 Good morning and welcome to Vermont House Judiciary Committee and we are joined this morning first we're going to be hearing from representative and chairwoman Alice Emmons and Commissioner James Baker, Commissioner of DOC regarding Department of Corrections racial equity proposal. And I'll now turn it over to representative Emmons. So you can help us understand and thank you appreciate you're being here. Welcome and it's a pleasure to be here for the record by name is representative Alice Emmons chair of the house institution corrections and institutions committee. And I believe the language is there on your webpage. We in the committee have been working on this language for the past couple of weeks, and we are, we took a vote on the languages past last week at the end of the week and our committee supports this language on a vote of 911. We have taken testimony from the Department of Corrections from the state employees and also from the advocate community with Joanna Davis, as well as we reached out to Tabitha Moore. Tabitha was unable to attend due to different conflicts so she's suggested we reach out to a Mr. Marks or Marquis. We did he testified. We were hoping to have Eton, I have a hard time pronouncing his name he had a lot of scheduling conflicts as well so we did the best that we could in a short period of time. But we would ask or we would like this language to be added to one of the bills either s 119 or s 124 that's working through our side of the General Assembly, because we feel that starting to address racial equity and bias within our community corrections is really important as we move forward with really working with DOC and addressing some of the issues that have been percolating within DOC for a number of years and really giving support to the commissioner and the state employees in their goal of changing the culture within DOC. So let me quickly just walk you through the language, if you want to bring it up. The first section is really a findings section we had three findings that we wanted to emphasize the first thing that the Department of Corrections is within the agency of human services. In many other states the Department of Corrections is when it's within their law enforcement or Department of Public Safety, and we highlighted that within the statutes, not only is it within the agency of human services but we also cite 28 section one which is for the purpose of DOC is a rehabilitative correctional program that renders treatment to the offenders with the goal of them achieving a successful term and being able to reenter successfully into the community and to foster their human dignity. The second finding is that DOC does not serve in a law enforcement capacity and that the role of DOC is to really implement the quality of an individual's sentence and the ability for the person to return successfully to the community and to participate upon their reentry to the community. And the third finding is that the department's role is also to provide the security but within that to ensure racial and social equity to its employees as well as to the folks who are under the custody of the commissioner. We then went into an intent section that deals with it's our intent to address systemic racism and bias to achieve both racial and social equity for the employees of the department as well as for the persons under the commissioner under the custody of the commissioner. Our intent is also for the staffing to look at recruiting training and to return retain a diverse and high quality workforce within the department. And also our intent is to enhance a human services approach to the state correctional program which would require DOC to undertake a thorough review and revisions of its policies administrative directives interim procedures and memos. So the plan to carry all this out is that the commissioner of corrections would develop a strategy and a long term plan to address systemic racism, bias and diversity and inclusion in the department of corrections. And this would entail the scope of the plan would address the department's employment practices and supervision of persons under the custody of the commissioner in both our state facilities and out in the field in the community with our field offices. The plan would also identify resources and funding that would be needed to complete the plan. And it would also identify enlisted stakeholders in a process for how the department would engage with the department employees, persons under the custody of the commissioner and the broader community. And this report would then be submitted to our committee both the House Corrections and Institutions Committee and the Senate Judiciary Committee by January 15 of next session. So it doesn't go into detail in terms of what DOC needs to do and how to carry out the plan. It's the strategy for looking at the plan and come back to us as a general assembly to really be a partner in going forward with this. So that is the language that the House Corrections and Institution has worked on and support on a vote of 9-1-1. Great. Thank you. Thank you. I certainly appreciate this, this important work. Do you have time before we turn to the commissioner? Okay. I got plenty of time. Whatever you need. It's fine. Okay. All right. We do need to move to, to witness other witnesses, but Selena, go ahead. Thank you so