 Our first witness after the break on S-254 is Lieutenant Diane Goldstein, Executive Director of the Law Enforcement Action Partnership. Thank you very much, Senator and members of the committee. My name's Diane Goldstein. I'm the Executive Director of the Law Enforcement Action Partnership, a nonprofit group of police prosecutors, judges, and other criminal justice professionals who speak from firsthand experience. Our mission is to make communities safer by focusing law enforcement resources on the greatest threats to public safety and addressing the root causes of crime. Thank you for the opportunity to testify in support of Senate Bill 254. I want to start by stating that the government, and in particular law enforcement's number one responsibility, is to protect the rights of its citizens. And though the state of Vermont has made great strides in enacting legislation that supports the professionalization of policing and promotes accountability, there remains a gap in the law that ensures justice and equity for victims of police conduct. This is not mutually exclusive. Let me be very clear and also very clear that qualified immunity reform is not about defending the police. In my over 20 years in law enforcement, I have learned that trust between police and the communities we serve is not just a preference. It is a requirement for public safety. Without these relationships, police are left to investigate crimes with little to no help from the community. Qualified immunity protects problematic police officers who cause harms to our communities by undermining our relationships, all the while squandering limited public safety resources. Police legitimacy demands that law enforcement comply with constitutional, statutory, and professional norms that the public expects of all its officers. The loss of police legitimacy damages the trust needed to solve crime and to keep our communities and our officers safe. Last year I joined other criminal justice professionals in sending a letter urging Congress to end qualified immunity. We oppose qualified immunity because it prevents legitimate cases from being heard, damages police community relations and public safety and is unnecessary for protecting police from unwarranted litigation in civil court. Qualified immunity can prevent legitimate civil lawsuits when an officer violates constitutional rights if the action has no clear legal precedent. There are no grounds for a lawsuit, but because the circumstances for cases differ, this clear legal precedent is extremely difficult to prove. Even in the best case scenario, the first officer sued under a particular set of circumstances will win no matter how egregious the violation. For example, in Jessup versus City of Fresno, police officers were alleged to have stolen more than $200,000 while serving a warrant. The Ninth Circuit dismissed the case not because it found that police hadn't stolen the money, but because there was no precedent clearly stating that officer stealing money was a violation of the Fourth Amendment. And I can assure you that every police officer knows that it's wrong to steal. No two situations will be exactly the same. So many important cases of civilian complaints are dismissed and with such cases are dismissed, the media firestorm has a devastating impact on public trust and in the justice system. In addition to being constitutionally dubious, this makes no ethical or logical sense. With this case for an isolated incident, the overall impact might be minimal, but it isn't. One study examining 1,460 police misconduct lawsuits between 2009 and 2012 found that 72% were tossed on qualified immunity grounds before even being heard by a judge. Communities fear and distrust police not because we make mistakes, but because there is the perception and at times the reality that we are rarely held legally accountable for them. At the same time, officers feel the weight of heightened scrutiny on top of regular police work. This is a recipe for disaster. Collaborative public safety efforts like all strong relationships are not possible without trust and communication. Without strong relationships, police are alone in our efforts to solve serious crimes. Meanwhile, a majority of violent crime goes unreported even by survivors. We cannot solve crimes we don't know about and cannot learn new information about a case from communities when they refuse to interact with us. A corrosive sentiment emerges any time one group of people is held to different standards. This becomes especially dangerous when the group offered immunity is a group that holds power in our society. To maintain a safe, democratic society, every day people must have the ability to hold public officials, including police accountable. Two-thirds of Americans say the civilians should have the power to sue police officers in order to hold them accountable for misconduct and excessive use of force, even if that makes policing more difficult. I am confident, however, that ending qualified immunity would actually make police work easier by strengthening our relationships and communities who see us as the enemy. Ending qualified immunity will not fix everything that must be addressed in policing, but it is the necessary step that will show communities we're listening to their concerns. The state of Vermont cannot fix a federal issue, but state legislators have proposed legislation that would protect the constitutional rights of the residents of Vermont through state court. The Vermont Civil Rights Act would go far to allow Vermont residents to pursue meaningful civil remedies for injuries as a result of police misconduct that has violated a citizen's constitutional right. We understand, though, firsthand why police are concerned about losing the qualified immunity defense, and we want to be clear that this concern is not warranted. Policing culture is slow to change and adapt. Last year I saw law enforcement oppose smart legislation, including here in Vermont, and across the country on critically important issues, including the use of force, duty to intervene, decertification, and transparency. Yet, once passed, those laws are now being embraced, and it is a needed step to improve the profession. That same fear, misunderstanding, and mischaracterizations of how the law works or how indemnification actually works at both the local state and the federal level, can be seen in opposition to this bill. I cannot emphasize enough that qualified immunity is not the officer's lone shield protecting us from a flood of frivolous lawsuits. Studies show that judges dismiss cases on qualified immunity grounds in less than four percent of civil rights cases involving law enforcement. When cases are without merit, judges dismiss them based on other tools and the rules of civil procedure. This four percent of unjustifiably dismissed lawsuits is not a concern for good and decent officers, but it provides highly visible evidence of the disastrous perception that officers are above the law. When a case does make it to court, qualified immunity is not the officer's only defense for actions that were reasonable or in good faith. Our real protection is in the Fourth Amendment itself, which is only violated by unreasonable searches or sieges or actions. Officers who act in a reasonable way, considering the heat at the moment, are protected by the standard without the need to resort to qualified immunity. Police officers who are acting lawfully and within the scope of authority do not need to fear the end of qualified immunity. In fact, the vast majority of good officers know that when the courts don't hold bad police officers accountable, whether it's through a discipline process or arbitration, prosecution, or the ability to be held responsible in the civil court, it impacts the professional police officer who holds themselves to high professional standards, commensurate with the responsibilities of our job. Finally, bypassing qualified immunity in Vermont will not bankrupt officers. When officers' actions lead to settlements or judgments against them, research again shows that 99.98% of the bills get paid by cities and municipalities. Government puts the bill, even when indemnifying the officer is against local law or policy, and even when the officer is terminated or convicted in criminal court for their conduct. Officers will not be bankrupted by settlements, judgments, or personal liability insurance. In short, ending qualified immunity