving them the key to the courthouse. It's not an automatic jury verdict for the plaintiff. You are simply helping them achieve justice and accountability for the police. And I think it's a, I give you, Senator Sears, tremendous credit, Senator Baruch and Senator Ram Hinsdale for sponsoring this bill. I am sorry that you are taking such such heat from the law enforcement community. That's wrong. But this bill is is eminently reasonable. And I appreciate your interest in having me testify. Brad, I want to mention Senator Ballant was also is also a sponsor of the bill. Yes. I get you know you've raised the specter of the frivolous lawsuit and I think that's something we all are concerned with as an attorney or as a retired attorney now. Would you take a case. If, you know, unless you were darn sure you could win. I think that that that the attorney fees may, you know, a loser pays. Well, number criteria. Number one, there have to be good facts. Okay. Are there witnesses photographs injuries. Number two, what's the client like. Do they have a record, because of course the Defense Council is going to tear them apart. Can they withstand cross examination. How would they appear in front of the jury. Number three, what experts am I going to need. Where am I going to find them. How much they're going to cost to establish liability on the part of the police. And of course, if there's an injury I need to have medical experts coming. So all of those factor into the equation of whether or not the case is worth taking. Does that answer your question. So really, we've talked about the frivolous lawsuit and how to avoid them. We haven't talked about the requirement in the, in the section that outlines the loser pays. If I had a good enough case, I'd be willing to take it, not withstanding loser pace. I think that will discourage some. Someone who's not familiar with police misconduct cases from taking a case, but even though I'm not thrilled about it. I understand why it's in the bill. It's a counterbalance to the attorney's fees and costs being awarded to the party that substantially prevails. Again, it's not automatic. It's got to be screened by a pledge. No, either way. Thank you for your question for Brad Senator White. Thank you. Thank you, Mr. Morrison. I do disagree with you on a couple points and then I have a couple of questions but I disagree with you that this is the only way to hold police accountable and I think there's a lot of efforts going on right now in around, around the criminal justice council and their professional regulations committee to hold police accountable. So I do disagree with you on that and I'm not so sure that the right now in this environment that the public actually favors the police. So I just, I'm not asking a question about that. I'm just saying that I disagree with you on those two things, but I will, I do have a couple questions. One, I, I, and I'm not an attorney. So, and I'm just really trying to figure this out. I'm, I'm not, I'm really trying to figure this out and make sure we do the right thing. So, and I understand that what was told to us in Iqbal that that case that qualified immunity prevented the discovery from happening but my understanding is that that case had nothing to do with qualified immunity and had to do with the federal pleading that it wasn't didn't qualified immunity didn't even figure into that so I'm a little surprised that that was used as an example and my two and then Colorado only does constitutional violations, this bill expands it to any statutory or common law violations also. So they aren't comparable at all. And this is much more expansive than Colorado. And my question is the I, I've read a ton of stuff on this and I've read the Zulu case. And I also read the Zulu case. And if you Google Zulu. The first thing that comes up or one of the first things that comes up is the summary explanation that was given to us by one of our legislative counsel attorneys, and then in reading that and in reading the case, the way I understand this is that, and I know there's a difference of opinion here but the way I understand this is that Zulu did. The court did create a right of action and a right to sue. So I'm a little confused because when I asked before if, if there was a different standard that we could use and if the if we didn't people didn't already have the right of action, the right to sue. That's what I thought Zulu did. And I, I know there's a difference of opinion but that was the information given to us by our legislative counsel, not not been, but in a, at a different time on a different case, or a different issue. So I confused, did it or does it or does it not create a right of action. Yeah, well Zulu created a cause of action for violation of citizens rights under the Vermont Constitution, right, right on what what I have dealt with. It has been where there's injury. You know, common law torts said, you know injury false imprisonment. For example, Zulu only created that right as pertaining to harms suffered for violation of the Vermont Constitution. Right. And that's why but and we keep comparing this saying that it's comparable to Colorado, because Colorado. They haven't seen any increase in suits and they haven't seen police officers abandoning ship. And that's what Zulu does here. That's what Zulu already does in Vermont and in Colorado it is limited to constitutional violations. So I don't, I don't understand what you're saying that Colorado is not an apt comparison for yes because it only it only addresses violations under the Colorado