much, Chair Emmons for joining us and for the important work of your committee that is really great to see this moving forward. I did wonder, because it seems like the, the entity that's really charged with coming up with the plan is, is kind of solely the Department of Corrections I wondered if your committee to considered or to testimony about whether it might make some of those stakeholders that are mentioned in the planning process like earlier in so that they actually were helping to shape the plan potentially as well and just bringing maybe some of that outside perspective. Or if you think, yeah, just been curious about if that was a topic of conversation in your committee. We did talk about this and it, this is a very 30,000 foot level look in terms of how do you see should go forward and that's why we put in the language in terms of what the scope of the plan would be that they need to come back with us. In terms of who the stakeholders would be in the broader community for us to do it much deeper dive in terms of how we go forward with this. This is just something to put in place that the commission would develop a strategy and a long term plan. It doesn't mean they're going to implement it. It's come back to us come January and we can do a much deeper dive and then broaden out the people who are at the table and I've also had conversations with the commissioner. And he feels that there needs to be as we proceed along later on in the plan, folks more folks at the table. Okay thanks I appreciate that in the interest of time I'll hold my questions there but thank you very much. Okay, I do see. Let's see coach and Barbara, and then also commissioner if you wanted to, if you want to jump in any, any point during these questions. Absolutely. I'll let I'll let the committee have their questions and then I can kind of summarize. Thank you. Thank you. Okay, coach. Sorry I was a muted sorry. Representative Evans, Madam chair. Thank you very very much for your intentionality. With this particular topic. My only addition to this discussion would be, even though it's a 35,000 foot view. The voice that could help the commissioner in that 35,000 foot view. And that would be the office of racial equity, being that it is a cabinet level, you know, position. And that expertise could help the commissioner in the execution of the directive of the committee. My only suggestion, even though we've asked her to do a thousand other things, but, but that's a separate issue. But that would be my recommendation. But thank you very much for your intentionality because that is appreciated. Thank you. Thank you both actually. Thanks, Commissioner. Thank you coach Barbara and then can chair and then thank you so much for your work on this. This is so exciting and I'm thrilled to hear of the strong vote coming out of your committee and the strong desire to move really towards outcomes and rehabilitation. I think we will see some big recommendations for changes and some of them obviously will have financial implications. So I'm wondering a couple of things one is in terms of either justice reinvestment money or other funds that we can make sure we're implementing this because in any given year we won't see savings but over the long run. Oh my gosh, I'm sure this will mean big financial outcomes for our state as well as important human outcomes. So that's my first question. My second question is, I'm hoping that we'll look really broadly at other countries that have done this as well as other states because it's just amazing to me. Some of the skills and successes that people have coming out of prison elsewhere. So in terms of the justice reinvestment and reinvesting those savings. That's a real conversation for us come January. And that's why we really we did say identify resources and funding needed to complete the plan. And those savings are long term savings and they come in not all at once they come over a period of time and those are conversations for us to have come January in our next budget cycle. And I do believe that people are open to looking at other states of the countries in terms of delivery of their correctional services. This doesn't limit anything. This is just laying the first foundation on how do we build on this and give support to the employees to Department of Corrections and to our offenders that we are dealing with this. Thank you. I assume it would also end up meaning that certain subcontracts that we have or contracts would go away because for example course civic might have a very different philosophy about rehabilitation then this report will issue. Course civic has to apply has to comply with Vermont statutes and policies and directives. That's negotiated in the contract. Thank you. Ken. Hi, good morning. When coach was talking and he wanted somebody else appointed was he talking about Susanna to that to the board or or the committee. Yes, I believe so and we can adjust the language pretty that there will be a consultation or she would be part of it. We did have her in to testify and she was supportive of this language. I'm just curious why wouldn't she have already been on Ben there, you know appointed to that or been involved on that or the language already putting her in there. I think it was just really an oversight on our part we were just trying to get the language done in a timely manner. We wanted