 Good morning. This is Senate Judiciary, Thursday, January 20th, 2022. We're taking up a bill S-254, which deals with qualified immunity. And I'd like to offer an opening statement to begin the discussion and try to make clear some of the motivation here. It's important to ensure that the doors of our justice system are made open to those who've been armed, including those armed by wrongful government action. Civil court system is how we solve disputes, how we keep society peaceful in order. It's how we monitor access justice. George Floyd Tragedy inspired me and many of my colleagues in the legislature to dig deep into the intersection of civil rights and civil policing. We must find every opportunity to update our laws and do better. Like most people, I suppose they're essential to public safety. I also believe in civil rights and the right to redress if you've been harmed by the government. Since the tragedy of George Floyd, working together, we've improved fair and impartial policing policies. We've enacted modern use of force guidelines. We've improved police officer training. And we've supported universal body cameras, which have been an asset to both law enforcement and the general public. Now, in focus, there's a major gap in the law, which is ensuring access to justice for victims armed by unreasonable police. Oddly, the way it works now, with little rhyme or reason, some victims gain access to justice while others have the door slammed in their face, even when the police misconduct causes various harm. The doctrine of qualified immunity that sometimes shields police agencies and officers from accountability were wrongfully causing injury to citizens was created by the courts. The elected lawmakers and the Montt legislature have never directly looked at the issue of qualified immunity, which doesn't make sense. So I, along with several colleagues, introduced a bill modeled on recent bipartisan laws passed in other states such as Colorado. Bill would create a way for victims' harms by unreasonable police misconduct to seek justice and guarantee that every police officer acting a good faith is 100% financially protected or indemnified by their employing police agency. Before we introduce this legislation, I learned that the call for change comes from all sides of the political aisle, not just the left. In fact, Supreme Court Justice Clarence Thomas, who I don't agree with very often, has raised concerns about the absurdity of the application of qualified immunity in misconduct cases, calling the courts qualified immunity precedents, freewheeling policy choices. This conversation is not and will not be about tearing down police officers, but instead is about ensuring that people harmed by extreme negligent policing or the rare but unacceptable bad faith policing have access to compensation for their injuries. From a monitor that is harmed by an unreasonable violation of civil rights, loses work, sustained injuries causing medical bills, or has their reputation tarnished, the law should offer them more than sorry, no justice for you. Good luck, you're on your own. Fixing this law in a balanced way will help restore trust in community policing and boost police officers' confidence in their good faith policing. I look forward to hearing all sides of this issue. And when we consider it in the Senate Judiciary Committee, and if there is a better way to balance accountability and fair access to justice for all civil rights violations, I want you to know I'm listening. I am not stuck on just this particular solution. If there is a way to make the application of qualified immunity more consistent, we should do that. If there is a way to, another way to accomplish the goals, we should take that way. However, I don't feel we should be ignoring this issue any longer. And with that, I'd like to give you one example from my own district. When two police, two sheriff's deputies were driving to Bennington for a court hearing with two offenders in the back of a van, they somehow decided to get involved in a high-speed chase with a speeder on Route 7 itself. Now, I don't know all the details of that. And luckily, nobody was injured. But I got calls from several of the parents of these individuals. I got calls from my members of my community. When I called the sheriff, I was basically told of Bennington County. I was basically told, none of your business. This is a personnel matter. I'll take care of it. What am I supposed to tell my constituents? So what I told them was call the sheriff. But this isn't a great answer. If something had happened, what would been the redress for those families or those offenders who were in the back seat of the van? It troubled me. And so when folks approached me about perhaps introducing this bill, that was one of my motivations. So many of you who are on the other side of this have worked closely with me over the last 30 years or over the long you've been in government. I think you know me. I am a supporter of law enforcement. I'm not against police. I've never joined in a call for defunding or tearing down. All I've wanted to see is improvement. So with that, I hope that we will be able to do this in a take this up in a manner that is normal for the Senate Judiciary Committee to look into issues. If at the end of the day this bill doesn't have three votes in this committee, it dies. If at the end of the day we see that there are other ways to improve the system, then we should go forward with those other ways. So with that, I thank you for listening to me. I'm going to turn it over to Ben Noverkowski, our newest member of the Legislative Council who draft this legislation and work closely with the co-sponsors throughout the process. So Ben, if you would walk us through the bill, we'd appreciate it. Thank you, Chair Sears. Yes, Ben Noverkowski. I'm going to turn you with the Office of Legislative Council. And Senator Sears, with your permission, I'll share the screen to go through the bill. One moment, please. Can everybody see the bill? Yes. Yes. Before you start, a member of the audience, and I have no problem with live transcriptions and I've okayed that. I just want to caution that sometimes those transcriptions don't accurately reflect what was said. And so just with that word of caution, later on, as I understand it, YouTube fixes the transcription to what it was supposed to mean. And so generally, we haven't used it, a sense of member of the folks here have asked for that, and I'm going to allow it. Go ahead, Ben. Thank you. As you can see, this is S-254, an act relating to creating a private right of action against law enforcement officers for violating rights established under Vermont law. This bill proposes to create a private right of action against law enforcement officers for violations of Vermont constitutional, statutory, and common law rights. This bill also proposes to waive the use of qualified immunity as a defense in such actions and provides for qualified indemnification of law enforcement officers by law enforcement agencies. As a quick overview, before I get into the bill, this bill essentially does create a substantive private right of action available to private individuals against law enforcement officers. It has provisions that talk about certain defenses and immunities that would be precluded from being used in civil action. And that also talks about the award of attorney's fees to the plaintiffs and defendants in a certain action and goes through the liability coverage and indemnification by law enforcement agencies and by the law enforcement officer as well. With that, I'll proceed on to section one. And as you can see at the bottom of this page, section one creates a new chapter 190, entitled 12 of the Vermont Statutes Annotated, entitled Private Right of Action Against Law Enforcement Officers Deprivation of State Rights. Within this new chapter, there is a new section 5607, entitled Liability of Law Enforcement Officers. Subsection A of 5607 is a definition section. It defines law enforcement agency as having the same meaning