Constitution. That's, you know, that's a fair point. We're seizing on Colorado is the bright shiny object because you know they abolish qualified immunity and they've done that that's been in place the longest. I think Connecticut and New Mexico were more recent. You could always sue in Vermont, you could always sue a police officer for you know for violation of federal constitutional rights and for and for our common law torts. It's just that Zulu. Well, maybe I'm wondering off track here. I'm pressing your question. Well, my question is kind of two fold I guess we compare it to Colorado and say, we have not seen a lot of suits and we have not seen negative impacts from Colorado's kind of qualified immunity. Colorado eliminated it for constitutional violations, not statutory and common law, just constitutional violations. So, comparing it to out this bill doesn't make any sense to me because this is a much broader bill. And my understanding is that Zulu created a right to action. There are violations of the Vermont Constitution. So if that's already in effect. Then I don't understand what I don't understand why qualified immunity stands in the way of filing a suit against a police officer for for a violation of the Vermont Constitution. Well, because of violation of you have to show a violation of a clearly established right. Yeah, but and I think that the misinterpretation of clearly established right is that that is a rule that has been stretched to the breaking point to shield police. And I'm, I don't mean to belabor this but when I read there is a 2015 case that says a clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. I can say that it has to be the exactly the same it says that a reasonable official would understand and that that to me says that the way it's being interpreted by people not necessarily in Vermont and not necessarily in the second circuit court. That they that they're misinterpreting what a clearly established right is. What is the standard we should use. I think you've asked some great questions, and I'm not sure this witness, Brad was here. I'm not sure he's an expert on this. Well, let me try to answer. If you'll have if you'll have it. I would defer to them. Go ahead. I mean, no, no, go ahead. Look, I. Sure. I just write on. I've read. I mean, the example that sticks in my mind of the abuse of the. The standard is that a case involving a prison corrections official not in Vermont, who maced a prisoner, a defenseless prisoner causing harm that lawsuit was dismissed, because it was not of the same. Not same conduct as the case on which it was a presidential case, which was where a prison, a corrections officer punched a defenseless inmate. And the court said, and I don't remember the name of the case court said, you know, we're sorry, but that's the standard. And this is this is being applied all over the country to the people. I understand that but I, that was not in Vermont and it wasn't in the second second circuit. And it was a corrections officer. It wasn't a law enforcement officer. So if we're really serious about quality. About eliminating qualified immunity for constant violation of constitutional rights. Why don't we apply it to everybody including us, and I know. Meeting the legislature, including the legislature. I remember that discussion. Last week, you have absolute immunity. Prosecutors have absolute immunity. Judges have absolute immunity. That's not an issue. You can say anything. I know. That's what I'm saying. Why, why would we why not just eliminate immunity. Well, here's, here's, here's why police carry a tremendous amount of authority. You might not be in office. You know, next, next November. That's probably true. You might be voted out of office. I hope not but you know, police interact on a daily basis with citizens. They carry guns and badges and tremendous authority. And unfortunately, there are officers who abuse that authority and harm citizens. Okay, qualified immunity is the number one roadblock to holding these officers accountable. Their interactions with the public are different than a legislator or a judge or a prosecutor. It's a different level of involvement. And it's a legal check on. Abolition qualified immunity with further the legal checks on their conduct. I do awkward analogy, but I do understand that, but I just am most of the examples that are given. Don't aren't in Vermont and they're not even in the second circuit. So I'm just, and I so I realize that but anyway, those are just my concerns. What, what, what can I say to address those. Well, you can give me real examples I guess of where it's been unduly used in Vermont and the second circuit. I'm wondering if I would like to hear what Jay and yeah, I'm sorry. No, I, I, these, these are questions that need to be answered. Those going to compelling but I feel like we're basically, you know, an extended one on one rather than I know. Yeah, sorry. I'll just finish by saying, I don't have the answers for it. As far as Vermont or the second circuit. But J. J DS J's letter points out for Vermont cases. The letter of one 20. I believe they're Vermont cases. Keen versus Snyder. Kent versus cats. When field versus trottier. That door for cases but I only see three years. Jay, do you want to. Are you are you available. Please thank you. Good morning all. Happy to answer any questions again for the record. Yeah, the question basically is, what about Vermont cases. Yes, so Senator Sears, as you just referenced, we noted three cases that went up to the second circuit. Specifically, that were Vermont