to be inclusive but the real plan needs to come from do see because you're dealing with the operations of do see what they need to change internally. So there, I don't believe the committee would be opposed to reaching out to Susanna and having her, you know have the do see in consultation with her, or, or how we go forward with it. Okay, I just my curiosity I appreciate that. Thank you and thanks coach for bringing that to my attention, although it pains me to say that. Thank you. Okay, I am seeing any other commands, good people minute, but. Okay, great. So, Commissioner. Welcome, Madam chair. Thank you. Thank you. And, first of all, I want to say that, not only are we fully supportive of the language here. You know, we've been working very closely with chair Emmons and her committee on this conversation since I arrived in January, and just to kind of put put folks concerns the rest. We have conversations with director Davis on a regular basis. I've talked to her several times since I've been here about equity fairness impartiality bias within the correctional system. We are engaging with folks such as Tabitha Moore, we have a contract with Tabitha, who is assisting us. We've been working on equity fairness and impartiality, long before this language started. It's one of the things that early on in the process. Coming from the background I come from with a pretty good understanding of implicit bias, and how bias affects organizations. I started focusing on this very early as the commissioner. And really this language is kind of for us in corrections is going to help us formalize and formalize the guidance of moving forward to change the culture. I want to emphasize something else that just just not just the set of expectations here I don't chair chairman chairwoman Emmons can correct me if I'm wrong on this. We're not looking for this report to give guidance on rehabilitation. We're looking for the report, the HCI to be a framework for us to work on the issue with equity focused on equity. It's not only equity of the people that ultimately I have the responsibility of supervising and are in my care by statute, but it's also about our employees. And it's not just about race. I've been pretty clear. And, you know, I know I may have shocked some senses in my testimony about the over sexualization of the workplace in corrections, but I'll say it again. I have a challenge in corrections around the over sexualization of the workplace. And this is really focused on things like gender. I've had a case within the last week where a female employee decided to leave. And when we had the superintendent go back to that employee. It was around the issue of for lack of a better term being hit on. And we have we have a challenge with all areas of protected classes in our system. And so we've started a very deep dive into this. That's why I within the last two months created the office of professional standards. That's where this conversation is happening. Heather Simons heads up that she gave a lot of testimony to Chairwoman Emmons committee about what's going on inside corrections and the work that we're doing. So I'm hearing what everybody's saying. And I'm telling you, I'm giving you my word that this is going to be an inclusive conversation. We've already included folks such as director Davis, Tavitha Moore. We're about ready to enter into a contract with a mosque group to help us with this. And I want to touch on the money piece for a minute. I know representative knots on the wine and remember from my days in Rutland as the chief. I always get amazed by being offered money up front to work on a project. And I appreciate that, believe me, and money is not going to solve this. It's about a culture. And you're talking about a culture that has to be penetrated by leadership and policy and guidance and holding people accountable. And money's not going to pay money's not going to buy that. And there may come a point where we get to the point where we've got to discuss potentially money. And now our relationship with people such as Tavitha Moore, the mosque group. I'm finding resources internally inside corrections to cover those costs right now. And they're giving us enormous guidance. And we are taking a serious look at our policies procedures. There's a two person team right now dedicated going in and starting to clean up our policies direct as procedures. And as we clean those up, it's an eye towards looking at those policies. This is where we're using the expertise such as Tavitha Moore to take a look at where can bias creep into the system system through a policy, and making sure that we shut those doors that bias cannot sneak into the system as result of that. So, I don't have much more to say other than as the Commissioner of Corrections and, and I can tell you I have the support of Secretary Smith and Governor Scott, that we are, we are taking a serious look at who we are, how we operate. I want to reemphasize that it's been a very interesting process as we started talking about this inside corrections. I'm getting direct emails from employees, employees of color employees who may have a different sexual preference and they are opening up and talking about some of what the historical damage that's been done as a result of the inequity in a system that treats an employee different because of a particular protected