in 20 VSA, section 2351A, as well as law enforcement officers in subdivision two as having the same meaning in that section as well. Law enforcement agencies are essentially any employer of a law enforcement officer. And the definition of law enforcement officer essentially includes virtually all law enforcement officers in the state, municipal officers, constables, state police, sheriffs, investigators, and so on and so forth. Subsection B is the substantive right of action that's created. It reads that an individual injured or damaged by the commission or omission of any act of a law enforcement officer acting under authority of the state or within the scope of authority of a law enforcement agency that violates the individual's rights guaranteed under provision of the constitution of the state of Vermont that provides a private right of action prescribed by Vermont statute or created by Vermont common law may bring an action for damages or equitable relief against a law enforcement officer. So essentially what subdivision B explains is that a person can bring a lawsuit against a law enforcement officer for any action or inaction that they made within the scope of their authority and they can pursue damages or equitable relief through that lawsuit. Subsection C explains that an act brought pursuant to this section is not subject to common law doctrines of immunity as a defense to liability. So that would cover absolute and qualified immunity. Subdivision 2 which reads that statutory immunities and statutory limitations on liability damages or attorney's fees would not be subject to this to an action here. Subdivision 3 are the provisions of chapter 189 of this title which is the Vermont Court Claims Act so that is carved out from this that an action brought under this section and then subdivision 4 is the provisions of 24 VSA chapter 33 subject to which is essentially the municipal equivalent of the Vermont Court Claims Act. So court claims brought against municipalities and their employees as opposed to state employees. In subsection D it reads that a court may award reasonable attorney's fees and other litigation costs reasonably occurred in any action brought under this section in which the plaintiffs substantially prevailed. When a judgment is entered in favor of a defendant a court may award reasonable attorney's fees and other litigation costs reasonably incurred to the defendant for defending any claims the court finds frivolous. So the first clause of subsection D essentially awards attorney's fees and costs to plaintiffs if they prevail in an action. The second clause of subsection D provides such reasonable attorney's fees and costs to the defendant if their claims are frivolous essentially meaning that if they didn't have merit to begin with. Moving on to subsection E it reads that notwithstanding the provisions of 3 VSA chapter 29 chapter 189 this title or 29 VSA chapter 55. A law enforcement agency shall indemnify its law enforcement officer for any liability incurred and for any judgment or settlement entered against the law enforcement officer for claims arising pursuant to this section except that if the law enforcement agency determines that the law enforcement officer did not act in good faith and under reasonable belief that the action was lawful then law enforcement officer is personally liable and shall not be indemnified by the law enforcement agency for 5% of the judgment or settlement or $25,000 which ever is less. So this section essentially says that a law enforcement agency must indemnify the police a law enforcement officer so pay for any judgment or settlement that may be found unless the law enforcement agency determines itself that the officer did not act in good faith and that their actions were not reasonable or that their belief that the action was lawful was not really reasonable and if that's the case then the law enforcement officer is liable for 5% or $25,000 which is whichever is less of the judgment. Moving on to subsection F Ben yes sorry real quickly I was muted. In that paragraph you just read it says a law enforcement agency shall indemnify and then it gives an exception and it seems to me that at the end of the sentence you're talking about what percentage of the judgment the indemnification will cover but it's written in such a way that it makes it seem as though those percentages or settlement of $25,000 whichever is less only apply if the person is not going to be indemnified. Right that so to clarify that would be the percentage or amount that the law enforcement officer themselves would be personally liable for if they were not indemnified. So that's a determination that the law enforcement agency would be able to make if they find that they did not act in that the law enforcement officer did not act in good faith and under reasonable belief that the action was lawful. So am I understanding it correctly that the law enforcement agency can indemnify the officer for the full amount or they can indemnify them for 95% I'm I'd find that very confusing the way that's worded. So and I understand what you're saying so in this case the law enforcement has an obligation to fully indemnify the police officer if they are found liable with the exception that essentially if they acted in bad faith and that's up to the law enforcement agency to decide then the law enforcement officer themselves is liable for that 5% and 20 or $25,000 and so yes they would still be liable for potentially up to 95% or whatever amount is less so essentially what it does is that it doesn't I think I I see what you're saying I I think what it actually says is if they acted in bad faith they shall not be indemnified for 5% that that doesn't say they will be indemnified for 95% which is what I think you're you're reading it to me well it's really an exception the presumption is that they are indemnified and they're required to be indemnified but it just gives the law enforcement agency the discretion to determine the law law enforcement officer's actions and yeah I I mean and and we don't need to get into the this level of it here but what I would say is and this is maybe a quarrel that I have with the legal profession as a whole you know this is one one sentence paragraph long and it creates so many bizarre um potential misreadings I would think if we went forward with this this should be broken up into a couple of different um sentences that that make it very clear what the law enforcement agency is is on the hook for and what they can get off the hook for because I I I don't know this is know this is just very very oddly worded I think okay I'd be happy to you know make an attempt at some clarifying language for subsection e um and just from my understanding essentially just to separate out is specifically what the law enforcement agency is bound to do and then the exception itself yeah and make that make that language a bit clearer yeah that would help me that would probably help I think it's clearly the goal here is to allow the municipal or state agency to indemnify the officer unless the law enforcement agency determines that the person did not act. Senator Sears could I ask a question? Yep um Ben while you are contemplating Senator Baruth's question I'm looking at this and wondering if a plaintiff comes along and sues both the officer and the agency can the agency cross claim against the officer I'm not digesting this enough to understand whether that would be a possibility so if you could do a little research on that it would be appreciated. Okay I can do that. Why don't we move along to subsection F? Oh Senator Weider did you have a comment? No no I had it I had some questions but I would like Ben to continue through the walkthrough first. Okay I'll I'll continue on to subsection F. In subsection F it reads that notwithstanding any provision of the section to the contrary to the extent that a law enforcement officer's portion of the judgment or settlement is uncollectible from the law enforcement officer a law enforcement agency or the law enforcement