based cases where qualified immunity resulted in the, despite there being divided the court agreeing that there was a rights violation. The second circuit found qualified immunity applied and so the plaintiffs lost based on qualified immunity. In one of those cases the plaintiffs, due to their loss on qualified immunity actually had to pay the defendants, or was ordered to pay the the defendants costs so it can have pretty serious harms to plaintiffs even when the court acknowledges and agrees that their rights were violated. Keen versus Snyder was Mr Keen was questioned in his living room about a possible DUI troopers decided to arrest him on suspicion of DUI. Later dismissed by the state attorney and he refused to go with them troopers pepper sprayed him took him to the floor and repeatedly punched elbow to need him in front of his crying 14 year old daughter. The district court denied qualified immunity. The second circuit reverse granting qualified immunity, because the troopers action did not violate clearly established law, without deciding whether the force was excessive. That's one that struck me as particularly egregious that he, even a state attorney declined to prosecute, yet the person was punched pepper sprayed and so forth. Elbow in front of his crying 14 year old daughter. And even though the district court denied qualified immunity the second circuit reversed it. That is a Vermont case my correct. Yes that's correct. I think there was a there was two Vermont State troopers I, and I think what this gets to is that there are serious violations of people's constitutional rights, federal and state, as well as their other civil rights sex and what we find is that in some of those cases not all, but in some of those cases, if there's not clearly established law, the court is is compelled by its prior rulings and precedent around qualified immunity to say, you know the officer is not going to be be held liable here, even though we agree they violated the person's rights use excessive force, etc. You know violated their civil rights, discriminated against them, any of those kinds of things. The court could say yes, that's true. But, because of our doctrine of qualified unity which the legislature has yet to say anything about, you're going to protect this officer from liability or you know that they're their employer really from liability. And that's what this bill is about it's about removing that that hurdle that that that prevents people from accessing justice. When their rights are violated, when their rights are not violated. If there is no excessive force if there is no violation of their free speech rights or for their equal protection rights, then there's no case, then the case is over. This bill only support victims of recognized rights violations and ensure that they get some measure of justice. I just want to speak a little Senator white believes that Zulu created. What's your impression of that you heard her questions. Yes, I'll be happy to talk about Zulu, I was the cell you represented Mr Zulu. As I think you know we, you know I was my colleague and I Lee Ernst and I represented Greg. You know, it's a sort of five year case, all the way up to the Supreme Court and what the decision says to me, it related to this bill is one it says. Yes, it gives people the right under the Constitution to sue for constitutional violations. You don't need to worry about the proclaims acting I won't go into all that. The bigger, I think in the confusion is around two things one Zulu is unclear at best on the point of whether it's holding around whether plaintiffs can get a damaged remedy whether victims can get justice, essentially, whether that applies to the state only or to the state and municipal employees so that's left unclear. And that's because there's an absence of, of, you know, legislative direction. The second part and more importantly, is that what the court laid out as the test for whether victims of rights violations could get justice could get damages was based on qualified immunity. It's not the same, but it's a qualified as this court said a qualified immunity like test. And we believe that if the light and that was created in the absence again of legislative direction. So it's a valid that they're doing it because we don't have legislative direction that's the way we're going to go as a court. So it's incumbent upon you all to take to now I think invest that time and as you've been doing and and and make some decisions here about how how the court should act in these situations. And I believe it's very important that people be able to access justice and not have to jump over these hurdles which are presented by qualified immunity in general, and also presented in Zola. Thank you. Does that help Senator White. I wish I was an attorney. Because I really do find it all very confusing. And it, it is helpful but I do find it confusing. So I'll try to summarize it really succinctly Zulu does not cover the does not cover municipal employees that will have to be decided in later cases, and to Zulu creates a test similar to qualified immunity that still presents hurdles to getting justice for constitutional rights. Article 11 specifically. May I ask one more question, Senator Sears. Oh, where'd he go there. He's coming back now he must have jumped off. Okay. So what should the stand, should there be any standard at all, or should. Should people be able to just sue. If they feel their rights have been, I mean, should there be any standard at all. And I guess that's a question for Jay because