class. And it's been enlightening for me to get some of those emails and it drives our conversations internally about how we're going to address those issues. I think just respecting your time Madam Chair I'm going to leave it there, and open it up for questions. I'm going to close my comments by saying, again, as the Commissioner we are committed to this equity work, and we're going to, we are going to work at it, and we are going to make changes that are going to treat people fairly and partially and with a level of dignity deserve. Great. Thank you. Thank you very much. I appreciate that. Do you see coaches hand coach, go ahead. Okay, I'll be very brief, Commissioner Baker. I remember those Rutland days, and we borrowed a lot of your work in my own community. And I have the utmost respect for you and your work, not only with project vision and how that helped a number of our communities around the state. Do that deep dive that you're talking about, you know, as well as your work with 21st century policing. So, with all due respect. Keep up the good work my friend. Thank you representative I appreciate that. And I appreciate your kind words. Thank you. And thank you coach I echo those those as well. So anybody else I'm not seeing any hands but again I want to make sure that sometimes it takes a little bit. Yeah, Barbara. Commissioner, great to see you. Thank you for there with this job, I'm really grateful. So what you're talking about and the work you've done are really important. I, in my mind, they're sort of cleaning up what you're cleaning up now in terms of the culture, and then there's making that transformation that Edmunds was talking about. And I see what you're talking about now is step one, but I'm hoping step two is really, you know, able to think as sort of broadly as possible, because I sure envision full rehabilitation looking really different than it looks now, even with the culture corrections that you're cracking down on. Yeah, I appreciate that you know I guess my comments back to you are that I learned a long time ago in coming into organizations that have had some challenges. And again, I have to qualify this by saying, you know, nine months into this, we have some unbelievably dedicated people inside corrections, who are very bright, and really, really understand the piece around rehabilitation. Again, I'm not a correction person so they're educating me represented on a daily basis. Like I said, the reason why the workforce is so important to me is there's a saying in another part of my life where I do work around well being of employees and some consulting I've done around that. There's a saying that hurt people hurt people. Follow my reasoning. And so we really do have to take care of our workforce. That doesn't mean that I'm giving folks pass on stuff. I'm giving them the workforce because the way they're treated is the way they will treat on the people. And so I'm convinced of that through my work. And so that first piece, just to be clear that first piece is really focused on that that begins to help change the culture. We are going to get to a place where you know, even if we didn't want to, but we do want to. And work like we're doing around the print project in Springfield, where we're looking at the culture on both sides of the equation, the incarcerated population and workforce. This is a combination of all that work. And why we were so supportive of chairwoman Evans, reaching out and saying look, I'd like to put some language to it. We're all for it, because it gives us guidance that holds us accountable. And it's going to force us come back and report to you. And so that's my thought process on that. And I think eventually, when you when you have a healthy workforce that feels like they're supported. It's a much easier to get people to follow when you're going to that makes sense. Thank you. Okay, again, thank you. Thank you very much. Thank you. Great. Thanks. Someday, someday hopefully we'll get off soon. Yes. Yeah. Great. Yeah. I'm just wondering what the next step should be. Are you going to be looking at the language to include in the bill, possibly. I'm just trying to figure out what the next step should be. Sure. Certainly. I think 119 would be, you know, a good place for this. And I can't speak for government operations, but that's where they're currently working on 124. So, I think it fits probably better here. Okay. All right. Great. Well, thank you. Thanks so much. Have a great day folks. Yeah, you too. Thank you. So are you going to be talking any more about this language or are you moving on to other parts of the bill? Right now we're going to move on to other parts of the bill. Right. Yeah. So feel free to reach out to me if anyone has any further questions. That'd be great. Okay, great. Absolutely. Thank you. Great. Great. Thanks for joining us. Okay. So we're going to move on to back or back to 119. And we do have witnesses with some time constraints. So I do want to try to keep on time. There is a new draft that has that was posted yesterday. Folks want to look on our committee page and ask will do, will do why to join us, please. I'm having trouble accessing. I have a meeting between 11 a.m. and 1130. Technical difficulties. Is it possible for me to come back at 1130 a.m. after I've sorted all that out? Absolutely. I'm sorry. I'm misunderstood. I thought