agency's insurance shall satisfy any such uncollected amount of the judgment or settlement so this essentially ensures that a plaintiff will get paid if an officer is not able to pay themselves and so the law enforcement agency or the insurance company is obligated to satisfy any amount that the officer cannot pay for and in subsection G this is the statute of limitations portion where an action brought pursuant to this section shall be commenced within three years after the cause of action and section two is the effective date and the actual take effect on July. Okay if there's any questions I have a dog in the background that I have to you could take over senator bruce for a second. Sure. Ben that's it for your walkthrough. I have some questions of Ben. Senator White. Thank you. So Ben this I think this is a question for you that this do people now not have the right to sue a police officer period? Well there's no direct private right of action that would not be subject to qualified immunity under state law. There are various avenues I mean for individuals to sue law enforcement officers they can do a section 1983 claim which is a federal an action that can be brought in state or federal court for a violation of federal rights and anybody is free to sue but whether but qualified immunity is a defense that is often brought in such action against government officials. So what this is saying is that this is giving the this is eliminating the ability to use qualified immunity as a defense in all cases. Correct and yeah that is covered in subsection C. Yep so I have a couple more questions if I might. Senator Baruth. Please. So this I might be mistaken but we are talking a lot about civil rights and the violation of civil rights but this does not apply to a violation of civil rights. Am I right because civil rights is under federal law? Well this would apply to civil rights under Vermont law and that is covered outlined in subsection B where it talks about the individual's rights guaranteed under a provision of the constitution of the state of Vermont providing a private right of action prescribed by Vermont statute or created by Vermont common law. So this would be page 2 lines 8 through 10 and that's the difference here as opposed to a section 1983 action which is for federal rights and Vermont rights for instance can often be more expansive than a federal right and therefore this provides an opportunity for redress for a violation of those rights and ones that are prescribed by statute are created by common law in Vermont. And we do have we do have statutes and common law that protect civil rights? Well it would be certain things for instance like common law like negligence of a negligence claim would be a common law action that could be brought but right now the Vermont Torah Claims Act while that exists that's something that can only be brought against the state itself not against individuals and there are statutory rights for instance you know excessive use of force and things like that that could be potentially brought under this. But my understanding is that a civil right under the federal civil rights act that civil rights is an action taken because of somebody's because somebody belongs to a particular class that that's the difference between a civil right and a constitutional right. Well civil rights are often derived from a constitutional right so for instance a civil right is right to privacy or rights against unreasonable searches and seizures or so things like that which are derived from federal the United States and Vermont constitutions. Okay I'm I'm still confused by that but I don't want to belabor this but I do have a question about this only applies to police to law enforcement officers right? Correct okay so if if the one of our Capitol Police violated someone's constitutional rights they would be covered that person would be covered under this and would not be able to use qualified immunity as a defense but if the sergeant at arms violated somebody's constitutional rights she would be able to use qualified immunity as a as a defense. Yes as long as any law enforcement officers so yes and I'm not I don't believe that the sergeant at arms is certified as a law enforcement officer so if she's not then correct she this would not apply to her it only applies to certified law enforcement officers. And the same would be true for a game warden who did it could not use qualified immunity but the commissioner could. Correct as long as they are not certified as a law enforcement officer. Okay thank you. Philip I have a question please. Please Senator Nica. I'm just wondering with regard to section E page three again with the insurance piece what if a department doesn't carry insurance what happens there I know it says they shall do it but if they don't and they don't have it what happens then in terms of a violation here? Well if the insurance they don't carry insurance I'd have to do research into this but there may be I think I believe there is an obligation to carry insurance but I would like to research more into that for a law enforcement agency but if there is no insurance and the claim can't be paid then the plaintiff wouldn't necessarily be awarded any money you know you you can't there wouldn't be a mechanism in which to pay at that point. I see and I have one other question with regard to at some point in that it appears that to me that the agency who might find the officer did not act in good faith might just might choose that route in order to protect themselves in terms of them having to have the rates raised on their insurance. I suppose it's possible but there are a lot of you know within title 20 there are a lot of internal affairs procedures that law enforcement agencies need to adhere to in order to make sure that any investigation of its officers is is done in a proper way so while anything is possible I would say that's probably unlikely to happen because of the construct of the internal affairs procedures that law enforcement agencies are subject to. Okay thank you. Thank you for that. Sorry Senator Sears. Senator Peruzko ahead. Ben I think I figured out what is bothering me about page is this page sorry page 3 subsection E so it says notwithstanding a law enforcement agency shall indemnify its law enforcement officer for any liability that's one case then it says accept if the officer did not act in good faith then the officer is personally liable. Now to me that says that the LEA is not liable the officer is liable but then there's this additional clause and shall not be indemnified for five percent of the judgment so when I read that the officer is personally liable that suggests a confusion to me about whether the law enforcement agency is going to be liable in other words why why are they liable for 95 percent if the determination is made that the officer is personally liable so that's my confusion and and it's kind of unnecessary I think because it would be very easy to say that if the officer is did not act in good faith he receives only 95 percent and be done with it or the $25,000 whichever so that's however you want to frame it but getting into the idea that the officer is personally liable and then somehow still implying that the LEA is 95 percent liable in that case is confusing. Okay I think that really that determination about what that dividing line is between percentage or whatever is really kind of a policy consideration but as far as the language itself to kind of clarify it I'm happy to parse it out a bit more to make it clear that the law enforcement agency is essentially presumed and obligated to indemnify except in the situations of essentially bad faith where the law enforcement officer would be but no they they are even in bad faith they're 95 liable correct so so that's the confusion is to say that in one case they're not they're they're liable in both cases for either 95 or 100 percent. I think this can be straightened out rather as long on the bill I think the issue is today you'd find most police agents these are liable