 So, this we're taking up S one H one 45 use of use of fourth bill that seeks to amend the bill that we did last year. During the interim session on use of force would let Bryn kind of walk us through. H one 45 as passed by the House. And it starts out with standards for law law enforcement use of force. The whole bunch of definitions. So, okay, could also identify where we differ from last year's 119. That's interesting. So, good morning committee for the record Bryn here from legislative council. I did send Peggy a document this morning that is the bill as passed by the house with some notes in the margins that show how the bill differs from Act 165, which was the bill you worked on last year, creating the standards for law enforcement use of force. So, I'm going to go through this bill I'll just point out while everybody is pulling that up. Oh, actually, would you like me to share my screen, and I can do that. Okay. All right, can everybody see. Yes. Okay. Okay, so H one 45 is the bill that amends Act 165 that was passed last year. And it also amends some provisions that were passed in Act 147. And you might remember that bill also is dealing with the professional conduct chapter for law enforcement. So, I'm just going to start just a second, Bryn. I'm looking at what at the hard copy that was mailed to us. That probably doesn't include the notes because I just sent Peggy the document this morning. And he sent the official copy. So all the beginning is crossed off. You have to go to page eight. Right, I, I did and one second. It's also posted on the website if you want to look at it that way. Okay, I see so it's actually bottom of page seven. Yeah, where it starts. Okay, yeah, I'm good. Okay. So if people are looking at hard copy documents, I'll just, you know, point out where the changes are. But if you want to look at your screen and see the, see the marked up version I, I created you can just look at your screen. So I just want to start out by saying that the H one 45 really creates two policy changes from Act 165 as it was passed. And the first is that it changes prohibited restraint. Was that phrase that we defined in several different sections of law changes that definition. First of all changes prohibited restraint to choke hold, and it changes the definition of what a choke hold is. And I will go through that at the beginning. Another policy change that's made is that within the standards if you remember the standards that passed in Act 165 did not contain a specific prohibition on the use of a prohibited restraint but it defined it as prohibited restraint. So in H one or an H one 45 there is a specific provision that says the law enforcement is shall not use a choke hold, unless it is justified, pursuant to the standards. So those are the two substantive policy changes that are made here. There's also a technical correction that's made. I'm shuffling around of the order of the language in the standards. So I just want to set the stage here for what the what the differences are, because you're, this is going to look like all new language, but because it's all underlined. But because these standards haven't taken effect yet. What we have to do is we have to repeal them entirely and reenact them in totality. So you're not going to see any strike throughs or anything like that in the standard it's just going to look like all new language. Is that clear to everybody. Didn't, didn't the standards take effect. They are scheduled to take effect on July 1 of this year. Got it. Okay. Okay, so that was that took a while for the other body we had some we had to because of all of the new members there was kind of a lot of explanation of why this looked like totally new language but it wasn't. Okay, so section one. First of all, we've got right here. First definition is the definition of chokehold. And can everybody see I tried to make the font as big as possible. Right here on the right is the is prohibited restraint as it was defined in Act 165. So here is the new definition of chokehold use of any maneuver on a person that employs a lateral vascular neck restraint, carotid restraint, or other action that applies any pressure to the throat when pipe or net manner that limits the person's breathing or blood flow. This definition is somewhat more streamlined than the definition from Act 165 if you can see over here I'll just read it just in case you can't see the old definition from Act 165 is use of any maneuver on a person that applies pressure to the neck throat when pipe or carotid artery that may prevent or hinder breathing, reduce intake of air or impede the flow of blood or oxygen to the brain. So the house did hear some testimony from various witnesses, including a witness from mad freedom Vermont that that definition was a little clunky. It may create some elements that aren't necessary. So, there was a recommendation that the committee take a look at the definition of chokehold that was passed in the Massachusetts police reform bill in December. And so some of this language comes from that Massachusetts definition, but it really is kind of a blended a blended definition between the Massachusetts version and the Vermont version. I'm going to keep going unless I see questions. So the rest of the definitions on this first page are the exactly the same as they were in Act 165. So on a page to amount totality of the circumstances and you can see in yellow, I've highlighted in yellow additional language that was did not appear in Act 165. And this I'm calling a technical correction because I don't think it was the intent of the committees to not include the conduct of the person or persons involved in the definition of totality of the circumstances I think that was inadvertently omitted. So this makes sure that the totality of the circumstances includes the conduct of the person or persons involved in the law enforcement interaction. Not only the actions of the law enforcement officer leading up to the use of force. Okay, I'm going to keep going down now we're in subdivision be this is the remember these are the standards that govern police use of force generally. And the only change here is that be one is now the language that used to appear in before. So you'll remember this is really that significant section that deals with that provides. What is the analysis that's going to be used for a lot law enforcement officers use of force. This is that objectively reasonable standard. So this was moved up from before to make it clear that this is the standard that the court is going to use an analysis and analyzing police use of force. And to also make it sort of mirror the way section subdivision C is set up and you remember that's the subdivision that deals with the police use of deadly force that analysis. And how the analysis takes takes place is set out right in C one. So we're doing the same thing here with be all of this language is the same. None of this has changed at all from Act 165. So unless you want to go through it again, I'm just going to keep going. This is language four and this language that appears in B seven law enforcement officer has a duty to intervene when the officer you observe another using the chokehold on a person. This language used to appear in C six and Act 165, but it was moved up to the subdivision be that deals with the use of force general. This is all the same language as appeared in Act 165, but now here on page five. This is the new subdivision that I mentioned earlier. This is the new language that provides law enforcement shall not use a chokehold. Unless deadly force is justified pursuant to that C one through four, which are the standards governing law enforcement use of deadly force. So those are all of the changes that were made to the law enforcement standards for use of force in Act 165. And the rest of the bill amends both another another section of law that was in Act 165 and then a few sections of law that were the past in Act 147. And these are pretty straightforward because essentially what the bill does is it just changes that definition of prohibited