will not bring open season upon law enforcement. It will simply allow judges to hear the facts of the most egregious cases, which are currently causing the public perception that the police are above the law. As law enforcement professionals, we support the Vermont Civil Rights Act because it will strengthen police relations with the communities that law enforcement in Vermont have sworn to serve. Thank you very much for the opportunity to share our perspective and support of this bill, and I'm open for any questions. Questions for Diane. Yes, Senator White. Thank you for your testimony. That was enlightening. And I just do want to clarify something that I thought I heard you say that in the past, officer, police officers, including in Vermont, have opposed such things as use of force legislation and the certification requirements that isn't quite, I just wanted to make sure that that is not misunderstood or that I misunderstood you. In Vermont, actually, what happened is that law enforcement worked with our committee to improve the use of force law, and they were the ones that actually brought us the decertification process, so they did not oppose it here. But from your comment, it sounded like you were lumping Vermont law enforcement into the opposition that came to those reforms. And I think it's the initial opposition to many of the bills that were said, and yes, I think Vermont law enforcement needs to be commended for the professionalization of the work that they've done on this. But what we've seen across the country is the initial reaction to any legislative changes in policing standards, bring up a lot of controversy and a lot of opposition initially. That doesn't mean that they're not worked on and that there's not consensus or compromise that occurs afterwards. So I apologize for that. Thank you. Let me just be clear on that, as I understand the process very well. Yes. In Vermont, actually, it was law enforcement that brought us the decertification issue. But they didn't work with us to make it better, they brought it to us. It's great. Just wanted to make sure that was understood by people. Thank you. Any other questions for. Diane. Diane, thanks so much for joining us this morning. Great. Thank you very much. Our next witness is Michael. I don't know which. Yeah, Michael Niels here. Michael Niels, the next witness. Correct. Why? Good morning. Thank you for joining us. Good morning, senators. For the record, I'm Michael Neil. I'm the executive director of the Vermont Troopers Association. There was just a question of whether or not the memo from the department of public safety was submitted to Peggy. And I did just forward that email. It's on the website. Okay. Thank you. Thank you for the opportunity to testify on this very important issue. As you know, I've already submitted a letter to you on behalf of not only our members, but all of Vermont law enforcement. This is the only time I remember. Vermont law enforcement leaders coming together to this extent to speak with a unified voice. We are very concerned for the future of our profession. And yes, we are opposed to this legislation. I would like to make a few comments rather than read the letter that I've submitted to the committee. I'm not going to speak in depth on policy or legal issues involved with eliminating qualified immunity for law enforcement. Those issues are addressed well. And it's a DPS position paper position statement on qualified immunity. I'll rely on the testimony of commissioner. And we'll do why who will be testifying later to address those issues. I'd like to address the timing of this legislation. Law enforcement agencies in Vermont are currently experiencing unprecedented challenges, recruiting and retaining qualified candidates and officers. The scope of this issue is beyond what we have ever experienced. We're in a staffing crisis, driven in part by a lack of public support for police officers. Law enforcement officers are beginning to feel abandoned and forgotten by many people who no longer acknowledge the risks and dedication that the men and women of our profession provide to every Vermont. We as law enforcement leaders are committed to ensuring law, law enforcement officers are held accountable for misconduct when acting under the color of law. We have worked collaboratively with the general assembly to pass act 56 and continue to develop systems to ensure accountability at all levels in every community. There is nothing in this bill to help invest in or improve our profession in any of these areas. The passage of this legislation would require our members to be protected with professional liability insurance. That question already came up earlier this morning. We do not believe this insurance should be treated any differently than the uniform, equipment, gun, badge, or police car that is issued to our members. Those are items required for every law enforcement officer to perform their duties, equipment that is provided to officers by their law enforcement agency. This isn't a cost our members and their families can absorb. The VTA is currently in contract negotiations. We intend to request a reopening clause be put in our contract in case this bill is passed. We would be forced to negotiate the cost of liability insurance with the state of Vermont and at the cost of the state of Vermont. Our employees are required to pay workers compensation insurance to make sure their officers are protected if injured on the job. They should do the same to protect us from civil liability when performing our duties reasonably. I appreciate the opportunity to speak this morning and hope you will consider these important concerns of Vermont's law enforcement officers. Thank you. Thank you. Are there any questions for Mr. O'Neill? Senator. Michael, thanks for coming. I'm intensely curious about this issue about liability insurance. And I don't know exactly how many people fall under the category of law enforcement officer. And I also don't know the cost of what such liability would be, but it seems prudent at this point to investigate the question. So we have some understanding of the financial impact. This bill might have. There's any way you can produce answers to those questions so that we have some idea of what we're looking at. I'd really like to avoid unintended consequences. I will see what information I get. I have received an email from a company out of Texas. That appears to be providing this type of insurance in Colorado. I haven't gotten costs on this yet. I've been reaching out to my counterparts around the country. To see if they have answers on this. And initially it appears it will be very expensive. And again, I believe this should be borne by the employer. You know, we do this job at great personal. And, you know, risk both physical and liability risks. And your employer should protect you in both situations. So I will see what answers I can get on that for you, Senator. Thank you. Ben. We couldn't, I think it would be fair if you could reach out to the. NCSL. Regarding any information about the experience in Colorado and North Carolina. New Mexico. On this, which I think have passed it. I'd also. So if you could get some information on that. And it's also its impact on the crew. I've, I've heard that just introducing the bill has. I believe that. But information on what their experience has been in North Carolina. I keep saying North Carolina. New Mexico in Colorado. Senator. Thank you. Senator White. I think, I think that. Senator Benning that there are about 17 or 1800. Law enforcement. Certified LEOs in the state. Or there should be. There are far less right now because of understaffing, but I think it's around that. Commissioner Sherling probably knows off the top of his head. There are 82 agencies. Any questions for our witness. Like. Thank you very much for being here and thank you for the. You're welcome. Thank you, Senator. Thank you. Our next witness is. Jay. Work it. Followed with the Kato Institute. Since I've just. Screwed up your name. May want to correct it for the record. Thank you very much, Senator. You're pretty close. My name is Jay Schweikert. And I'm an attorney and research fellow with the Kato Institute's project on criminal justice. The Kato launched a strategic campaign to eliminate the doctrine of qualified immunity. Four years ago, because we see this doctrine as the single biggest stumbling block to meaningful accountability. And the criminal