for 100 percent unless there is individual actions example being some of the cases nationwide or there are even cases where individual officers are being sued and their police agency indemnifies. This is based on Colorado and that we can work on that. I think we're getting I'd really like to get to the witness. Go ahead Senator White. No I just that brought up another question for me when you said that right now the LEAs are are liable when somebody is sued and and so I'm confused about what we're saying in this bill is that currently people can be sued but when they go to court they can use the qualified immunity meaning that they acted within their scope of practice as a defense what we're saying here is they cannot use that as a defense is that do I understand that right they can be sued but they cannot use that as a defense in court yes that's correct okay the let's move on are there any other questions about the draft thank you Ben for going through it Yeah my pleasure Senator Sears and I'll take a shot at clarifying the language in subsection E and get a draft returned. At this point Senator Sears I'll cease sharing my screen and give it back. My first witness Dave Diaz from the American Civil Liberties. Senator Sears we we can't hear you when you face away and you can hear the dog well if I took a Jay please welcome to Senator Jerry another stranger here. Welcome back. Thank you thank you Senator Sears and thank you all for having me and for taking up this important issue for the record my name is Jay Diaz I am general counsel with the ACLU of Vermont. I'd like to start just by thanking Senator Sears again for his opening statement he's correct this is a bipartisan issue and the ACLU comes at it from a nonpartisan as a nonpartisan legal and policy organization we're interested in protecting civil and constitutional rights and we think that this bill moves the ball forward in important ways to do that. So I'd also like to thank the committee for its police reform efforts over the last several years it's been great to watch Vermont lead the nation in a number of areas where we can seek to reform policing improve it and ensure that accountability is meaningful. So I know that we're here talking about S-254 what's really the crux of the issue is removing qualified immunity and I heard a lot of the questions about some of the legal issues and I'm happy I can answer those or I can try to my best to answer those as a lawyer later in the testimony if you all like but I guess first since we're here to talk about qualified immunity let's talk about it what is qualified immunity what's important to recognize is that qualified immunity is a court-created doctrine it's about 50 years old a little more than that and what it does is that it basically says when the government official violates someone's rights the victim doesn't necessarily get access to justice what it says is that they will they could go to court and they might be that that case might be dismissed very quickly it might be dismissed very quickly might just dismiss at the end simply because there was not already clear law that is beyond debate that the government official knew or should have known that they were violating the person's rights this is a heavy standard it makes it pretty difficult for people who have been victimized either with egregious rights violations or serious injuries to actually access justice and be made whole through our court system so that's really you know and it's not all people but it's some and that this is why this is an important fix that the legislature needs to make but why does this doctrine even exist it really stems from the important value and foundational principle of courts that they're not going to create new damage liability for other branches of government so it's about separation of powers so for 50 years the ball has been in the legislature's court to take this up legislatures around this country and in vermont but now this committee thanks to as 254 sponsors senator sears senator baruth senator ballon and senator ron hillan hinsdale for the first time in vermont's history a committee of the vermont legislature has the opportunity to take a look at this issue to see where our stands when it comes to addressing civil rights violations and ensuring access to justice for victims of those violations the issue of vermont believes that it's a natural extension of this committee's work and of the legislature's recent work to end qualified immunity to ensure public accountability and i'll talk about the reasons why we think that's so important in a few minutes i just want to go through what i'm going to talk about quickly feel free to ask questions as i go through i'm happy to uh have this be a dialogue so just quickly i'm going to talk about why we need to end qualified immunity and why that's so important access to justice i mentioned police accountability ensuring trust in the judicial system uh forwarding racial justice and because the public supports it broadly uh i'll go over the few sections of the bill where there have been some questions i'll respond to a couple of the concerns that we've heard from uh some members of the law enforcement community and then i'll be happy to answer any other questions so most importantly ending qualified immunity in the courts is about uh is about removing these insurmountable barriers for some victims of police misconduct now i come at this as a litigator as someone who's been a civil rights lawyer for the last 10 years in the month and in every civil or constitutional rights case that comes our way that's about damages against government employees or work of employees violated someone's rights we have to do this qualified immunity analysis and that's because there's this question that's left always hanging out for every case around civil constitutional rights when you're talking about government officials and that is this question of as i mentioned before whether there's quote-unquote clearly established law and that clearly established law just as an aside may never exist because courts are allowed to skip over in any given case whether they need to actually look at the right itself they can just say the right's not clearly established whether it's true or not or whether it's whether we would find it or not so we're not going to do an analysis of the fourth amendment in these facts so we're not going to do an analysis of the first amendment on these facts we're just going to say the law is not clearly established so um government officials are going to get qualified immunity here but it's even more complicated than that it's even more difficult for victims to access justice and that because not only do you have to find clearly established law to that applies to the facts of your case and that's virtually identical but you also need to find an appellate decision in your jurisdiction that does that that appellate jurisdiction needs to be formally published which many many decisions in the circuit courts and in the federal courts in particular are not published and so that we're talking 50 to 70 percent of decisions the cases again have to have virtually identical identical facts not just those identical facts but also facing the same legal questions and of course it can't there can be any cases in the same jurisdiction that call that clearly established law into question the courts have said it needs to be beyond debate now as a lawyer i'll tell you it's very difficult to get to beyond debate when we talk about civil and constitutional rights and your senator bedding can know what i'm talking about here because that's our job our job is to uh to distinguish cases and to show that things are not beyond debate or that they are beyond debate but it's it's a challenge to say the least so even if you pass through all of these hurdles or you pass over all these hurdles even then qualified immunity can still be the death knell of the most egregious rights violation case including after trial and a full jury verdict because cases can always be distinguished