restraint to chokehold throughout the various statutes where prohibited restraint appeared. I'm just asking about chokehold. Um, is this just for law enforcement officers, or does it include workers with DMH DOC DCF. Anyone else who's dealing with people who is either contracted with or works for the state of Vermont are they under the same provision regarding chokeholds. And so I'm concerned here that was setting up a special standard for law enforcement to use this as a restraint. And then we have this last I knew they were still looking at charges for several workers at the inside program who allegedly used improper restraints. They're looking at criminal, they were looking at criminal charges. I haven't heard the resolution of that. I just wonder if we're setting up a double standard here. The definition this applies to law enforcement officers is defined in 20 vs a 2351 a. And that includes Department of Public Safety, State Police, Capitol Police, Municipal Police, Constable motor vehicle inspectors. There's a worker and lottery who exercise law enforcement powers, investigator employed by the Secretary of State, Board of Medical Practice investigator employed by the Department of Health, investigators employed by the attorney general or a states attorney, Gordon's sheriffs deputy sheriffs railroad police officers. Police appointed to UVM police services. And the provost Marshall or assistant provost Marshall of the National Guard, so would not apply to those other individuals. Can I ask a question about that. Well, I still haven't had, you know, I still I would like to know. Before we go much further here, what are the standards that the Department of Corrections uses. What are the standards that the DCF uses and what DMA chooses for their employees or for contractors with the state that provide services. And I don't think you can have, you can say well law enforcement can use a chokehold, but if you're a worker at the Department of Corrections, and you use a chokehold you're going to jail. Could I ask a question about that. Are they, since this limits it to the instance where it might where deadly force is justified, are those other people ever ever allowed to use deadly force. I mean I think that's the distinction here is that law enforcement officers are in a position at times to use deadly force and I'm not sure that the DCF worker would ever be in a position to use deadly force. No, in a restraint at a correctional facility I guess one can argue. Right so the, I mean, I've, I've, as I've said when we walked through Act 165 the these standards really operate in conjunction with the justifiable homicide statute which applies for law enforcement officers that same list of law enforcement officers that I just mentioned. So that may be another another way to think about it. Okay well. A question about I'm, I'm on the highlighted portion subsection six. And that's pretty clear, but I'm wondering, does anything in how the bill is restructured now change either the criminal penalties or the professional penalties that were in place. Those remain as they were. Yes, those remain and that's what we're going to get go through now. As I mentioned those professional penalties, nothing changed by the penalties only the definition of primitive restraint was changed to choke hold. So, to the extent that that definition is different. Okay. So I'm going to keep going here and just jump to section two. This is the law enforcement use of choke holds now from prohibited restraint this is the crime that was established. In Act 147. So, again, the change here is just the definition of choke holds. And also I've highlighted this here that this is to make it clear because you've included in the standards that it launched. You can't use a choke hold unless it's necessary and defensive human life. We've added this provision in that section of the of the crime that provides law enforcement who employed choke hold in violation of the standards can be prosecuted under the statute if serious bodily injury or death results. I'm going to keep going to section please. So, this is that provision from Act 147 about that provides that the criminal justice counsel shall not offer approving any training of prohibited restraints this is just change that to choke hold. And the corresponding definition is later in the bill. I do have a question about that. So, if, if this is going to make this explicitly and allowable use of force in the last instance to prevent death or death of another person. And it's going to range it with, you know, use of say a firearm which is another option for use of deadly force. We train people in the use of a firearm. So, was there any attempt to try to say we need to be training people in the use of a choke hold if it's going to be an allowable use of force in the one instance, because that's that's a seeming contradiction to me because what, what we're doing here is we're, we're, we're not precisely making it not prohibited, but we are saying that there's an instance where it would be legal to be used. But we're continuing to say here it can't be trained. And so I'm just wondering, does, did that strike anyone in the house as potentially contradictory. Yes, it did. There were members of the committee that raised that point. Because I, I was glad we got the prohibition on training the choke hold. And one of the reasons for that was, you know, the officer who is charged with killing George Floyd. As I remember had trained in the use of the choke hold and that would be part of the defense. So, I wouldn't want to change the provision on training, but it seems to me that it sets up at least an argument for someone to make. Well, if not now the next year because it seems as though the house has no problem coming back year after year on this bill. So I just want to raise that as something for us to think about. I think that's important to think about. We're not going to train you on it, but that's where actions happen. I had no training. How do you, how do you know that you're doing it in a way to cause the least damage. I mean I, I don't understand how you, how we can justify using it is as deadly force but not train on a proper way of doing it. I don't get that. I think we've identified two issues for some of the witnesses that may want that the committee is concerned about one is. I personally am concerned about typically department of corrections or have been cases where the OC workers lives have been in danger. They're accused of using restraints that ended up in the depth of one individual at least I can remember way back when was David Turner. So, their use of restraint and their use of other. What are their standards. Secondly, and it may also I'm thinking of the Woodside workers who are now under scrutiny at least and I haven't heard the results of that. We're in proper use of restraints. What are we training them. How does that that and then this issue of whether or not it makes sense to allow a chokehold and not allow anybody to train. So, we've identified two major issues for the committee I think thus far. Maybe it's just me on the, on the other agencies. Well, I would, I would say just quickly that, you know, we had, we had two sessions of work on on the related bills 119 and 219. We were, we came back twice or three times to the issues, and we worked out something that I that I thought worked well last last session. So it doesn't surprise me that if we come back to it again and take out a piece here or a piece there, other pieces start to fall. And that's I think what concerns me is we're, we're now on a path toward moving back toward the use of the chokehold in in very limited circumstances, but then that has repercussions for the band on training and, you know, Mr chair we've had back and forth and appropriations about funding the training and why we needed to wait. And I, I suspect that this was part of the need to wait was to try to change the training so that it can include chokeholds. We can ask the witnesses, but that's a, that's a fear I have is that we wind up successively undoing more