justice system, especially for members of law enforcement. I think the most valuable use of my time here would be to address some of the most common misunderstandings about qualified immunity. A few of which have been repeated during testimony so far. I think we can discuss and respond to a few of the comments and questions that have come up in earlier testimony. So I think the most important thing to understand about qualified immunity. Is that it is not a good faith defense. It has nothing to do with whether government defendants were acting in good faith or whether they believed that they were acting law. As the Supreme Court has applied the doctrine, the only thing that we can discuss is whether the plaintiffs' rights were clearly established at the time of the violation. And that term clearly established generally means that there has to be a prior case with nearly identical facts before court will hold the defendant is not entitled to qualified immunity. Diane Goldstein already talked about the case just up versus city of Fresno, where police officers were alleged to have stolen over $200,000. Those officers received qualified immunity, not because they were acting in good faith. Nobody contended that they were, but simply because that exact fact pattern did not arisen in the Ninth Circuit. Another instructive case is a recent case out of the 10th Circuit called Frazier versus Evans. This case involved police officers who harassed, threatened to arrest and illegally searched a man simply for recording officers making an arrest in public. Now these officers had been explicitly instructed by their own department that citizens have a constitutional right to record the police in public. Similarly, courts around the country have recognized this right with no court holding otherwise. But they, even though these officers knew they were violating this man's constitutional rights, they still received qualified immunity, because the 10th Circuit, unlike six other circuit courts, had not yet addressed this exact question. So this doctrine is completely unnecessary to protect what you might call reasonable good faith mistakes of judgment in the public. It is obviously true that police have to make difficult calls under split second circumstances, under dangerous conditions where not all the facts are known. And it is indeed unfair to judge police with the benefit of 2020 hindsight when they make a reasonable mistake of judgment. But that's exactly why, as Diane Goldstein mentioned, the Fourth Amendment itself protects police officers in those circumstances. In other words, the mere fact that an officer makes the wrong call, such as using force that turns out to be unnecessary or arresting someone who turns out to be innocent, that in and of itself doesn't violate anyone's constitutional rights in the first place. So long as the officer had a reasonable belief to justify their actions. So qualified immunity doesn't kick in when an officer makes a reasonable mistake of judgment. It kicks in when they act objectively unreasonably. But under fact patterns that happen to be different from the fact patterns of prior cases. Probably the second most common misunderstanding about qualified immunity is that it somehow protects against frivolous lawsuits. We've heard that term come up several times so far. And whether or not frivolous civil rights suits are a problem, it's simply not something that has nothing to do with qualified. And this is true both for a conceptual reason and an empirical reason. And the lawsuit is frivolous. What we mean is that it's either legally unsubstantiated or that it's factually unsubstantiated. And in neither case does qualified immunity do anything to weed out those claims. When lawsuits are genuinely non-maritorious, there are other tools of civil procedure like the motion to dismiss standard or the summary judgment standard that can filter out those lawsuits. And indeed those tools very frequently do filter out non-maritorious lawsuits. But qualified immunity only matters. It only makes the difference in that zone where someone's rights were violated. But a court holds that those rights were not clearly established. So by definition the doctrine only matters in meritorious cases. So it simply has nothing to do with the non-maritorious ones. And Joanna Schwartz, who is the leading empirical scholar of qualified immunity in this country, has demonstrated this point very clearly in a detailed study she did a few years ago where she looked at all of the section 1983 cases brought against law enforcement officers in a sample of five federal judicial districts. And what she found was that qualified immunity resulted in only a miniscule number of dismissals of cases prior to discovered. In other words, this would be the stage where you would want to filter out non-maritorious lawsuits. Only 0.6% of those cases were dismissed prior to discovery based on qualified immunity. In other words, the doctrine is not actually performing its intended function of weeding out non-maritorious cases. So I want to turn now to a few of the previous exchanges that have come up so far. First, earlier, Senator Benning asked about whether qualified immunity reform was simply a matter of who pays rather than whether a victim is compensated. And to clarify this question, qualified immunity often does result in a victim whose rights were violated, receiving no compensation whatsoever. So it's true, of course, that police officers are nearly always indemnified. In other words, that the person who actually pays is not the officer themselves, but their employer. But an employer's obligation to pay is only going to be triggered when there is underlying liability in the first place. In other words, a department doesn't have to compensate a victim unless there is liability on behalf of the person who harmed the victim. And because of qualified immunity, courts will often say, yes, your rights were violated, but the law wasn't clearly established so you can't recover against this defendant, in which case their employer doesn't have to compensate the victim. So it absolutely is a matter of ensuring that victims are compensated, not simply a question of who pays the judgment. Next, Commissioner O'Neill, excuse me, Michael O'Neill and Commissioner Shirling both discussed the idea that this is the wrong time for QI reform because of staffing shortages and the sense that officers are feeling disrespected and not appreciated by their community. I think that analysis gets things exactly backwards. I certainly have a lot of sympathy for members of law enforcement who feel that they are being tainted with unfair stereotypes that people see relatively rare but high-profile examples of police misconduct and that this taints their perception of the law enforcement community as a whole. And I'm very sympathetic to that concern, but the antidote to that problem is to hold accountable the officers who do commit those egregious violations, which today are often excused because of qualified immunity. In other words, the path towards restoring public confidence in the police to making the job of policing more effective and more enjoyable and rewarding is to hold unprofessional officers accountable because that is what will give professional officers the credibility to say those people don't represent us, because we are the representative of our community, the vast majority of us strive to do our jobs professionally. Officers today cannot say that credibly because of qualified immunity. Additionally, Commissioner Scherling discussed how lawsuits are the wrong way to address this because it addresses the problem after an error occurs rather than before, and that we need to focus on front-end accountability. And I certainly agree that front-end accountability is important, because liability for victims of misconduct is an absolutely essential part of giving law enforcement agencies the right incentives to ensure front-end accountability. In other words, when law enforcement agencies know that they will be either entirely or primarily on the hook financially if their officers commit misconduct and that qualified immunity won't be a defense, that is exactly what gives them the incentives to enact the right sort of hiring, training, and disciplinary policies to ensure that those violations don't occur in the first place. In other words, qualified immunity reform isn't simply about ensuring compensation for victims. It's