you said that Zulu established a different standard slightly different than the federal standard but what what should there be a standard and what should it be, or should. There not be any standard, it's just, and, and again, I guess, and I know that that it's that police officers have huge authority and power over us. But the case that was that Mr. Myerson gave was a corrections officer, but we're not including them in here. We're not. Yeah. So, yeah, Senator white thank you for the question I think to answer the question. Should there be a standard, we believe that the standard should be where your rights violated. That's the question that we want to see asked, and that's the question the court has to ask right. We don't think there should be anything that prevents someone. If this is that question, yes, your rights were violated. We don't think there should be some this secondary test, or the secondary doctrine that says well only if they were violated in these in certain circumstances are certain ways. And the officer knew what they were doing or knew that knew the law knew they were violating the law we want to we just think that that is beside the point for as from a victim's perspective. And it's what makes victims feel like there's no justice, because when the court says to a victim of rights violation or excessive force, whatever it is. The court says to the victim, your rights were violated we agree with you. But you don't get any, any justice here. You don't get a judgment in fact the judgment is against you. And we feel that that's just, that's just not right. I think dick is frozen. He looks like he's frozen again. I know his internet is unstable. Yeah, up down and we'll drop back in. I'd say take over center, Bruce. All right. So, one second here while I just make sure. Ben, do you have anything you'd like to add here. You're muted then, then you're muted. Can Ben, can you guys hear me. Okay, I failed to unmute myself. So for the record, Ben Novograsky, Office of Legislative Council. I believe I can hopefully lend some clarity as far as the concerns and Senator white ways raised about the concept of what Zulu said as far as constitutional actions. You know, really with with that. Can I just break in Ben just for a second, I keep getting thrown out so Senator Bruce, please chair the meeting. This is my third time trying to get back in. Okay, no problem. Thank you. Go ahead. Sure. It was this concept of, and Senator right you were correct to the, to the degree in that the Supreme Court said that there are certain constitutional provisions that are quote unquote self executing that have an implied private right of action that you can bring to the court for remedy. However, the next step, or part of that analysis was even if you could bring an action, it was whether or not damages, or a proper remedy under the action you could bring, and part of the way that this bill was drafted would absolutely or reflect that language in the sense that the bills language kind of contains this self limiting language as far as constitutional action where it says, ones that provide a private right of action. What this bill would do was just attach a damages remedy to those actions that you can already bring. The Supreme Court said without legislative direction essentially that if there's another remedy for those violations, they'll look to find it. This bill is to provide direction to say that the remedy to be had is damages or money. So that's part of that so you're correct in the sense that you could bring them but this lens clarity as to what the result or remedy would be in those circumstances. And, you know, so I think that that was a point of confusion does that lend a little bit of clarity as far as those constitutional violations. It does thank you. I guess. What other remedy would there be. In that case specifically the state put forth a bunch of different alternatives. So you could do injunctive relief so basically saying that the state is prohibited from stopping vehicles that had covered registration stickers. I would say that you could bring an action under the federal statute section 1983. But as we've discussed the federal Constitution, the Fourth Amendment differs then our Vermont equivalent Vermont one provides broader protection so not all alternative would be adequate necessarily and so this is designed to just I think give consistency as opposed to where the courts have kind of have discretion on a case by case basis to decide one way or the other. And I think that also goes to the clearly established right issue that we were discussing earlier as well as that. You were correct I mean there is this is derived from Vermont case law in the sense that clearly established law just means that the contours of the right are sufficiently clear that a reasonable official would understand that what they are doing violates that is what you quoted before, but it's been interpreted that, you know, any lawyers love to debate and I think that again this is to provide to consistency for the courts, as opposed to the courts navigating it individually themselves. You know, so the purpose of this is to give some legislative direction to say that these are the rights that can be brought, and this is the remedy that can be sought, as opposed to the courts trying to do the analysis themselves on a case by case basis, trying to find similar circumstances to apply to a new case before them. Our agenda says committee discussion and next steps. And we're coming up on noon we have about 15 minutes left Senator Sears do