than we think we're undoing. Mr. Shirley, did you want to comment on your, your schedule just the next witness. Can we take this down now. I'm going to go into the bill so. Oh, you're not done yet. Okay. We have to, we have two or three more sections. Okay. Do you want me to keep going or do you want to. Commissioner Shirley may have had a comment regarding what we were just talking about. I'm happy to do it during testimony, if necessary, Senator, I just thought it might inform the committee's current discussion relative to training. Just two quick things. One, the request for training funds that we had in place or have in place and the timeline for training have nothing to do with trying to create training around chokeholds. The reason that we believe we can that this would be fine without with a ban on training. Now you may hear from other folks that there are some advantages to, to doing the training which go along the lines of some of the things that committee members observed that in the rare, very rare instance, I should be really clear. We're so rare that we're not able to find records of chokeholds being used as a substantive method of restraint so this is not something that happens with any frequency whatsoever. But that said, you may hear from others that there are, there are some benefits to training. The Department of Public Safety's position is, as written, we do not meet we don't believe we need to train on chokeholds because they would be an improvised technique, if lethal force was necessary, in much the same way that hitting someone with a vehicle, striking them with a flashlight, hitting them with a rock, hitting them with a two by four, all would be permissible uses of lethal force while not part of training in an instance where you're fighting for your life. So it would be likened to that. I'll stop there and pick up the rest later. I appreciate that. Yeah. Thank you. Why don't we go on to section for the justifiable homicide. Okay, so this section is the same as it appeared in Act 165 except for a couple of changes. And if you remember these changes aren't going into effect they're scheduled to go into effect July one which is when the standards are scheduled to go into So the changes here are just that we've corrected the cross references in the provision that law enforcement is guiltless if they use force in accordance with the standards. Section five. This is that section that appeared in Act 147 that adds conduct to category being misconduct entitled 20 unprofessional conduct chapter. And as I mentioned before, this just changes the prohibited restraint definition to the new definition of chokeholds. And going back to in 2305 one. If it's a forceful event. It's a professional person attempting to commit murder sexual assault doesn't matter who it is right. Right. It doesn't need to be your parent, your child. I'm thinking of the case where we, some of you may have seen in New York City, the Asian woman age 65 being stomped and punched white while to security guards. Evidently we're just watching and did call 911 but didn't make any attempt to stop the beating of the woman with this. This would still allow them to go and to try to suppress that. Yes, this would have excused their. It doesn't take. It doesn't need to be the person's spouse. No. No, there's no restriction. In B2 and are you looking at B2 forceful or violent suppression of a person attempting to come. Yes. Yeah, I'm looking at B2 because that actually this morning. In the press there's quite a bit of criticism of the two security guards and we just watch, including some from the mayor of New York City. Can I ask this is maybe a little off topic, but is it really the case that if I murder somebody who's burglarizing someplace if they don't have a weapon. I can kill them. And there's no penalty for me. I mean you as a person. Yes. Yeah, it says if a person kills or wounds, he shall be guiltless. If I'm suppressing somebody who's burglarizing or robbing. So that means I can just kill somebody who comes into my house to rob it whether they're armed or not I always thought it was equal amounts of force if they were armed you could use armed force. It seemed like it's open season on somebody. If they're in the act of robbing. How would you know if they were armed. Well, I'm just saying like, it seems as though in our law. If somebody's robbing even if they're robbing a small amount you can kill them. That that seems a little medieval to use. Is that right, Bryn? So that's, that's, I wouldn't say it's medieval. Don't ask Bryn if it's medieval. Thank you. I mean, you know, it's, it's kind of like. I don't know. Anyway, I think if somebody's breaking into somebody's breaking into one's own. You don't have to ask if they're armed in order to suppress the, the act. Well, but it doesn't, you don't know if a burglar is going to result in an aggravated sexual assault sexual assault murder, etc. It doesn't say in your home it's not home invasion. It's if I witness somebody burglarizing or robbing I can kill them. So that, that is how the justifiable homicide statute currently reads. Right. And we, we took out a bunch of other foolish language master mistress. I'm just like maybe at some other point we want to think about. You know, I believe there are. Does burglary imply it's into a place. Robbing doesn't robbing doesn't the burglary I think implies that it. I think the definition of burglary is. There's burglary into an occupied dwelling. Yeah. It's helpful. Yeah. Yes. Robbery implies. That burglary is being is part is part and parcel of the crime. Burglary does not. And as Bryn just pointed out, there's burglary to an occupied residence. And you can have burglary to other structures, including things like sheds. We actually flagged this as the review was happening last year. And as Bryn has written, justifiable homicide would allow a homeowner to kill or seriously injure a person who's burglarizing their shed. So there is a loophole here for certain types of structures that you might want to clean up. Interesting. You could say an occupied dwelling. And you can have burglary to other structures, including things like sheds, we actually. We're getting a playback. Somehow commissioner, your testimony is playing back. It said somebody's watching on our YouTube. Oh, yeah. Well, I just want to, we should flag burglary. Well, I'm, you know, I'm thinking of a kid. I used to deal with you. Be your own person claimed that he just leaned up against the Chad. And the door opened. So I went in and took the stuff. But it wasn't his fault. The door opened. Well, there was a note saying take the stuff. If the door hadn't opened when he leaned up against it, it wouldn't, he wouldn't have taken the stuff. So it's not his fault. Doesn't, doesn't robbery include if they were robbing a person's own body? I mean, I think we come back to this. And get some testimony on it. I think you, Senator. You raised a point here what. You know what, you know, what, what are we referring to with? What statutes in the, in the green books? Sure, we can come back with that. I can also send the committee the links to the statutes for, for our robbery and burglary if you like. I think it also might want to make clear that it's not. The group in one. Unless it's less. Right. I think that, that two is completely different from one. It does say or. Yeah, I think. Yep. I didn't just should make it clear because. Right. This is section three is where. We. Yep. Section subdivision three is where you're referring to law enforcement. The, the defense for law enforcement. And again, we've just corrected the cross references there. Yeah. Took out all the stuff about rebellions and riots. Right. This was all, this is all what you did last year. So it's all the same except for the. Those new subdivisions. So I'm going to keep going to section five. And I think I actually walked through this already. I don't know if everybody heard that this is that. I don't know if everybody heard that. I don't know if everybody heard that. I don't know if everybody heard that this is the title 