also about creating the right incentives both for individual officers and their employers to stop those violations from happening in the first place. So, let me see. And Commissioner Scherling also mentioned that we don't do things like this in healthcare education. Well, of course we do. Of course we allow malpractice suits against healthcare professionals who hurt people irresponsibly and unreasonably. And it would be perverse to suggest that the right way of approaching medical malpractice is to say that if you commit medical malpractice, you can't be held liable unless you have committed someone else has already committed the exact sort of malpractice that you committed. That is effectively what qualified immunity is today. So the argument that police somehow need qualified immunity to do their jobs is essentially an argument that police ought to be held to a lower standard of accountability than nearly any other profession in this country. So I absolutely see qualified immunity reform as an argument that will strengthen the policing community. The idea that this is a backhanded way of defunding the police is absurd and untrue. This is about strengthening police, restoring public confidence in law enforcement, and ensuring that police can do their jobs safely and effectively. And that is one of the core reasons why qualified immunity reform is so desperate. Thank you. And I look forward to any questions. Actually, I have a couple of questions today and thank you for joining us this morning. What you're basically saying if I could paraphrase this, there may be an misunderstanding about what qualified immunity does and doesn't do. If I look at the Fresno case everybody I think would agree that police officers shouldn't steal from local businesses. I don't know of anyone who would say, well, you know, they should be able to. And yet the police officers weren't able to be held accountable because of qualified immunity. But from the testimony that I've heard qualified immunity is the only thing that protects police officers from privilege lawsuits, etc. I mean, is that misunderstanding in general of what the benefits or negatives are of qualified immunity? Yes, it's absolutely a misunderstanding. Because as I was saying earlier, qualified immunity only matters. It only makes a difference in those cases where someone's rights were violated. In other words, if police took some action that didn't violate anyone's rights at all, by definition they don't need qualified immunity to protect them. Because they're simply the point of hasn't met the elements of their cause of action in the first place. So it only matters in meritorious cases. And so this idea this concern about frivolous lawsuits really just I think frankly rest on a misunderstanding about civil procedure and the fact that, you know, today there's nothing there's no magic shield that stops anyone from filing frivolous lawsuits. And that sometimes may be a problem. I mean it is true that there are lots of frivolous lawsuits, especially in the corrections context. And that's why there are both federal and state laws that limit the ability of prisoners to bring successive non meritorious claims. If it happened to be the case there were similar problems in suits against law enforcement. Certainly the legislature could consider similar actions. But qualified immunity is just completely unrelated to that. Thank you. By the way, the Kato Institute is not a liberal think tank. That is certainly true. I've been accused of caving to the left wing. I just want to point that out. Thank you. Senator White. Thank you, Jay. So when I've done a whole ton of research and I listened actually to your comments, you put out a little video. So when I looked at the 1967 Supreme Court decision, it seemed to me that what they were saying was that you have some immunity, but it's qualified by the fact that you're operating within your scope of practice and legally. That's what qualified means. If you're acting outside of legal authority or outside of your scope of practice and you are not covered by this qualified immunity. And I might be wrong there, but that's why it's qualified instead of absolute immunity. And then when I read further on and maybe I'm wrong here, but it seems to me that the 1982 Supreme Court did us a huge disservice by establishing this clearly established and so it's a construct of the courts that has put us in this position of the clearly established and undebatable whatever the terms are, the standard that you need to meet. And so do I understand that right? I mean I'm not that it makes any difference, but I'm blaming the 1982 Supreme Court. I think that's mostly right. I mean to clarify, we often talk about qualified immunity being invented in 1967 in the case Pearson versus Ray. But it looked very different than it does today. Because that case involved police officers who were enforcing an unconstitutional statute. And they claim, well, we didn't know this statute was unconstitutional. We shouldn't be personally liable. And the court said, okay, that's reasonable. So as long as you can show you had a good faith basis for believing this was lawful, you can't be held personally liable. So it was a much more, it wasn't so much whether they were acting within the scope of their duties, but it was an actual good faith requirement. But you were right that that completely changed in 1982 in the case Harlow versus Fitzgerald, which set out the clearly established law standard, which is what governs today. And that's the standard under which their state of mind has no relevance, even if they intended to violate someone's rights. As we saw in the Jessup case or in the Frazier versus Evans case, that doesn't matter. The only thing that matters is the fact patterns of prior judicial decisions in that district. So that is the way that qualified immunity exists today. And it's also the way that state courts and state law have generally incorporated the doctrine. So whether or not that original version, the actual good faith would be a good idea. It's just not the face of the doctrine today. Stupid 1982 Supreme Court. I don't even know who is on there, but thanks. A lot of justice in center. Jay, good morning. I want to say conceptually, I have some sympathy for this bill. I am still not feeling comfortable about unintended consequences. I read your the Cato Institute position paper. I also watched the video. I have heard you here say that there have been situations in which someone was denied the ability to get a remedy through a law enforcement agency and then had no remedy or recourse against the individual officer. As a lawyer, I kind of hear that and I think to myself, well, if they couldn't get it through the agency, there must have been a reason why the decision was made that that was not a path for them. And I get nervous when you take away the precedent that they have been blocked at door A and now we want to provide door B. And my nervousness here stems from not having enough information about what's the potential unintended consequences. You made the remark about medical malpractice. Medical malpractice insurance is very expensive. My daughter is a first responder as a paramedic on an ambulance squad. She does not carry medical malpractice insurance. And these officers, for the most part, Jeanette said 1700, but quite frankly, we're in need of a lot more given all of the problems we have in this state recruiting right now. But the bottom line is every one of those officers is probably grossly underpaid. Are you aware of any insurance policies out there and what the costs of them may be for these folks to be able to protect themselves in this kind of a situation? Thank you, Senator. No, I'm not familiar with the existing state of insurance policies that would be available to Vermont law enforcement officers. I certainly am sympathetic to the concern that, you know, there's a cost there and I don't wouldn't say that that's something that they should have to simply you know, bear individually. It is already the case that law enforcement spend quite a bit of money indemnifying officers in suits brought against them, whether in settlements or less frequently injured. So I think that that money could be much better spent repurposed toward providing individual insurance policies that will actually cover these suits as well as I think better aligning officer incentives. So I think to address something you said previously