you need to leave by 1130. I'm sorry. Yes. Thank you. Okay. All right. Great. Available to testify now. I'm sorry that the. The order isn't as referred to. Chairwoman, you all have to forgive me. I'm not well. So I'm struggling a little bit this morning. Hopefully you can hear me well enough. Thank you. Yes. So I'm appreciative of the latest draft. It looks like it's been very much reflected. Of a lot of the comments that folks have made over the last couple of weeks. As you've been considering this work. I don't have a ton of comments on. The initial part. I know that there's some different camps of folks that want different forms of action. Some that. Want to do more task foresee. Something in the realm of task force and living around in the space of just strict policy. You know, sort of internal policy rather than actual codified law. And I think that both can be useful if it is the right mechanism to do so. I'm grateful of the amendments that I see that happen here based on some of the things I said. Excuse me. I am concerned. That we might. We might still run into some barriers around. Support from. We don't really need to do this policy with an eye towards whether or not the. Administration will support this because that's not the intent of the work that you all are doing. It's to just work for the pleasure of the. The administration. I did appreciate the. Amended language. In. Gosh, it's a long way. That's Anna that begins on page six. That, that strike off that strike that you did there too. Instead. Focus a little bit more succinctly. On. If there was a failure to take an account, these other mitigating factors that may have to do with how someone might present. In a moment in an encounter with law enforcement. I think that's a really. Key piece. Again, just recognizing. That humans are not. Automatons and are not able to. Respond in a cookie cutter or prescriptive fashion. Towards what can be deemed as dangerous and traumatic experiences. So I'm grateful for that change there. When I'm looking at. The. Additional changes. Under page on page 10 under section C. A law enforcement officer acting in the officer's capacity. May use prohibited restraint. If the deadly forces justified. But if they're not justified, then the use. When there's no longer a reasonable belief. That the person is subjected to the restraint. I believe that that was also in response to the testimony to say that, you know, there. It's not something that you just do to exhaustion, but it's something that there needs to constantly be constantly be a judgment point or judgment call that's made as to whether or not that tactic is still. Useful within the context of the encounter with law enforcement. So I think that those are really, really important pieces to keep in there. And I'm grateful to see that language as well. I mean, overall, this is a. A whole poll important first step. I believe in trying to. Get at this work. And it still is very important and novel and groundbreaking in itself. I can tell you that rights and democracy. Does support this language and that we will happily. Have our members and community. Partners help support in. Lifting up this important work right now. I don't know if there's specific questions you have for me. I need to. Drink something warm real quick. But I'm happy to listen and take questions. If you have any right now. Okay. Thank you so much. I really appreciate you being here when you're, when you're not well and do I do hope you. Take care. Martin does have a. Have a question, which so you can have some warm tea while he and Selena. So. There you go. Yeah. Thank you. Thank you very much. I hope you feel better quickly. This is the, that kind of here with allergies and all sorts of bug booze going around. It seems. So. I've just. Was presenting and discussing this bill. With, with the Senate and. Judiciary committee and it's. We're, this is an odd process. This, this year. As we get close to the end of the session. Because. No, we're not really operating as a unicameral. Body. But we're doing more coordination before passing bills. That we usually do with the Senate, though, sometimes we certainly like to. Coordinate as much as possible. On where we can. But any event, the reason I raise that is there are. A couple of issues. Primary issues that. The Senate has with the bill. And I just want to. Raise those and get your input on it. As well. And actually one of the issues I. I already had. But let me explain why this, why this revised version is out there because. Frankly, I'm not necessarily endorsing it. It's for discussion as much as anything. It's in reaction to the. Estimony that we received. Last week. But there are issues that, you know, I wanted to put it in front of folks. I wanted to hear from folks, but frankly. I do have a couple of issues that I do want to raise. Because I'm already the more I look at it, I'm, I'm not in support of a couple of things that I even have in this thing in this proposal that I put up for discussion and it's in part. Confirmed by some of the issues that the Senate. Judiciary committee just raised with me. And the first is in fact, the policy, the section one. And the section one. A couple of things. Senator white. For instance. Feels that we have this covered in S124 and S124 is consistent with the executive order of the governor. My issue was as far as