you do you want to go there at this point. Well I think Senator White is, you know raise some important issues. Not the least of which is some confusion about different cases. I don't know if there's somebody who would like to speak from the opposition side on that on those issues we've heard from our ledge council we've heard from the opponents of the legislation jds and Brad Byerson. So I'm, I don't know if somebody would like to come on the other side. Will do would you like to comment. Well the white tougher Jones is here is also who works for an attorney for the Department of Public Safety. Maybe we can tag team and Tucker can talk about the cases and I can comment on other issues. And perhaps I'll start with. I'm speaking you know I have mad freedom, the organization I founded is opposed to this bill, and you know, I've been speaking here as also a policy consultant with Department of Public Safety, because you know our interest and concerns about the bill are aligned. And I'm not going to say now I haven't like run by anybody but I think it's important for this committee because these other bills from other jurisdictions were raised to understand a little bit about what those other bills have done. So I'd like to actually address that because I have talked about how this bill differs considerably from what other jurisdictions have done. And Brad Byerson alluded to those bills and I'd like to give you a little bit more detail about that, if I may. Yeah, I mean we've got about 10 minutes so I'll do it in less than that. Okay, so I talked about Colorado's bills so you know it's limited to count constitutional violations of the Colorado Constitution. It has a mandatory attorney's fee provision. It has a two year statute of limitations. And so I talked about that but what I'd rather talk about now is New Mexico in Connecticut, New Mexico particularly I think is a great example of good bill drafting. New Mexico eliminates qualified immunity for all government officials. They also have limitations on liability. So, like per occurrence, it's $2 million, and it goes up with inflation. That's responsible legislating. They also have a notice of claim provision so with one year of being injured, you have to file a notice of claim with the government. The government can actually manage the risk, right, because that's what you want to do the more information you have the more you can manage uncertainty. That's responsible legislating. They also have an explicit provision in the bill that it's not retroactive, very responsible legislation, a legislation because under this current bill, you haven't said one way or the other clever. I don't take exception to being called irresponsible. And that is very offensive to the chair to the vice chair and other members of this committee will die I don't know that you can say that we're irresponsible. I don't mean to say that you're, Senator says you are right to correct me if you feel like that's what I'm saying, I am not saying that what I'm saying is here is a bill that I think represents responsible You haven't passed any bill, you are looking at this and you're inviting people to comment to get to the best thing you can do. I wouldn't say you're responsible legislated you haven't even passed anything and that is not my intent to doing so. I welcome the fact that you've invited us to speak here and that's all I'm trying to do and if, and I apologize to anybody who thought I was contrasting your proposed bill, but you haven't passed on to these past bills. So thank you for correcting me because I don't want you leaving with that impression it wasn't what I was trying to say. Thank you. You're welcome. And the other thing that the New Mexico bill doesn't do. It doesn't aggregate all immunities right it only aggregate it only changes the qualified immunity. It doesn't change the statutory immunities or other amenities it's very limited. And then the last thing it does have a. It does provide for an indemnification provision makes clear that the, you know, any officer sued under the bill would be entitled to both legal defenses and the judgment. And then in terms of Colorado. And it's also limited in terms of, excuse me and the last thing they do is you don't have to pay if the officer or the officer has to reimburse. Excuse me. Excuse me so I'm going to go to. I'm going to stop and let Tucker talk so I know you're you're pressed for time. If you want to come back to Connecticut. Thank you. I appreciate that. Thank you. Hello. Hello, everyone. Hello, chair Sears Senators my name is Tucker Jones I'm assistant general counsel at the Department of Public Safety. Chair Sears would you like me to speak. Now, in response to your earlier question about this concern regarding Zulu. We just lost center Sears again. Absolutely Tucker. We have, we have only about five or six minutes for you but please go ahead. Sure. Thank you. Chair bruce. Thank you. Thank you. Thank you. Vice chair bruce. Okay. So I've been studying this issue for quite some time and I've been following the committee testimony and discussion about this and the Colorado bill and law ending qualified immunity. You know, expressly created a cause of action under the Colorado. The Vermont Supreme Court had already done that. They had already created a cause of action under the Vermont search and seizure provision there. And in your legislative council has explained this in the memo comparing the two bills about how it does that. The Vermont Supreme Court had already done that they had already created a cause of action