though about bringing suits against the departments, I think there's there are two ways I think that can happen. I mean, in a formal sense, sometimes you can sue a police department, you can bring a suit against a police department under section 1983, the Federal Civil Rights Statute, but it's very difficult to hold a department liable directly because there is no responding at superior liability under section 1983. In other words, it's not enough to show that an employee of the department caused a violation. You also have to show that it was an explicit policy or practice of the department that led to that violation. And the courts have interpreted that quite narrowly in a way that makes it very difficult to directly sue law enforcement agencies. You also sometimes have a case where the suit only goes forward against an individual officer and the judgment is only against the officer, but it's the agency that ends up indemnifying because as we know, police officers are nearly always indemnified. So that's the circumstance where it's not a suit against the agency. It's the agency deciding basically usually as a matter of contract law that they have to indemnify the officer. But that only matters if the officer themselves can be held liable, so what we think is the better model is the sort of assumption that if a victim's rights have been violated they get a complete remit. The department is the one that has deep pockets and the one to set incentives for their individual officers, so the department should be on the hook financially. But there should also be skin in the game for the individual officer to ensure that their incentives are also aligned. So that's why we think an approach where there's some measure of shared liability between police departments and individual officers is the one that both fully compensates victims and creates the right incentives at the department level and at the officer level. Thank you. Are you aware of any cases in Vermont where an individual has been deprived of a remedy completely as a result of a suit brought against an agency and the officer in question. I will assume that if they bring it against the officer it's automatically thrown out because of qualifying but are you aware of any situations in Vermont where somebody has actually been denied a remedy altogether in the event that they were attempting to suit both the agency and the officer. Well I believe I would have to check to be sure but I believe that the Vermont specific qualified immunity case is that J.D. has talked about in his opening comments for cases where the victim was denied a remedy. I don't believe that those were cases where they were able to bring a separate suit against the agency. I could check on that to confirm with certainty but generally speaking it's very difficult to get a remedy from the agency so I think those were cases where the victim was denied relief entirely. I think it's important to clarify because I asked J.D. that question and I got the answer that I took to mean the plaintiffs were in fact given a remedy they just weren't able to get as much perhaps from two separate sources because of qualified immunity. I don't think that's correct and again I can check on those cases to be sure and follow up with you but my understanding of those cases is that their claim was dismissed on the basis of qualified immunity therefore they could not recover at all. I'd like to see the clarification if you could. Absolutely. I can look into that for you. Thank you. Thank you. Any other questions for J? J, thank you very much for taking the time to join us this morning. Thank you for having me. Any other thoughts would be appreciated. I'm going to call on Mike Shirley who has a comment he'd like to make. Commissioner Shirley, I'm sorry. That is quite alright Senator. I appreciate you inviting me for just a moment. I normally wouldn't ask to speak again but since a portion of my testimony was just referred to as absurd by the prior witness I felt it necessary to simply reiterate that I do not believe it is absurd to say that increasing litigation and liability is going to somehow strengthen law enforcement operations or government operations of any kind. I just I appreciate the ability to weigh back in on that. Appreciate it. The next witness is Karen Horn from the Mont League of Citizens. I think she's joined by Trevor Whipple but I'll let Karen figure out how to handle that on Zoom. Normally I would have you both bring up a chair in front of the committee but Well, we are in chairs so That's good. I'm glad you're in chairs. Yes So anyway you are representing the Vermont League of Citizens Towns and I assume that Trevor is a member of the VLCD board. Yes, so my name is Karen Horn and I represent the Vermont League of Citizens Towns as you said and Trevor Whipple is the retired South Burlington police chief. He's also now our VLCD law enforcement risk management consultant and he serves on the criminal justice council. He's currently chair of its professional regulations subcommittee so our thinking was that if you had questions about the many statutes that you've passed in the last couple of years are unfolding and what's being done around accountability transparency and all of those issues that he would be able to answer questions. So I would like to just run through my own testimony for a moment if I could and then if you have questions for myself or for Trevor we'd be happy to take them. Okay, go right ahead. Okay, thank you. We do join 12 organizations opposing S-254 as it's introduced. In August 2020 the Vermont League of Citizens Towns Board of Directors offered its perspective on police reform which I'm going to send to you in my testimony when we're finished here. The perspective calls for both holding police officers accountable and preserving qualified immunity. We don't believe the goals are exclusive of each other. Local officials around the state embrace actions to increase accountability among law enforcement officers and to improve access to justice for all. All public officials, you've heard this already this morning, but all public officials from plow drivers to school and select board members, listers, teachers, health officers, police officers and firefighters rely on qualified immunity to protect them from individual liability unless they violated a clearly established constitutional right. Qualified immunity according to the Supreme Court, U.S. law enforcement officers are not available to all government officials except those who are quote, except those who are playling incompetent or knowingly violate the law. In 2017, I want to remind the committee that Act 56 was enacted. It established new provisions for professional regulation of law enforcement officers. More recently in 2020, you passed Act 165 that establishes a use of force standard and Act 166 which addresses the collection of roadside stop data, use of body cameras, it substantially restructured and expanded the criminal justice council and it requires law enforcement agencies to report credible complaints of professional misconduct to the council. And then in 2021, you passed Act 27 which revisited the use of force standard. It established an officer's duty to intervene. It established new statewide training requirements. These are all now the law that we believe is referenced above with respect to the Supreme Court. In the last two years, even as the COVID pandemic struck an already difficult recruitment and retention problems have been significantly exacerbated. Police departments, the restructured criminal justice council and the newly appointed executive director of the police academy have worked to implement those many and good legislative directives. The effort to create a private right of action and eliminate qualified immunity protection for law enforcement officers, we believe will serve to exacerbate the difficulty police departments have today in filling vacancies, in retaining officers, and in providing law enforcement services statewide. We believe the bill will also compromise earlier legislative action to enact police reform with a focus on accountability. According to the Department of Public Safety, which I believe is in the statement that Commissioner Shirling presented that's on your website now. This includes that every law enforcement agency has recently adopted a new statewide use of force policy. Just to give a couple of examples here, we've recently heard of at