20 unprofessional conduct. We've just changed. What. The definition is for choke holds. Because that's now category B prohibited conduct. Section six. This is that section that limits the criminal justice council's ability to sanction an officer for a first defense of category B conduct. And this appeared in act 147. That was in the first defense. That was in the first defense. That was in that limitation. So that a first defense of use of excessive force. Placing a person in a choke hold. Or failing to intervene when another officer places a person in a choke hold. That can all be sanctioned as a first offense. That's more of a government operation. Yep. I mean, that was in, that was in 147. So the change here is simply that it were swapping out a person in a choke hold. Section seven. This is the section that just deals with act. One 65. We've repealed the justifiable homicide. And standards from act one 65 as well as their effective date because we're recreating them here. And then another important thing to note is that. The effective dates makes the standards for use of force for law enforcement. And the justifiable homicide statute changes. So we bump out the date by three months. From act one 65. What, what was the rationale on. On that, Bryn. To give law enforcement more time to create their policy. Nice to ask question. So. In terms of just. If there's no training on a choke hold, although the definition is in here. How does that, how does the. Another officer observing it know that someone's in a choke hold. Is in a choke hold. Is in a choke hold. Is in a choke hold. Other than other than other than if you've been on a few fights yourself, maybe. Well, the definition. Describes what a choke hold is pretty clearly. And the definition will. In all likelihood be a part of law enforcement. Policy, but they will be trained on. Okay. So they will be trained on what it is. Yes. Which seems like. Maybe someone needs to show them, but. I don't know. Yeah. I mean, I think I'm sure commissioner. I don't know. I don't know. I don't know. I don't know. I don't know if it's strong, but I, my understanding is that they are not. Currently being trained on these types of restraints. And that. I don't believe law enforcement took. Had had any issue with the, that section three. That prohibits the council from training on, on these types of restraints. I'm not thinking they need to be trained to know how to use it, but just do they know what it looks like. In other words, I don't know. I don't know. I don't know. Maybe everybody thinks that everybody does, but. We do anticipate senators, Mike. Again, that. There is a cross section of training that will occur relative to choke holds, but not how to employ them, but how to escape them if you are in a. In a fight. So to the extent that there's recognition necessary. That probably would check that box. Okay. Where is the section on the ban on training? Section three. Oh, right. Yeah. Section three. Okay. Any other questions for Bryn. Okay. Why don't we go right to commissioner Shirley. Department of Public Safety. Commissioner welcome. Thank you, Senator. It's a pleasure to be with you this morning. I think I will be relatively brief in terms of direct comments, but happy to answer any questions. We appreciate the work that's been done on each one 45 by the house to create some additional clarity and improve upon the work that was done in act one 65. In the background, we've done extensive work with a variety of partners on policy development and the beginnings of framing training. That will be an extension of act one 65 and whatever passes this session. I think generally one 45 brings some needed clarity to enable the final policies to be created and the training to be developed without making substantive alterations to the. The spirit of what was passed in one 65. If we, as we get into training and we engage, you know, 2000 or so officers and supervisors and executives on this, it's possible that we could identify some other areas where clarity might be needed, but we have not yet. We'll certainly report back if that happens. With that as the backdrop, there really are two. There are two areas where we think there could be some modest improvements made to the language that has made it to you. A total of nine words that were suggesting be added. And they both fall into. Section subsection small B. Sections one and five. In order of importance be five. We'd like to add the words. I think that's one of the things that happened in response to that request was to rearrange the paragraphs to put B1, which used to be B4. At the top, which we do think helps a bit. But the commissioner. I'm, I can't tell where. I'm. I'm. Page one. We talked with the house committee about this extensively. They took. A testimony on it from, from others as well. One of the things that happened in response to that request was to rearrange the paragraphs to put B1, B2, B4, B3, B4. I'm. Page. Yeah. Page three. Of 10. Five. If feasible. When a law enforcement officer knows that a subject's conduct is resolved. Can you. The section again and the numbers, because our pages are different. Could we put it on the screen? That way. I know we can't see it. Yeah. That'd be great. Senator Sears. This is Joe Benning. For some reason or other, I'm getting a message on my screen that tells me the host has blocked my video. No idea why we would do that. We had a meeting, Joe. I think Penny did that. We don't like your tie. Okay. Now. I'm supposed to start my video. Let's see how it works. I'm back. We see you again. And you changed your tie. So now you're welcome. So we're. What you see on the screen. What the commissioner is recommending is the words. If feasible. When a law enforcement officer knows that a subject's conduct is the results of medical. So the reason for that request is that. We agree with the spirit that. If someone is impaired. It's possible that to the extent feasible. The response to that, to their behavior. Should be altered. If it is possible, but it's not always possible. I'll give you a real life example of a subject. It's not feasible to take into account the fact that there was an altered mental status in responding to that. It was a successful outcome without substantive use of force, but. That was by. You know, confluence of events that allowed it to play out that way. So there are instances where. Someone's impairment can directly be taken into account and we can alter a response, but there are other instances where it's not possible to do that. And as written that this paragraph could be taken alone by a court. As a mandate that we somehow alter. The response, which again, is a. Always feasible. So that's why we're asking for that. Language to be added. We don't believe it's substantively changes. The spirit and how it will be implemented. And certainly the policy and training will extend. The emphasis on. Taking those things into account and ensuring that to the greatest extent feasible. We're, we're making alterations. But again. Not always feasible or possible. Commissioner. If I could. I think what you're suggesting. Renders the whole paragraph. Doubly conditional, I would say, because it's already. Conditional. It's. It's when a law enforcement officer knows something, which they may not. So, so in the, in the cases where they do. And then it's, it's really the lightest possible language. They'll take that into account. You know, that doesn't say very much in terms of. What their ultimate conclusion needs to be. Just that they need to. Ex post facto be able to justify what they did. In terms of how it also took that into account. So. It seems like by putting if feasible on the front of it. We're again, we're making it what is already conditional. Then almost. I would argue almost uselessly conditional. Because the officer could just say it wasn't feasible. And so I didn't do it. I would have to disagree, Senator. I think what it does is it allows us to more clearly create policy and training. And without that. You know, it. I don't know that the language as written is as