the confusion that this could raise. With the executive order of the governor that is already put into place. This process. For coming up with a. The policy, the uniform statewide policy. And if we put this in there, it may confuse. Really. That process that's already started. So as long as, you know, if we have the standards put in place and this process is proceeding. Presumably. That process will, they will look to. The standards and, and comport with those standards in that process. The other thing is just. Really, whether we have the right. People at the table in the section one in subsection a. I think that will the white may have more to say about that a little bit later when she comes back and testifies. So, so my inclination, frankly, is that. We're fine with the executive. Well, I don't know if we're fine with it one way or another, but leave it to that process that's already started. And presumably they will follow. Well, they almost have to, if we put this into legislation, the standards that's going to have to comport with those standards. So that's one thing. The other thing is with respect to. I don't know if you have any comments after that, but the other one, it has to do with the section or the. S 2 19. Prohibited restraint crime and the new language that is put in there. As far as. It's on page 10 subsection C. As far as that when the use of chokehold essentially is justified. Now that language and. My understanding from state's attorneys is that. That's already implicit. It's already, it's already a defense. The justifiable homicide statute, which we are. Which we would be if this bill passes would be amended. That would apply to any situation of that prohibitive restraint crime. That would be available to a law enforcement officer. That would be available to a law enforcement officer. That would be available to a law enforcement officer. To show that it was justified in the use of the prohibited restraint. And there's also a common law. Defense of self-defense that's available. This language is making that explicit. But it's not. Necessary. And it is raising an issue. Certainly with the Senate on, on whether that should be in there or not. But it's not. It's not. It's not. It's not. It's not. It's not. All of, you know, that section three. So I just wanted to bring that update because we are working in this weird world where we're trying to get to a point where. The Senate can concur with the bill. And I independently agree with the issues that they raised. I will be when we get to it. Suggesting slightly different language. I'm not sure if we're going to get to that. I'm not sure if we're going to get to that. I'm not sure if we're going to get to that right now. You know, this is kind of. For what is. That section that you pointed to. Kaya in. The standards for law enforcement use of force page seven. I have. It should be posted by now. I'm not sure if Lori has gotten it posted yet, but I asked her to post that. It makes it. More directive. Yeah, there it is. It is there. It makes that language more directive. Rather than. Kind of an after the fact of accountability. It's saying that, you know, the law enforcement, if you know, which is actually relatively high standard. Know that the conduct is the result. Of medical condition, et cetera. So I'm not sure that you have to factor that in to what. Amount of appropriate force you're going to use, if any. It's a little, it's a little stronger than the language that. Is in the draft number 3.5. So I'll stop there. I just wanted to point those few things out. If you have any input on. On those. Okay. So on the sections that section three that you're talking about striking. It's not uncommon to hear that. Well, this is redundant. We don't need it. We already have it. It's implicit. We have case law, blah, blah, blah. People are dying. Okay. That's unnecessary. That's redundancy in our society. It's okay to be explicit about what we need to have done. And it's okay to speak this here. And so unless this is going to somehow counteract the good work of the rest of the bill. It's okay to be explicit about what we need to have done. I don't know. I don't know what's the point of wanting to like win. This is, this is wanting to win this. This wording. Remembering again that the public is needing. Greater assurances and greater support. And they're needing to have a greater ability to trust that this policy is going to have meaning. And so I don't have to take their word for it when the state's attorneys are not working on the people's behalf. I don't have to take their word for it. I don't have to take their word for it. I don't have to take their word for it when they're fighting on the streets and camping out in downtown Burlington. So. Can I make clear, I just want to make clear of what I'm suggesting. I just want to make sure that we're on the same page. Right. Just. The only part that I'm suggesting that's taken out the prohibited. Restraint crime would remain. The part that would be taken out is just subsection C. It's a nonprohibited restraint. It's a nonprohibited restraint. It's a nonprohibited restraint. And I think the rest of the sentences from. Senator brutes mouth actually makes it seem that it's more permissive to use a prohibited restraint. That's why. They don't like, or he doesn't like, I think the rest of the Senate judiciary