least one small town that has been considering the creation of a new police department for the first time because there's no available coverage from state police from the sheriff's office or nearby communities. At the current time, that option is also infeasible for that town because the new department will face the same staffing challenges that make it impossible for the state police sheriffs or nearby communities to offer coverage. I also wanted to note that in the past, the legislatures considered mandates to require every town to provide law enforcement coverage. Section 2 of Act 166 that you passed requires every regional planning commission to inventory public safety resources of each town with an jurisdiction and report the inventory to all its towns by December 31, 2021 last month in order for towns to better understand the public safety resources available to them and how those resources may be shared and sharing with the public. I also wanted to mention that it is very difficult right now given our lack of officers. And then H689 which is a newly introduced bill on the house side would prohibit a town from receiving state aid for town highways for bridges or structures unless it's filed a plan for local enforcement of traffic laws that prohibiting idling. I think that all of this indicates that there is the need the strong need for law enforcement presence in Vermont and that we don't want to end up in a situation where we're further jeopardizing that through adoption of something like the language that suggested in S-254 and that we would much prefer and urge the committee to focus on the implementation of the legislation that you've passed in the last several years that addresses all these issues quite directly. I don't know if Trevor wants to offer anything particular at this time or just be available for questions. Thank you. It really is the will of the committee, Senator Sears, if you wish to hear, I certainly have comments. I guess while there have been several comments that I realize the Commissioner of Public Safety was upset about comments made and I think we can all understand but I'm curious if the proponents of S-254 are all completely wrong and that qualified immunity is actually really settled on and goes in the right direction. I'm beginning to wonder if there isn't misunderstanding about what it does and what it doesn't do. When I read cases like Fresno where police actually stole jewelry from a store or stole items from someone I mean obviously no one and I know Trevor Whippo and I don't even believe anyone would say wow that's good police action deserves to be thrown out of court because it qualified immunity and it shouldn't apply there but yet it did and that was a U.S. Supreme Court. Now I look at some of the examples that Mr. Diaz brought up Kent versus Katz where there was an aggressive risk lock and I'm wondering do we really intend qualified immunity to have a very similar case when I'm looking at qualified immunity and I honestly I'm beginning to wonder if it's applied correctly if the courts haven't messed this up and it doesn't need some further improvement rather than just throwing out the baby with bath water and as I look at I wonder what the experience is I can't imagine the South Burlington Police Department already discovered that somebody was stealing from one of your local stores back when you were the chief and you said oh well qualified immunity protects that because it was Supreme Court case it seems absurd. I think I would agree Senator for the record Trevor Whippo I'm currently with Ramon League of Cities and Towns and I think I know everybody in the committee but I was a serving police officer for 36 years 7.5 as chief in the city of Berry and 12 as the chief in the city of South Burlington and I now have an even better perspective being appointed to the criminal justice council and recently the first of the year in 2022 asked by chair Surrell to serve as the chair of the professional regulation subcommittee so what I would say to that senator is that clearly police officers accountable and I think you know what I appreciate here in Vermont is that and I appreciate senator whites comments earlier about how the police organizations came forward the general assembly supported and move forward accountability for police officers through professional regulation through licensing per say through the criminal justice council and if senator as you say if my police officers in the city of South Burlington had stolen money from police officers anymore and currently there are dual tracks for that there's the employment track whereas a police chief I could deal with internal discipline which in that case would most likely end in termination but also could refer them to the criminal justice council under an act 56 violation for action against their certification and I see we talk about meaningful accountability for police officers and trust me as a cop for 36 years for almost 20 I was sued and you know getting sued and and potentially having a judgment and there never was a judgment against me but the worst settlements you know that doesn't necessarily alter police behavior doesn't necessarily extricate a bad police officer from our ranks it would really be up to the employer to decide are they going to continue to maintain that officer in their employee after judgment or settlement what the general assembly has put the law through act 56 is a mechanism to directly go towards meaningful police accountability and that is if you've got an officer that steals money or perpetrates some other heinous action as long as it falls under the guidelines of act 56 reporting and that is excessive use of force that is criminal behavior while on duty then that can be forwarded to my now committee we can then review that forwarded to the criminal justice council and we can pull the officers certification they can be suspended they can be decertified and that's much more I think much more personal certainly much more expeditious than litigation and I think that that mechanism is already well in play here in Vermont and for those sorry center my point wasn't that my point is if that officer is protected by qualified immunity from the store or whatever place he stole the money from or she did and they're sued civilly should qualified immunity protect them from behavior that we obviously everyone would agree isn't more I think clearly that's that's certainly something to investigate you know from my point of view I'm not an attorney and I don't know the intricacies of qualified immunity but I think part of what's happened here is the courts have made the rulings over the years and established what it is and what it isn't and I thought that the more I hear about it the more testimony we've taken this morning I believe that it's the application because no legislature is actually active on this other than Colorado and Mexico was through qualified immunity maybe there is a place for qualified immunity but should it protect officers from civil suits when we know exactly what they did everybody would agree was wrong and that's the point that the individual who's harmed getting made whole to use the term that JD has used. I'm just trying to say here that my understanding of qualified immunity versus what I'm hearing is totally different and I've been sued. I know it's unpleasant and I didn't have qualified immunity the job that I had so when I got sued it cost me over $20,000 to defend myself I'm very proud the jury was out for five minutes and I probably took two and a half to walk two and back so it wasn't a long deliberation but if I may I think that Senator White's earlier statement regarding the 1982 Supreme Court decision versus the earlier interpretation maybe instructive here and there might be something to discuss there we're not opposed to having a conversation about what would be the best remedy but we are opposed to throwing it out all together thank you Senator White sorry I just have a couple questions Karen in your capacity as working for the Vermont city league of cities and towns you deal with municipal employees and are there are singling out police officers here because of their authority but would the league I assume take the same position if we were to just eliminate qualified immunity for all public officials well we certainly would take that same position and in fact in the past I've been here a very long time but in the past there has