so qualified immunity creates these structural barriers that prevent meritorious cases of rights violations from succeeding from making those victims whole many people actually won't even be able to bring cases in the first place because of qualified immunity because attorneys know can look up pretty easily whether clearly established law exists and have to weigh those risks of whether it's worth investing hundreds of not thousands of hours in a case which is going to be you know which can be very complicated and very time consuming of course and work intensive investing all that time knowing that even if we win with a jury and the jury says yes you violated uh this person's rights were violated that the belief or the the fact that clearly established law didn't exist that the law at issue was beyond debate means that qualified immunity may prevent any liability and may ensure that the victim is never made whole and never receives justice so I can give you just a few examples of cases they're in the written testimony we've submitted go through them quickly here the first cases that can't be cats case these are all Vermont cases by the way that went to the the federal courts so in can be cats an officer did a wrist lock maneuver on a suspect and broke that person's wrist the case went all the way through the jury and the jury agreed yes excessive force fourth amendment violation but the jury then was forced to say because of what the law says that because the officer believed what they were doing was was not wrong and didn't know that it was illegal that that officer is immune for liability and so that victim the person had their wrist broken uh is is is left uh without any sense of justice no judgment in their favor can be Schneider another case uh a man was uh let the police in his house and then when they wanted to arrest him on suspected uh charges which were later dismissed he was uh pepper sprayed thrown to the ground beaten in front of his crying 14-year-old daughter because he wouldn't put his hands behind his back same thing here the because clearly established excuse me because clearly established law did not exist there could be no liability and the officers were immune in windfield v trotter officers uh an officer performed a warrantless search and of a vehicle and while doing that search found a piece of mail and decided to open the mail and read it now this is something we can all agree is pretty well known that you don't read another person's mail uh and you certainly and certainly the fourth amendment article 11 in vermont say you know we're sick we got to be secure in our papers this is a pretty serious violation and the second circuit noted that and said yes violation of fourth amendment right no question and still here qualified immunity applied and that's because there was some debate in the courts about in this particular circumstance where the witness or where the um plaintiff and victim gave general consent to do a search whether an officer whether that meant the officer could also read the person's mail I think we could all say that it's we wouldn't think that that would be the case other cases in the second circuit have had this similar problem it's just a case that was mentioned in the law enforcement written testimony and uh it's from 2019 the kajini case a woman was handcuffed so tightly that she ended up having permanent nerve damage in her wrists and in that case the court said yeah there's a lot of similar cases and we've said that tight handcuffing is it can be excessive force but in this case because the officer did not uh because the woman only said ow a couple times and made some cries but didn't say more they were gonna grant qualified immunity despite you know what they assumed would be excessive force so if we remove qualified immunity from the equation we remove an unjust barrier that prevents victims like this and others from being made whole as 254 ensures that meritorious claims were excessive force or rights violations are found in the first place that those people can achieve justice and not be denied on this technicality this is the most important thing the most important reason we need to get rid of qualified immunity in vermont there are many other reasons why we should get we should remove qualified immunity in these instances uh of course police accountability is an important piece of the puzzle here but it's not about particular law enforcement officers this bill actually has very little to do with and very little impact on individual officers this bill is about and I think qualified immunity is about incentivizing municipalities state government and law enforcement agencies themselves to prioritize uh that are hiring training and oversight practices to prevent rights violations this will create a culture of accountability officers are largely held harmless except in these limited circumstances which you've talked about and but and greater accountability is really important here because it creates greater community trust that's what is necessary to good policing and that's what all law enforcement believes they need is community trust and right now we're still in a moment where that is not there but this will help create that not only will create trust in greater trust in law enforcement but it will also create credibility for the system when victims and I'm talking about the judicial system most importantly here when victims don't have access to justice it undermines the credibility of the entire justice system people see qualified immunity just get see cases get dismissed on qualified immunity the most egregious cases where people just cannot believe their eyes that a court would say you don't you don't get to be made whole here so if we end quality by immunity there will be less public confusion over egregious cases and we'll make sure that those victims can receive justice people believe they should have their day in court police in right now they get their day in court but victims don't this will not mean necessarily we know the outcome but we will ensure fairness in the system just a couple more here there's also a racial justice aspect of this qualified immunity is a long-standing long-standing facet of systemic racism perpetuates systemic oppression a standing between those who are disproportionately likely to be victims of police misconduct and violence and the justice they deserve and of course there's broad support for this bill nearly 75 percent of Vermonters in a recent poll said that they support eliminating qualified immunity for police so i'll be happy to just go through the bill very quickly and just to speak our opinion on what bill has to say and again i'm happy to answer questions as we go along i know there were some about provisions in the bill so we've talked a lot about the provisions that remove immunity from from law enforcement officers so i won't go through that and i just want to talk about two others the attorney's fees provision i want to emphasize that this is a discretionary provision that would which is similar to the federal what's available under the under federal statute section 1983 it allows the courts to have have discretion to provide attorney's fees where a plaintiff substantially prevails so that's in the court's discretion in our experience courts still don't like to or still reluctant to provide attorney's fees if you look at what happened under the public records act we had to come back and make sure that courts that the statute said that courts shall provide attorney's fees because because they're generally reluctant to do so this only gives courts that discretion in leeway and then finally talking about indemnification i know there are some questions on this right now we indemnify all police officers in vermont municipalities indemnify officers and the state indemnifies officers except in limited circumstances where there was gross negligence or willful misconduct even then officers are typically indemnified by choice of the state and so we think it's likely we think you know