conditional as you suggest. It says you shall take into account and determining the amount of force appropriate to use. It doesn't say how. And it doesn't necessarily say that you, that it's optional. It says, if you know that the subjects. Conduct as a result of some kind of impairment. So use this. You could use many different examples. You know, I don't know that the language as written is as conditional as you suggest. It says you shall take into account and determining the amount of force appropriate to use. You know, it says you shall take into account and determining the amount of force appropriate to use. Many different examples. So don't take the sword as a, I'm not trying to be flamboyant. It could be. Two by four. It could be. Could be anything. It's not clear how we're supposed to change. The. The response. But this. Paragraph as written. Says you shall take the information into account. So we're trying to create a. What does taking it into account mean? It means. It becomes one of a potentially infinite number of factors. And maybe the other factors way much. Rather. When we come back to this after what, when we get to mark up on the bill, but I. If you want to keep going on that. I've never mind. May I ask a question about that, Senator Sears? Yeah. Yeah. So commissioner, where did you suggest putting the, if feasible at the very beginning? I would think that it would. The. That it more rightly belongs in the. Last. The phrase there, the officer shall take that information into account in that that's where. That's where it would be long. I think that's accurate, Senator. I think that's a good question. I think that's a good question. I think that's a good question. If feasible or to the greatest extent feasible or. Yeah. Maybe there's other language that threads this needle in a way that. I think I understand where you're going, but I think no qualifies everything here. No. It doesn't. I don't think so because you could know that. In the case that the commissioner gave the example he gave. We knew he knew that there was an altered state. But I think that's where it belongs. I think that's where it belongs. And it's the officer shall consider that information. To the extent possible when. When determining the amount of force. Because you. You could know that they were altered. And. It still might not. I think we're getting. Getting the cart for the horse here. Okay. But I just point out one good example. And that. Be a person's in a car accident. The officer who's investigating. Leaves the person is impaired. But there's no sign of alcohol. So they take him to the drug recognition expert. Which takes all this time. The person's. Blah, blah, blah, blah, blah. You know. And it turns out the person has a concussion. But. That's an actual. Here. Yes. It's similar. Okay. Nevermind. I'm tired of her. You're right. Senator Sears it. That example could be extended to someone suffering from. Diabetic keto acidosis, which is causing an altered mental status. And that's in part why we think some clarity. Additional clarity here would be helpful that. It appears to. Mandate a pivot in action that isn't always possible. I don't disagree that it could use some. Further clarification. I'm not sure if feasible is the right place to do it. And Senator White pointed out that may not even. You know, having it at the beginning. It might be, you know, because there are cases where you just don't know. That the person's suffering. Whatever. I would say that's the rule versus the exception. It actually takes a medical testing to determine what the. The. More of the reasons for embedding social workers into police. Into barracks. In part, that's true. I have some suggested language. Okay. So in the last section there, it says the officer. Shall comma as much as possible, comma, consider that information when determining the amount of force. I don't think that there's anything necessarily wrong with that, but I just, I think the language already says that. I think the commissioner is pointing it out. I think in the way that people do, when there's a shell, they, they would prefer that it not be a shell that it be. Somehow more conditional than that. But it says. All it mandates is that you take the information into account. Which is. It's a metaphor for saying there's an account that has numerous things and you're going to give them relative importance. So in the case of the sword. It doesn't matter that someone might be drunk. There's a sword flashing around that obliterates other considerations there. You have to defend against the sword. So taking into account. Doesn't demand by law. A change in the appropriate use of force. Just that it be considered. So. I don't know. I don't know. I would just, I would just offer Senator, we're specifically not asking for the shell to be changed to a should. We're trying to find a way to, to keep the shell. Right. With the requisite modifier. I would also observe that. When you make it conditional, you're saying. If then, then shall. And, and that's a way of. It is a way of weakening the shell, which. I don't, I think it's already weak. Very as weak as it could possibly be. Because it's just asking that the officer. Take, take something into mental account. Okay. Can we go on to your next concerns? Commissioner. I can, if I may, just one final observation, having spent hundreds of hours on the witness stand. Probably more than half of them being cross examined because that's the nature of the way the system works. I can anticipate the types of questions that will come relative to this section. That will not track directly with the committee's discussion. It will be an effort at. Trying to pin an officer down about whether they, whether they did not follow the shell. And this dovetails directly into the next point, which is. I would say this section. Be five little be five needs clarity. I concur. And I appreciate any work on it, including any additional suggestions. Senator bruce may have to, to. Keep the spirit without watering it down, but just creating the clarity we think is necessary. Okay. So my final point dovetails into the, the other suggested edit we have, which is in B one. So going up three paragraphs. We continue to believe that some language that indicates that the assessment in that section one. Could you go up. This is one of the decisions by law enforcement. Yes. And I think that adding some language that indicates that this is without the benefit of hindsight. And that is in large part because much of the. Much of the existing. Training and. The ability to train. Going forward. You know, you know, how far back someone is supposed to be looking. In their assessment of what was objectively reasonable. And setting up the new standard. We think that. Ensuring that without the benefit of hindsight is important. Because it's, it's very easy and we do this when we're supervising officers and often are, are guilty of being. Occasionally unreasonable with them. And then they're saying, well, you know, two days ago, you should have done X and then maybe this wouldn't have happened. You wouldn't have lost this piece of evidence or this response wouldn't have gone this way. And there's just often. Often it's very easy to, to make connections of dots appropriately or inappropriately. With the benefit of hindsight, but it's very difficult. To connect those dots in a fast moving situation. So we believe that without the benefit of hindsight has a. A meaningful place somewhere in this paragraph. Doesn't it say that it's the perspective of a reasonable officer in the same situation. It does, but there's no temporal restriction on that right now. So, but that's when the same situation is. I think there's language to be added around the, the temporal definition of a situation that would address what we're concerned with here, but. I mean, it, it. Honestly, it seems very clear to me, a reasonable officer in the same situation. It seems like if you add in without the benefit of hindsight, that, that seems more like. Then you're, it sounds like a defense for the person. It's, it's