been a lot of legislation that would eliminate qualified immunity for cloud drivers and we opposed eliminating the protection in that instance as well thank you may I ask Trevor a question I think you might be able to answer this in the bill it identifies law enforcement agencies and law enforcement agencies have a particular responsibility here and that law enforcement officers they're separate so I don't remember how law enforcement agency is identified but a law enforcement officer is someone an investigator who is employed by the secretary of state or the board of medical practice and yet those the secretary of state and the medical practice board are not law enforcement agencies themselves so how would how would their following up a little bit on Senator Benning's questions around insurance and who's responsible they would not have an agency to fall back on is that the way I read this you know and if you're asking me Senator I struggle with that as well as we look at you know who they actually are directly accountable to and I am uncertain when we look at those particularly the two that you have mentioned who they're their home bases so to speak because I think they are employed by the secretary of state and by the board of medical practice they aren't it isn't like the attorney general's office where they're all employed by a law enforcement agency and then loaned out correct or department of liquor lottery or motor vehicles they all have a home agency clearly right so that is a conundrum thank you any further questions okay thank you thank you both very much very helpful thank you our next witness is Wilder White I I usually would introduce her as part of that freedom but now you have a new role with the department of safety so welcome thank you Senator Sears and other senators on the committee my name is Wilder White and I am still the founder of that freedom which is a civil rights and advocacy organization that's dedicated to ending the discrimination against people based on their perceived mental illness I psychiatric survivors are actually the population that's most likely to be killed by law enforcement officers and in fact if you look back over the last 20 years in Vermont those who have been killed by law enforcement officers have been 8 to 10 people have been people who were in mental distress so improving interactions between law enforcement and the public is something I'm very passionate about I was also the inaugural chair of Vermont's mental health crisis response commission which this legislature created to review and improve interactions between people who were believed to be in a mental health crisis at the time they were killed or harmed I'm also a former trial lawyer and where I did review civil rights actions against law enforcement officers correctional officers and others and I ran the Center for Social Justice at the University of California Berkeley School of Law where we trained law students to pursue careers and the public interest and also did research on some of the nation's most pressing racial justice issues I was also very actively involved in the most recent use of force legislation offering amendments to that legislation I was also involved in the policy, the statewide policy use of force that was adopted statewide by every law enforcement agency in the state and after that policy was adopted the Department of Public Safety reached out to me to ask me if I would become party of the training team to train law enforcement officers administrators and supervisors about both the use of force policy and the use of force law and I take the time to go through all of that because I want you to be clear that the perspective I bring to this my testimony today encompasses my whole life experience with law enforcement my both professionally personally and here in Vermont and it's and I come here today you know as representing the position of the Department of Safety because of my most recent experience working with the Department of Public Safety and rolling out this use of force policy from what I observed in those trainings and working with people in the Department of Public Safety I have to say that their embrace the use of force law and policy was a surprise to me actually they fully embraced not just the letter of the law but also its spirit they they trained law enforcement officers that they were shifting from a mindset of what is justified to how can we resolve this with as little harm as possible and I was a full member of that training team and did a lot of the training around interactions with people experiencing mental distress and that training was put on and partnered with by the Vermont Police Academy in partnership with the Department of Public Safety in the Vermont League of Cities and Towns before I get into the specific reasons why the Department of Public Safety is opposed to this legislation I just also want to say that all the views I expressed here are the things I believe in and are true for me and also I want to talk about this issue of this bill is a racial justice bill I want to just at the outset say to the extent that people believe that this is a racial justice bill I would have to say that you are either naive or self-serving or perhaps you might think that this is a racial justice issue but this is certainly not a racial justice solution black people psychiatric survivors have no access to the courts and it's not just qualified immunity that's keeping these two groups of people outside the courts we have a very difficult time finding attorneys we can't afford attorneys attorneys don't understand their laws our lives black people are systematically excluded from juries and we fare no better in civil court than we do in criminal court so the idea that if you eliminate qualified immunity you're going to open the doors to people who have been suffering constitutional violations at the hands of police is just a false promise that is just not going to happen we do not have the access to justice that you the proponents of this bill I think believe that black people and psychiatric survivors have and juries and lawyers pay even less attention to people who have a history of psychiatric illness in fact you go to continuing education trainings for litigators and one of the things you will always hear is not to take cases with people with psychiatric histories and they say it freely without any qualms about the discrimination that underlines those views so I just want to say at the top this is not a racial justice solution to any problems between law enforcement and psychiatric survivors and the black community or the black and brown community the other thing I think it's important to to say at the outset is that you are Vermont policy makers and I think you should be making laws based on what's happening in Vermont much of the testimony from many of the witnesses have talked about things that are happening outside of Vermont you know the Fresno cases or the Ninth Circuit or the 10th Circuit those courts decisions have no bearing on what's happening in the state of Vermont and when I reviewed what's happening with qualified immunity in the state of Vermont I don't see those egregious cases that make all of us mad and make us think that we need to fix qualified immunity rather what I see in Vermont are judgments being paid or settlements being entered into according to the ACLU's own statistics Vermont municipalities and agencies paid out over half a million dollars between 2004 and 2014 for ledge tasern issues we also read judgments like $500,000 to Wayne Burrell against the Hartford of the police department I know Wayne Brunette who was a psychiatric survivor the city of Burlington paid out a settlement of $270,000 and most recently Wayne Brunette who died after being punched in the face by a Burlington police officer I'll say allegedly because that case wasn't litigated that also reached the settlement and so and then when I look at the most recent cases from the Second Circuit which is the federal appeals court that applies to Vermont I see that in 8 out of the 10 most recent cases where qualified immunity was raised as a fence the court disallowed it so qualified immunity Senator Benning you said before you mentioned that you think qualified immunity cases are automatically thrown out they're not automatically thrown out there is a test that is applied by a judge and so it involves subjectivity and in Vermont either our