continuing to give that choice to municipalities and local governments and state government about whether they will hold their employees would have any measure of liability in keeping with this in keeping with the normal what's typically been done in the past in vermont but adding in a particular incentive where an officer is acting in bad faith at least we'll hopefully do more to prevent the most egregious cases so just responding to a couple of the concerns that i've heard raised in in written testimony you know some some have said that this won't impact the accountability at all and i would just say that removing a barrier to accountability and justice increases accountability and access to justice period it's not complicated while this may not what while not every case is going to be prevented from accessing justice because of qualified immunity some definitely are and that is what we're trying to resolve today i also want to make sure it's clear this is not about singling out police officers this is about access to justice for victims and as i mentioned before in fact this this bill before you actually has very little direct impact on law enforcement officers this is about fixing a problem that has been before the legislature for 50 plus years a problem created by by court doctrine and and now we have an opportunity for the first time to right that wrong to say where the state stands when it comes to civil and constitutional rights violations how we will make victims whole the only reason that we that this building starts with police officers is really because they have the most awesome power of any state employee or any municipal employee and with great power comes not only great responsibility but also must come great accountability and we believe that this will bring that accountability to the system itself ensuring that proper hiring training and oversight so again i'll close with appreciation for the judiciary committee's work to improve access to justice and police accountability this legislation is necessary and and it's a continuation of the work that you all have already been doing for the past several years the time is now for the legislature to decide for this first time whether qualified immunity represents good civil rights policy in vermont we say it is time to end qualified immunity to protect vermont's constitutional civil rights in our courts but we strongly urge you to support this bill that would remove this unjust barrier to victims of police misconduct move us toward a law enforcement culture of accountability create a greater trust between law enforcement and communities they serve so with that i'll stop and happy to answer any of your questions but i thank you for your time and attention thank you j i'm very i have one question and senator white and there may be others i think it's fair to say no one likes frivolous lawsuits yet over the years talking to corrections commissioners the number times they're sued is was like unbelievable uh because it's rather than just a group how do we get um filter out some of those more frivolous lawsuits that um i think there's a lot of fear in the law enforcement community they're going to be forced every decision they make in general results of none of a frivolous lawsuit how do we distinguish between those and serious kinds of cases and i and i agree that part of the problem that you've identified and others have identified with qualified immunity is there's no consistency in what cases um give the police officer qualified immunity what cases don't so i wonder if you could comment on those two absolutely thanks for the questions and yours here's so let's just start by saying that in terms of filing lawsuits anyone can file lawsuits against anyone else it's it's not something that really can be prevented beforehand what this bill does is say if a frivolous lawsuit is filed that that the filer is going to be liable for the costs and fees of the defendant so that's one way we can disincentivize those kinds of lawsuits and I think this bill does that in a in a way that's common among other other pieces of legislation that we've already taken up and I also don't see that as as being realistic here thankfully when we look at Colorado, Mexico, other other places that have recently reformed qualified immunity or eliminated it we're not seeing a wave of frivolous lawsuits thank you senator white thanks thanks j good to see you again I um I do have a couple questions and I know that you said that this does not um single out police officers and that they have a lot of um this is not meant to single out police officers that police officers have a lot of of authority and and responsibility but this does single out police officers because others also have a lot of authority and responsibility this does not address the um the uh commissioner of corrections if he violates or she violates um someone's constitutional rights it my two examples of the capital police and the sergeant at arms it would not identify it it does single out police officers so if we wanted to get rid of qualified immunity as a as a defense why would we not do it for everyone instead of just singling out police officers because the commissioner of fish and wildlife might have a lot of um authority also as might the sergeant at arms or the town manager who is actually the employer of the law enforcement officers yeah so I understand the concern I think what I say is that the asial year does not have uh any uh opposition to covering other public officials you know corrections officials or others however we start with law enforcement officers not just because of the great power they have but it's also the the power they can and and are authorized to use in public in everyday interactions in in spaces of general freedom and that includes the power to use force and exclusive power to use force and at some times um use deadly force so that is unlike any other public employee that that's out there and so there is you know with that great great power um we think it's important to have uh stronger mechanisms by which victims of that power when it comes to constitutions of the rights violations can receive can can be made whole after the fact and it's the it's the state it's the it's the government entities that employ these officers that are um are going to be taking the action to to make that person whole so it's mainly around the physical um ability of the law enforcement officers to to impose physical harm on people as opposed to um um any other any because all those other people would have the same rights to uh are the same ability to um violate constitutional rights but they they don't have the right to use force i don't think so and that's because it's not only that there's the ability to use force but there's the ability the ability to arrest there's the ability to search uh and search people on the street search people while they're in their cars going about their business uh of daily life and so this is where you know a long-standing constitutional doctrine really comes from it's it's about protecting people in their daily lives and so where rights violations occur to people uh happen to people in their daily lives that's what we're saying that's where we need to make sure there is some ability to access justice thanks thank you other questions for j senator benning jay good morning um i keep hearing the term made whole and i just want to be clear as to what your experience is we require every law enforcement agency to be equipped with insurance to cover situations where people may be injured in such a way that um you can classify it the officers fault or whatever you want to describe it as but if they are injured there is a remedy there for them to pursue i don't believe any of the cases you cited uh involved individuals who were prevented from getting a remedy of some sort because we require that these agencies be insured the difference here when you use the term be made whole is that they've been prevented from also getting a remedy from the officer directly