under the Vermont search and seizure provision in 2019. And the Vermont Supreme Court, they explicitly and this is of what's particular of particular relevance I think for this committee is that they explicitly created an alternative to the federal clearly established standard. And they provided that a plaintiff may show that an officer acted in bad faith. They defined bad faith, which as something that may exist when an officer's conduct could be viewed as objectively reasonable, but is characterized by ill will or wrongful motive, including discriminatory cases. When you Google this case, as Senator White alluded to the second entry I think is a summary of the case by what looked to be legislative council I think Eric Fitzpatrick just kind of summarizing the whole case in about six pages. And there's a note in in there under a lot underneath this alternative standard it says no this was a rejection of the United States Supreme Court's approach under the Fourth Amendment. Since the United States Supreme Court had held that the officers bad faith is otherwise irrelevant. If there is a neutral and reasonable basis for the search or seizure. I would consider this decision critical to understanding the legal landscape surrounding qualified immunity in Vermont. Because it's important to understand that the bad faith showing that a plaintiff may make under a claim under article 11 is an alternative to the clearly established federal standard, the clearly established standard that has been criticized by national and legal commentators and it's just very important for this committee to understand that we already have a cause of action under the state constitution and the unanimous Vermont Supreme Court considered these issues in quite a bit of detail. They considered whether it was appropriate to have some limitation akin to qualified immunity and the unanimous Supreme Court considered that it was appropriate and necessary to do so. And I think that's just a very important thing for this committee to understand that the Vermont Supreme Court has already weighed this issue and they thought that some protections akin to qualified immunity were appropriate but they provided an alternative to showing bad faith by an officer from their discriminatory animus or otherwise. So this is a key point because the reason the some version of qualified immunity is appropriate is because the courts want to ensure that the government employee is on fair notice that their conduct is violating the Constitution when they engage in that and the Supreme Court discussed this by specifically highlighting how this affects law enforcement officers operating in the field. And I think it would be helpful to explain this they said having no protection akin to qualified immunity could create a potential flood of litigation for every alleged constitutional violation. That's not my language. That's a unanimous decision by the Vermont Supreme Court that's their language we're just we're just letting you know that that language exists. And then they go on to say on a daily basis law enforcement officers must make numerous decisions on how to handle interactions with the citizens particularly motorists. Even with liability falling on the state, rather than the individual officer, a rule that exposes the state to a potential sim civil damages suit, following every roadside stop, or whenever a motion to suppress is granted, could inhibit law enforcement officers from taking some effective and constitutionally permissible actions in pursuit of public safety. This would not be an appropriate result. I, that one of the highlights of this paragraph and they say it in passing is that whenever a motion to suppress is granted. And what they're referring to there is on a regular basis, trial courts criminal courts in our state grant motions to suppress, which by their nature, state that an officer's actions were in violation of the Constitution. Now, there is no indication in those motions to suppress that are granted that the violations are necessarily anything other than a mistaken, but reasonable belief by the officer that conduct was appropriate at the time. But what we would be doing by eliminating qualified immunity is allowing a civil lawsuit with for potential of attorney's fees following every single motion to suppress that it's granted because by its very nature, those decisions are stating that the that the officer's conduct was unreasonable. And as the Vermont Supreme Court indicated that is both that's not an appropriate result, because it would result in a flood of litigation after every single one of those cases potentially, but it would also inhibit officers from carrying out their duties that we asked them to do, because they would be concerned about a potential civil suit, every time a criminal court grants emotion to suppress. So that's the legal considerations that the department views around this bill. There's many many other considerations but I know we're out of time for today. So it's an opportunity to discuss that further. Okay, we'll give you that opportunity on Thursday morning. But what was the name of that case. That's that Zulu v state 2019 vt one is okay. You're quoting from Zulu, which has created a great deal of confusion. So why don't we pick up there on Thursday morning. And I apologize to everyone. Especially willed or if I was a little bit overly sensitive about the irresponsible versus responsible language. Perhaps I was a bit oversensitive. I appreciate you bringing it up so that I can address it. So thank you. Thank you.