Supreme Court or our Second Circuit has not applied qualified immunity as it's being applied outside the state and by other circuit courts the next thing I want to say about this bill is that there's been some comments that you know getting rid of qualified immunity would restore people's faith in our judicial system or in our law enforcement because we could sue them personally I don't believe that having the opportunity the quote the right to sue somebody restore his faith in our police for me it tells me that this legislature is giving up in fact and is saying hey you know we're going to consider harm cause the cost of doing business that we can manage through insurance I think efforts are better spent on prevention I certainly don't want my legacy to be a wrongful death suit I would rather have my safety and life preserved and I believe that Commissioner Sherling spoke about accountability measures that would address preventing these harms before they occur rather than simply treating them the same way as car accidents and business disputes in a court of law by those who are able to access our civil justice system I want to speak a little bit about the bill itself just based on comments that were made here because I think there's some things that are really important to think about Senator Bitting asked about the cost of this bill or the financial implications of the bill and he spoke to looking at the experience of Colorado as some indication about how that those costs would be born here in Vermont I think it's important to point out that this bill while it may be based on the Colorado bill it does not mirror the Colorado bill and in fact it is much more expansive and broad and so whatever happens in Colorado in terms of cost would not be true in Vermont because Vermont has expanded the basis that you can sue police officers in Colorado it's only based on their constitution under this statute it's based on both the Vermont Constitution Vermont Statutes and Vermont common law common law is law that's not written in the books it's created by the courts it's anything from a car accident fraud deceit misrepresentation defamation slander all of those things would now be fair game against law enforcement officers under this bill the second thing is the Colorado bill actually their indemnification provision is not as broad as the indemnification provision that's in this bill in Colorado agencies do not have to pay a judgment if the law enforcement officer was convicted of a crime under this bill the agency would have to pay a judgment if the law enforcement officer were convicted of a crime and they would pay that total judgment if the law officers was unable to pay their maximum penalty of $25,000 now what's important to realize here that once a person has been convicted of a crime that is an intentional tort insurance does not cover intentional torts every insurance policy has an exclusion for intentional torts who is left holding the bag when an law enforcement officer who has been convicted of a crime is also sued and a judgment is rendered against them it will come from the public coffers not from insurance which could conceivably bankrupt some small towns and municipalities the other thing that would be a cost of this bill is the impact on our court system because currently what happens when people sue for violations of civil rights they usually file the case and state court but it's removed to the federal court under federal procedure and so the cases litigated in federal courts relieving that burden from our own state courts now under this bill all these cases will be both brought in state court and litigated in state courts which increases actually the cost of managing these courts and our courts are already backlogs cases are already not getting out to trial so here's another cost that needs to be factored in when you start thinking about the financial impact of this bill I also want to mention that even and I'm going back a little bit here because I'm trying to do this off the cuff actually without having prepared remarks because I want to be responsive to what was heard here but I also want to say in terms of the cases that were Vermont cases that JDS mentioned those are relatively old cases Katz is a 2005 case Keane was a 2009 case and the jurisprudence in this circuit in this state has changed considerably since those cases were decided I want to stop there and ask if there are any questions because I know that we are running out of time which I don't want to do I do have some other points I would like to make okay seeing no questions then I'll continue I also think this is the wrong bill at the wrong time because I do believe and the legislation that this body has passed in the past we need to give it time to bear fruit I have seen changes on the use of force the law already in how policing is conducted in this state and I think we need to give the chance for those those some of which I think is transformative when I think about survivors we need to give a chance for that to work one of the things that I was really struck by in my work with law enforcement officers over the summer is how earnest and how committed to their profession that they are so many had so many ideas about improving their professions and improving their own conduct things like I think tasers should be designed in a different way because they were afraid of actually shooting a taser tasers shouldn't have a trigger they should have a button others came up to me and said they were envious how law enforcement officers get trained outside the United States because they have so much more training and they wish they could have so much more training others said they want de-escalation tactics and they want to master de-escalation taxes in the academy before they're ever taught how to use deadly force and I was so proud to me to say can you help us come up with a checklist about how we can more safely handle things like welfare checks so that people don't get killed I found our law enforcement officers that I met and I attended every single training and 83% of certified officers attended those trainings I found them to be just as engaged with wanting to improve law enforcement and wanting to make things on their job and I fear that this bill would be so demoralizing and so not really recognizing how invested they are and doing better and how much they want to act as a partner with our community and that brings me to the last point about why I feel that this bill is so problematic and that is that I really do feel like it others police officers it drives a wedge between law enforcement and the rest of us and as somebody who's black queer gender nonconforming a psychiatric survivor I empathize with people who are other it is bad for our mental health it puts us on the margins of society it makes us resentful it makes us not want to do the right thing it makes us feel like no matter what we do we can't win I do believe that law enforcement improving law enforcement requires all of us working together and not at odds with each other and I feel that this bill gives up in abandoned efforts to improve law enforcement by just reducing it to a matter of dollars to really no one's benefit and to all of us I feel like we lose by othering our law enforcement and not getting more citizens involved both in prevention and in accountability through something like Act 56 I'll end there in the interest of time and I'm happy to answer questions thank you Wilda we have run out of time this morning we'll take this bill up again despite the fact that I feel as though there are statements made and this morning regarding the bill and regarding the motivation behind the bill and the motivation behind the bill is not to tear down law enforcement it is to deal with what many of us see as a problem and the way it is and it's the way we deal with things sometimes but I think it is clear to me anyway that we have a problem in the way that qualified immunity is perceived to protect police and it may not protect in the way that it should be and I think there are some problems with the court and I think it could be improved but based upon the testimony here probably will be difficult to have any meaningful discussion about it but but we'll continue on as a committee and we'll get to Sheriff Mark who will be our first witness the next time and I apologize Sheriff she would have been a hard act to follow thanks alright we will adjourn