and like misconstruing something there yeah i'm sorry for any misunderstanding no we're we're talking specifically about what uh whether it's an insurer insurance company or the the entity that the government entity that's going to be indemnifying the officer we're just speaking about victims being able to access damages or it's being able to mean that's what our system provides people to be made whole our courts don't have other mechanisms other than providing for damages and attorney's fees to compensate people for for their rights violations or for their injuries and so that's all i'm talking about i'm not speaking here about uh holding police officers um that making sure that that that um that it's not about any anyone's particular resources going to a victim it's about it's about just making sure that the victim is able to access the justice they deserve i just want to be clear that this is not the situation where a plaintiff either gets something or doesn't get something the only real question is what pockets they can actually get something from um and in my case i've been a lawyer for a few years normally i would if i was representing a plaintiff go after everybody i possibly could in a given situation and see how many pockets can produce a remedy but i want to be clear here that we're not talking about a bill that is going to give somebody something that they were otherwise completely deprived of i think that's an important distinction to make because i i i don't believe any of the plaintiffs that you've cited were prevented from getting a remedy of some kind but in the way you've described it is not getting uh whole justice is that they were actually prevented from getting something out of one particular pocket am i clear as mud that's accurate i think that thing that's accurate i think the yeah in the case as i cited um when you go to federal court uh over a rights violation of a police officer you are you sue the individual officer that's required by federal law uh and so these cases were specifically about the actions of the officer and the officer is of course indemnified so you're always in the in the end if you're able to get a damages award it's always going to be from the officer's employer and so uh but you're forced to name the particular officer so it's not about any particular pocket it's actually what qualified immunity did in these cases is is say nope you yes you had a rights violation but no you don't get to collect from anybody to compensate you for the injuries you sustained okay i did raise a question earlier and i was hoping you could give me an answer i'm still trying to digest the language but is there anything here that prevents a cross claim by an agency in the event that they are sued as well as the officer um to fight for some damages from the officer him or herself so i think that that is possible under current law where an officer uh or if the state or the government entity believes the officer acted with gross negligence or willful misconduct and similarly that would be i suppose possible here where the government agency believed the officer acted in bad faith which is very similar okay thank you under white i will say that i will say that it's very rare i i have never seen it happen and um it's kind of an open question in current law i've never seen it happen even in cases where there is gross negligence or willful misconduct government entities will typically indemnify and represent the uh the government employee throughout that process well now we have qualified immunity and i would guess you've never seen it because once a an agency pays out i would assume that the same qualified immunity could be applied in a case of an attempted cross claim um but i i want to think about it further thanks uh using my example the sheriff's office um it's none of my business so i wouldn't know what but because i had something happen so i as a citizen a taxpayer wouldn't be privy to any information that didn't come as a result of the lawsuit so all we know is settlements happen i've been i've seen i believe three in the last two years in vendington where there's been settlements for each case they never got to trial i don't know what you know i'm not here to talk about individual cases but you know we as taxpayers are left scratching our heads as to what happened senator baruth and then senator white thank you jay good good to see you um it was a long time ago an education committee we were working on uh issues there but good to see you in this context um i find myself going back to page three of the bill and um i'll just read the language uh a law enforcement agency shall indemnify its law enforcement officer for any liability occurred uh dot dot dot except if the law enforcement agency determines that the law enforcement officer did not act in good faith and under reasonable belief that the action was lawful now i'm i'm struck by that because there's been a judgment that constitutional rights were violated that harm was brought to this individual and you know restitution is going to be made but then there's a second judgment made by the law enforcement agency whether to hold the officer personally liable and that seems to me still like a very uh favorable state of affairs for law enforcement um that no money is going to come out of their pocket personally unless their own home agency their own fellow officers say that they acted in bad faith um that seems to me a real protection under this bill for individual officers uh who have been found to have committed a violation they still have what i would imagine in practice is a very good chance of not being held personally liable by their home agency so i i have been confused a little bit by the argument that some people have made that this targets police officers or that it will ruin their lives this still seems to me a very advantageous circumstance to have the final determination of whether somebody's personally liable be made by their employing law enforcement agency and i'm wondering if you can just comment on that i think that's absolutely correct you know the fact that currently law enforcement is indemnified and most of these circumstances and that they will continue to be indemnified meaning that no money is ever going to come out of their pocket excuse me uh for for anything they do even if that action is unreasonable even if they violate someone's fourth amendment rights in an unreasonable which which by definition is an unreasonable search of seizure or unreasonable excessive force they still might not have any personal liability all right in the sense that that any money is going to come out of their pocket the again you know police agencies are uh and it's important in some ways that they are protective of their officers uh they don't want to see them harmed it's only in the most egregious cases and you've seen this because only in the most egregious cases are officers disciplined or fired for misconduct that they would even consider making this kind of determination in my experience at least i'm mindful of the time and i'll finish finish up the last thing i want to say is i i think some people have a view of this bill that it leaves the individual officer at the mercy of uh you know a tort system gone wrong it doesn't um it's it's really their own law enforcement agency that will make the determination of whether they are personally liable so um thank you very appreciate it thank you very welcome senator white final question i'll wait i'll wait thank you i want to move on to thank you jay very much for being with us and uh appreciate it good always good to see you great to see you all thanks again and happy to come back anytime okay um i want to announce for the record we have to close at noon time and so anyone um at the end of the schedule who needs to leave or has a problem if you could let piggy know um we'll try to accommodate you today or accommodate you at the next time we have this meeting our next witness is uh public safety commissioner uh michael shirling and welcome to senate