what a defense attorney might argue. Well, in with the benefit of hindsight, we might have done something different. But this is a, this is a more objective standard, which is a reasonable officer in, in that same situation, which is the same time, place and totality of circumstances. If that, if that would help commissioner showing. To say of a reasonable officer in the same time, place and totality of circumstances. I wouldn't have a problem with that. But benefit of hindsight seems to me to edge around to. A sympathetic frame for the person who's. That may. I'll leave that assessment to some of our partners at the. Attorney general's office, state's attorneys and others, but that may. That may alleviate that concern by just adding a couple of words after situation, including time and place, comma, based on the totality of circumstances that could do it. Okay. Okay. Commissioner anything else on this. No, I thought I would be brief. It didn't. It wasn't as brief. It was, it was to the extent that. We focused on a couple of issues here. I'll just flag one other thing, which is now anticipating that this may not become a final until potentially as late as may. It may make sense to look at the timeline for implementation as well. We have to, once it's final, we have to finalize the policy. Create the training and then deploy it to roughly 2000 people. Assuming may that would give us four months. It probably could be done in four months, but it would be quite a rush to do so. So maybe some additional timeline to. For implementation may be helpful. I think that's a good point. We'll also defer to the eight B, which is September 1, 2021. Commissioner. I'm remembering from appropriations. We had the, we put in the overtime money. My memory was that. You, your testimony was with that. If we gave you that, you could make July 1st. We were in, that's correct. We were anticipating. We thought this was going to come out on a faster timeline. So we had to get it done. We had to get it done. We had to submit it and, and get it. Potentially to the governor for signature. Pretty quickly. So I also did testify that it's, it was conceivable that we could. Differ into 2020. I'm going to get the budget wrong 20, the 2022 budget. Because we thought that. The house was looking at. We thought that it was going to come out on September 1, 2021. So there were some options for the general assembly relative to funding. But I understood you now to be saying you thought you needed longer than September. I think given what we would project the timeline now to be this becomes a final sometime in May, unless it gets accelerated, that a four month timeline to both deploy and excuse me, develop and deploy training to that many people in so many ways. So we had to get it done. So I think we had to get it done. I mentioned again, it could be done in four months, but it will be a rush. Not a. I just, I always fear when we're rushing. Okay. Oh, I will say that arrived here on 323. That's read the first time committed the committee on judiciary. This is 331. So we've had it for eight days. We've had it for eight days. But several of those days were taken up with other things. So we're acting as quickly as we can. I can't. I don't know why the house took. Three months on it. And that's not, it shouldn't be taken as a complaint, Senator. No, no, I'm just, I'm just defending the Senate judiciary committee. Blaming the house judiciary committee. I must. I don't know. I don't know. We're getting into bad territory. No, I didn't call them any names. I just said that we didn't get the bill until the 23rd. And this is the 31st. So we've only had it. Seven days. I do have a question about that. That and other bills. If crossover was the 12th, why are we just getting bills? Because I'm not sure. I'm not sure. I mean, I'm not sure if crossovers when that leaves the committee, not one of the rides in the Senate. Okay. It took. By March 12th. And then it went to that long to. Two, three, two little votes. Okay. I guess they had to talk about a lot of other stuff over there. Okay. 150 of them if you remember. Maybe in redistricting. I'll check with the ACLU and see how they feel. When they're up for. I think the, the prior speaker did. You know, nothing I've ever agreed with her more. Like she said, there's too many of us. Julio Thompson is our next witness. Thank you commissioner. Thank you. Julio welcome. Happy new year. I don't think we've seen you. I don't think we've seen you yet. I don't think you have me there. I'm impressed with the, with your background. I must say artificial. Oh no. You ruined it. Well, I. Lawyers have a duty of a candor in front of public tribunals and hopefully everywhere. So. Following that general duty of candor. I'm looking at Senator Bennings. He's a lawyer. I have a bug crawling across the top of my iPad. That might that in the rules of ethics that might be deemed an overshare. Good morning. Assistant attorney general and director of the civil rights unit. I'm available for questions. We didn't. I have any statement prepared for the bill. This was a bill. I think that. It was a product of some efforts of clarification from, from public safety and others. So. I've testified a little bit on the bill. I can, I can offer some background about some of the topics that have been raised. For example. The issue of hindsight and, and also feasibility that were raised in prior testimony, if you wish, but otherwise. I'll just. Actually, I'd appreciate something on the benefit of ice. I'm sorry. Sure. So. Putting aside use of force for a second, there's been. And not just constitutional law, but other areas of law. There's been a doctrine of what's called hindsight bias. Which is a recognition that. Someone who's looking backwards, if they know the outcome. Of an event or a process, they make, make judgments that the process. The events leading up to the conclusion were obvious and predictable. It can happen, for example, outside of. Of constitutional law and as a well established doctrine and patent law, when patent examiners look at an invention. They have to decide whether to give a patent is whether a process. Or an invention was obvious or whether it was some. Revealed some ingenuity. And there's, there's an inherent bias that examiners have to protect against because they know the invention works. And so there's a bias for thinking well. To this, these steps are obvious because look at works. In constitutional law, but the doctrine really. Related originally to searches, and it was actually. In efforts to. To respond to defenses asserted by law enforcement. For example, you could have, let's say. A student resource officer, police officer assigned to a school. Who's just randomly searching backpacks. And he searches the backpack and that's the one that's challenged and inside the backpack is a gun or is, is, is drugs. But the facts are that at the time the officer conducted the search. You would evaluate the reason wellness of that officers actions based up on what he, what he knew not applying the hindsight that you know, looking back that there was a gun in the back. So that's really where that hindsight comes from originally before use of force. It had to do with searches. You would not take it to the outcome or the outcome. Of a challenge search of a car by the discovery of something, you know, that you learn about after the searches happen. Instead you return yourself to the scene, examine what the officer knew and evaluate the reasonableness of that. The fact that there was a gun or or drugs in the trunk should be irrelevant to the analysis. And use of forces applies the same standard because it's also evaluated under the fourth amendment. So you're, it's not a search. It's a senior in the fourth amendment covers both. So in 1989, the Supreme Court applied this, this doctrine for the first time in the context of force in a case called Graham versus Connor. Graham was a diabetic who was, had very low blood sugar and asked his friend to drive him to a convenience store to get him some orange juice. He ran into the