judiciary good morning senator thanks for inviting us in on uh this topic um for the record mike shirling i'm the commissioner of the department of public safety i my testimony i believe will be uh relatively short i'm gonna provide a high level overview of our position and will the white who's also an attorney will provide quite a bit more scope in depth to the department of public safety's position you should each have a position memorandum that is authored and cosponsored by a host of organizations both inside and outside law enforcement um and for the first time uh in the i'm not sure how many years i've been coming before your committee senator uh there is unanimity uh in physician and uh and i will note another difference that normally i am here to try to find a path to yes to try to figure out how to make a bill work i think we have a long history of collaboration uh and work toward operational improvements and important to note that law enforcement has been driving modernization for a couple of decades now um and unfortunately has gotten uh almost no uh credit for that effort in recent years um but this testimony is quite different i'm going to testify briefly as i indicated um and i should simply note from the outset that uh we'll get to this whether it's today or on a subsequent day that our legal analysis outlined in the position paper and the testimony you will hear differs dramatically from that which the ACLU just testified to there is unanimity among public safety professionals on the position here we are not here to try to make a bill better we are here to tell you this is not a good piece of public policy this abandons the progress that we're making in favor of opening a very wide lane of litigation um it's important to note i think as it's been sort of tangentially mentioned but not directly called out that all government employees are covered by qualified immunity that includes legislators teachers firefighters folks in every agency and department of state government all municipal employees um and to say that this isn't targeting law enforcement is just not accurate this is a bill that exclusively targets law enforcement for the removal of a key legal doctrine that the vermont supreme court has noted as late as 2019 rightfully protects against a predictable flood of litigation using their words it's part of a national campaign to end qualified immunity and it's important to note that policing is not national what is happening in other states examples of cases that you're hearing about in other states simply don't bear resemblance in most instances to what happens here in vermont policing is local and the application of qualified immunity is also local and on a federal level it is regional policing in california new york or even a city as close as uh as boston uh bears little resemblance to the way policing is done in vermont and i can't overstress that this is quite simply a backdoor to dismantling law enforcement operations and to defunding it's just a different approach it if this is about a flawed legal doctrine it is curious to me why this isn't being contemplated as a change to qualified immunity across the entire spectrum of litigation why it is only law enforcement it's important to note that this initiative already has contributed to exacerbating an ongoing staffing crisis in public safety and if this were to pass it will dramatically exacerbate exacerbate that staffing crisis and a number of officers will leave and those who choose to stay will have no choice but to disengage from critical responses in some instances because they will simply not know where the ground under them is because it will be invisible we should be investing in professionalizing reducing errors increasing consistency and not simply putting the taxpayer on the hook for a very expensive bills and insurance premiums and litigation costs and attorney's fees that strikes me that the taxpayers would be much better served if they were fully informed of what qualified immunity is by investing in good public safety rather than trying to address serious issues after they have occurred this effort is regressive it addresses misconduct or errors after they've happened rather than investing in trying to improve outcomes at the front end we don't do that when it comes to things like healthcare or education we are not talking about disinvesting and figuring out how to sue teachers and healthcare workers for bad outcomes the key ingredients have been mentioned here but I disagree with the method to get to those key ingredients our modernization strategy outlines those keys good leadership and law enforcement organizations and in government great hiring practices good training supervision policy policy evolution good selection of supervisors good disciplinary processes good oversight etc and though the tapestry of those things is what will create the organizations that we want and the outcomes that we're looking for our brief provides a detailed account of our position the impacts how the courts have addressed qualified immunity both in vermont and the second circuit and as I indicated differs dramatically from the assessment you've heard so far it also gives an assessment of the cases of concern that you shared senator that were the basis for concerns around qi in vermont and I think that's incredibly illuminating put simply in increasing litigation is not going to improve our outcomes it's not going to improve our law enforcement agencies um it may do exactly the opposite uh and it's far afield from anything I've ever seen as a policy initiative in vermont it simply doesn't strike me as the vermont way to solving problems go to a courtroom and increase litigation so that's my that's my testimony in a nutshell that position is shared as I indicated with by a host of organizations by every law enforcement agency in vermont by the vermont league of cities and towns um and I can't overstress the level of concern uh and frankly sadness that this is where we're at relative to our approach to uh trying to improve the operations of government I appreciate your time and will do will have a far greater and in-depth analysis thank you um appreciate your testimony senator benning has a question or comment commissioner real quick um are you aware of any insurance that is available to an individual officer who is about to become employed that would cover them in this particular situation we're doing some research on that now senator in the event that uh this were to come to pass we believe it exists it is incredibly expensive and we I think in order to make it function it would be something that would eventually fall to the taxpayers the collective bargaining units would be in negotiations looking for the taxpayer to cover the cost of those premiums because uh frankly we don't pay people enough uh to be able to afford them okay thank you any other questions for commissioner sure commissioner and I do have that document um I believe it's the same one that michael neal sent out is that the same document it is it is uh again as I indicated for the first time in the 30 years I've been doing this as unified a position as as I've ever seen um it would if Mike is on or if you can uh send a copy of that to Peggy to be posted on the webpage of the judiciary committee certainly apologies I thought that had been done but I'll do that now uh I noticed it wasn't on there and so that would be helpful uh with a public senator wait did you have a question or comment I thought I saw your hand anybody else for commissioner surely commissioner thank you very much appreciate it thank you and uh well continue the conversation on this and a host of other issues um our next witness or would you rather Senator Sears when you bend down we can't hear you I'm sorry for my um would you prefer to take a short break now or wait until after the next witness I would love a five-minute break if that was is okay with will da I actually will there's not the next oh but she'll be coming up on well it's 10 28 so why don't we get back at 10 35