store. There was a huge line of a slow moving and so panicking a little bit. He ran out of the store, got back in the car, said just drive to someone's house and get some orange juice there. And he was observed by some officers from Charlotte, North Carolina police officers running into a store and then suddenly running out and getting into a car that speeds off. So they follow him. The officer saying they thought maybe that was an indication of robbery at a time. So there's a traffic stop. And according to the evidence that was submitted, Graham's friend is telling him, look, he's a diabetic. He needs to get some, he needs to get some sugar in his system. And the officers are the same. We're going to find out what happened at the store. And in the meantime, there's, you know, some of the evidence that was used to restrain Connor. And then he filed suit or injury sustained by the stop. And the officers alleged in that case, well, and at the trial level were successful. They said, well, they were acting in good faith and they had to restrain him until they could find out what happened. And the Supreme Court says, well, we're not going to apply a good faith standard for use of force. Instead, we're going to look at the totality of the case. We're going to look at the totality of the case. We're going to look at the totality of the case. And the officers knew at the scene. And evaluate whether it was reasonable as an objective matter. So your good faith. Doesn't come into, doesn't come into play. That's the objective reasonableness standard. That's been with us in constitutional law for about 32 years. And then Graham. What the court said. Kind of the one of the key passages. The court's approach must be judged from the perspective of a reasonable officer on the scene. Rather than with the 2020 vision of hindsight. The calculator. So anyways, that's where that hindsight language. Comes from. This law basically for the use of force. Requires three things. One objective reasonableness. To that the force be necessary and three. That it be proportion. And one of the questions or some of the testimony in the house is. With respect to that first. Element objective reasonableness. Aren't we just articulating the Graham standard. Which has been around. And the Vermont Supreme Court applies it. In the context of the state's constitution as well. And the view was, yes, it's, it's kind of Graham plus two. And so I think the law enforcement. Witnesses that have testified before say. You know, we've trained that language from Graham forever. That it is. Circumstances on the scene without the benefit of hindsight. And, and it has to be reasonable in that context. Your good faith. Your intentions don't matter. Whether it's reasonable or not. So that's, that's a circumstance. Senator Bruce had. Had asked the question. Doesn't the statute and I guess I don't know if we could get the language up. That for the definition of objective reasonableness, but. Doesn't that already take it doesn't the language take it into account. And I would say, yes, it does. And maybe I don't know Brent's going to do that. Yeah, so it's be one, if we could scroll down to be one for a second. So here it's whether the decision by law enforcement officer to use force was objectively reasonable. Again, that's the language that's used in fourth amendment law. There's, there's over 10,000 cases. And it's, you know, on the books about what objective reasonableness means. So it's a well established standard. It's a term of art, but it shall be evaluated from the perspective of a reasonable officer in the same situation. Now, as I would read that an officer in the situation. Doesn't have the benefit of hindsight. Doesn't know what's in the trunk. Doesn't know whether the person that they're using force on has, you know, the person in this pocket or whatever, unless you know at the time the officer knew there. So I think it's already there. I think because this language about the perspective of the officer. In the same situation and because the Graham case in the same sentence says, in the same situation without the benefit of hindsight. I think the concern from the law enforcement. And one of the differences that I heard was that our, by leaving that language out, which is really well known. Without hindsight language. Will that create confusion in future cases. Where. Where someone might argue that. This isn't the grand standard that this isn't the, the, the constitutional standard, but it's some other standard. The first perspective is that it's strictly speaking, isn't necessary. But it's helpful in at least eliminating the doubt that the first of the three requirements objective reasonableness is the same standard that everybody's been using. What's new in the law or in the prior law is adding that necessary and proportion. That's where Vermont, at least when the original legislation was proposed, that's where Vermont was raising the standard for its law enforcement professionals. So objective reasonableness is kind of the constitutional minimum. So I viewed that the language of based on 2020 hindsight is just, you know, basically importing language that's already been well settled. It's not changing the constitutional standard. But if I think of the, you know, if, if this were being argued in court, I think our position would be. As written, you couldn't take into hindsight because officers on the scene don't have that, that hindsight that you do. They don't know the outcome. They don't know whether the person that they're struggling with might have, you know, some illness or something that leads them to have, you know, a cardiac arrest or something. We would know that afterwards, but the officer in the scene would not. I'll stop there if there are any questions about that. I think that does lead to a few questions. I think we've heard of Graham before. But it does lead me to a couple of questions. If an officer. Take a case from Bennington that's already been decided by the Vermont Supreme Court, where a man was, was searched. Who? Who took a cab to Bennington. Bennington PD did a search, found drugs. The man was convicted, sent to jail. Supreme Court overruled that based upon various factors. But if we put something in here, based upon hindsight, would that be, you know, because he came in a cab and he was a person of color? Does that make it okay to, to have done that search? If we make something explicit here, more explicit in terms of hindsight. Well, I guess what I'm saying, I worry about endangering what is already a standard by putting more in. Well, actually, I think the concern is that, I mean, like the language that's in the statute here, objectively reasonable. Yeah. That comes from Graham. The officer in the same circumstances comes from Graham. The, the concern that I heard in the house was that. The part about 2020 hindsight without the benefit of hindsight. That also comes from Graham and law enforcement was asking, what is the import of your leaving that out? Like, why wouldn't you, if, if Graham in one sentence says officer in the same situation without hindsight, and you say officer in the same situation, but you leave out the phrase about height hindsight that the court use. Does that mean that you're changing what objective reasonableness means under the standard? So we have, now we'll have two different standards. I think that was the concern. I'm going back to my case from Bennington that was thrown out by the Supreme Court. Well, I'm not familiar with that case, but I will tell you that Vermont Supreme Court and Senator Benning here is much more adept at talking about these issues than I am, but in both federal court and state court, when you're analyzing the reasonableness of the search, you don't apply hindsight, you evaluate it, it's the same standard. I mean, basically what Graham did was take the standard from searches and apply it to force. It's the same standard because fourth amendment says you'll have reasonable searches and seizures. Graham use of forces treated as a seizure of the person. I'd say, but it's the same amendment. And so the court said, we use the same standard. What are the circumstances known at the time of the act? Either a search or a seizure without the benefit of hindsight. Thank you. Yeah, Senator White. So Julio, are you saying that we actually should put without the benefit of hindsight in there because by adding, by having those two, two phrases from Graham. And specifically leaving out the third phrase. That it implies something different than the Graham standard. I think the point is that it, I think the concern is that it could create confusion. I do that. I don't think, I don't think adding it creates confusion. I think it could reduce possible confusion. But I think that. And I think the court. You know, And they're not writing statutes, although sometimes you think they are by the language. Because there's their standards are so detailed sometimes. But the court was, I think in that sentence really. Just emphasizing that when you say someone in the situation. That means we're not using hindsight. It's sort of belt and suspenders, but it follows a long standing line of cases that really have to do. With, you know, with searches and the kind of the pedigree of, of that doctrine really comes from. Not giving law enforcement a break if an, if an otherwise unreasonable search did, did produce the murder weapon, so to speak. I think that would be helpful. Yeah. That's helpful to me. Thank you. Any other. Yeah. And so in terms of the heightened standard for Vermont, like what is Vermont doing? That is like focusing things more on de-escalation. And kind of raising the standard. That really comes from the other parts of the law that talk about. That force not only has to be objectively reasonable. That's grand, but also necessary and proportion. That's the new stuff. And I don't think there was any concern about. The newer standard. I think the concern was that. Are we not applying the constitutional minimum? And I think, I think the intent was. That you are, but it's, so we've been calling it. Graham plus two. You have to meet the Graham standard. Plus demonstrate necessity and proportionality. So that's all I think. I have to say on that. The sir questions. Other questions for Julio. Will you have any other comments you'd like to make on this? Yeah, just, just to go back to the feasibility issue and just to briefly. Address that if you could pull up the language. I don't know if Bren is able to do that. Because I think there was some. What I heard this morning, I think there was a little bit of confusion about. What the role of the feasibility. Language is. It was in five. Be five. Yeah. Be five. Yeah. So really, I mean, what five does five on its face is unconditional. It's an unconditional duty. If you know something. You have to have two things that for, for five really to, to apply. One, you have to know the thing. One, you have to know the thing. You have to have this information. And then two, it says, if you have it. You have to take it into account. And making your forced determination. And on its face, it says, we would read that as without exception. So. When we read shallow phrases like that. From, you know, from the lawyer's perspectives in the AG's office. If you added another, if you added another, if you added another, if you added another, if you added another, if you added another, if you added another, if you added another, if you added another sentence here. That said the above duty shall apply, even if it is undisputed that it was not feasible for the officer to do so. My guess is that people would not agree to that language. Because I think people would say, well, we wouldn't want to impose a legal duty when it's not feasible to comply with the duty. And so that's really, I think that's another way of looking at the feasibility question. There are cases where they're different use of force. Encounters and some of them, the officer has plenty of time to make a decision. There's someone. Who's standing, you know, who's threatening people with an umbrella at a bus. A bus stop and the officer's pulling up and they've got distance. And they've got time to make evaluations. But there may be other use of force instances where the officer opens the door and it's shot in the chest. And the officer returns fire. And fleas and it turns out, luckily the officer had a vest. So they survived the encounter. When they were interviewed, they asked the officer. So what was going through your mind when you fired your gun and the officer says. Well, the only thing I thought of was, I think I'm shot. I better return fire and get out of here. And then in the interview, it turns out the officer knew the assailant, knew the person had a mental disability. But he's asked, did you think about anything else? No. Well, did you think about how his mental illness might play into your calculations? No, I felt. I thought I got shot. Every turn fire and get out of there. That's like an exaggerated application. Of the statute here, because the statute, I think, with the commissioner would think earlier, would say that that officer still violated the statute. Because even though it wasn't feasible, we could agree. It wasn't feasible for the officer to go through that mental calculus. The statute is unconditional and says, well, it says you shall take it into account. It's undisputed. You told us you didn't. And so you violated the statute. And so then does that subject the officer to discipline? Or if there's litigation about negligence, did the officer, is this evidence of negligence? Because the officer did not comply with the statutory duty. So I think that's where it comes up. It's not whether it's feasible to know something. It's whether and kind of time pressure decision making, which police officers encounter, but so do airplane pilots. Emergency room positions. So do many other professionals. It's sort of recognized that in, you know, time pressure decision making, you don't have the luxury. You know, time doesn't afford you to process everything that you know. And so, so I think that's what, I think that's what the concern was. And it seems to me that. If everyone agreed it was not feasible for an officer to make this calculus, then on its face, it would seem unfair for the statute to apply nonetheless. May I ask you a question about that? Sure. So how, what, what language would you put in there to, to change it? Well, I think you, you know, you had identified language earlier. And I think some of the other witnesses here, like I think Falco from ACLU also a tough divide about this. And I won't speak for him, but I, but I think the, you know, the language that you and I was like, you know, like that the officer shall whenever feasible. Take that. Oh, consider that information. Right. Yeah. Yeah. And it's, and it is true that you will have to, that will then there'll be some evaluation in a given case about whether it was feasible or not, but you will be doing that sort of intellectual exercise anyway. Under the grand standard, because you're going to be thinking about the totality of the circumstances, which might include that the officer had a quarter second to react. Or that their decision making process might have been impaired by the fact that they got struck in the head. With a two by four is, I think the, the commissioner had given the prior example. So I mean, you'll be doing that sort of evaluation in any of that. I don't think, I don't think it creates an additional burden. I think it just recognizes that. There may be instances where everyone agrees it's not feasible. Thank you. Thank you. Any other questions for Julio Julio, any other comments for us? No, I think that, I think that was, that was it. Thank you very much for joining us. We're going to take a. We're going to take a 10 minute break to 20 minutes of 11. And then pick up with. I'll go from the ACLU. I'm switching he and. Pepper because pepper no longer is with. Thanks. Okay. Thank you. Promoted. Promoted or whatever to the head of the cannabis control board. Thank you. Thank you. Thank you. Okay. Thank you. Thank you. Thank you.