doesn't like the. Added subsection C. Because it makes it seem like a prohibited restraint. It's a little more permissive. So I just want to make sure we're on the same page. That's really interesting interpretation. And no, you can have a different interpretation. That's great. If you, if you're reading it differently, that it's actually helpful for, for the folks that we're trying to address this for. This. As I had read it when we were considering, when this language, when, as I read it, it felt to me like a, like a lever to be able to determine. But there, there has to be a point in which prohibited restraint is. It is used as a temporary mechanism. We don't want. Okay. Let me put this back. The standards for what's going to be considered a prohibitive restraint are pretty. We have high bars for all of this. Okay. So being able to say that someone actually used the prohibited restraint and then have that hold up in court is going to be still an enormous mountain decline. So I don't know that I feel. That this. Makes anything easier. But it certainly gives us a cautionary. That they should not be. That it should not be the go to, it should not be the start and the finish. To these police encounters. If that makes sense. Hi, my dog agrees. So. That is helpful. Yeah. Thank you. So thank you for that. So the other part that. Is that on page seven. Yeah. No, I did like the language there. So I guess that's, that's what I'm just saying. Unless they have some sort of a, unless they have some sort of language that can offer that. I'm concerned that we have just said. It's prohibited. But if it happens a well. And that there isn't ever a point in kind of accountability. Where there has to. There has to be a change in the use of tact. That particular tactic. I just worry about that. That absence there. So I guess that's what I'm just saying is I don't, unless they have some sort of a, unless they have some sort of language that can offer that. I'm concerned that we have just said it's prohibited. So I guess that's what I'm just saying. I just worry about that's at that absence there. That's how I read it. Thanks. Thank you. Selena. Thank you so much for joining us. I'm so sorry to hear that you're not feeling well. I'm just wishing you speedy healing. Thank you. So I think that's the. The exact language of the bill, but more about. I think some of the attention in the testimony that we've heard that we're trying to work out here. And just would love to hear your thoughts, but please don't feel like you have to. Give a long or lengthy answer at all here. So. I think the earliest versions of. to detail our expectations. I'm sorry, my computer's telling me my internet is unstable. So if I'm wavering in and out, I really apologize. Went to pretty great lengths to really commit and statute to putting some strong language and parameters here. And then in subsequent testimony, especially the testimony we heard from law enforcement last week, there was a sense of like, okay, we really think you should not commit so much in statute, just direct us to write a policy, leave more to our discretion and kind of trust us to get this right and do the work. And I know from serving on this committee with you that you are very, very familiar with that dynamic and that tension, whether it's, you know, our fair and impartial policing approach or any number of issues. I'm just wondering, I'm looking at this draft in and have some questions about whether we've got the balance right here about what we commit to policy and what we leave to statute, what we really formalize in statute. And so I'm wondering if you, you know, either with regards to specific language in the bill or just regards to that tension kind of on a more general level, if you wanna comment about the, you know, pros of really putting some parameters into statute versus sort of directing law enforcement and others to write policy that addresses these issues. I appreciate that. I, you know, it's, this is what concerns me about this is that there are municipalities right now that are engaging in conversations around developing their own use of force standards and policies and that is chilling to me because again, as I've said in previous testimony and I'll continue to say it again, there is no historical precedence that shows us of the capability and the critical analysis, the human rights protections and the ability to truly hold the heart of what's necessary to make these types of policies have meaning that will be held definitively not on the municipal level. That's without a doubt. They are completely unqualified to do that work. And so it, to me worries me more that we're giving an off-ramp for an entity that has not have a proven track record of an ability to have integrity around this work to give them the ability to continue with business as usual and to create an even more complex problem that our courts are gonna have to deal with because everybody's working from a different standpoint. There was obvious reticence around just completely embracing the executive order when it comes to the enact the development of a policy that's definite suspect within that. Again, we don't have precedent to prove that there is consistency in a true critical analysis of what this means on the ground for people coming from our administration. So I don't, or from the Department of Public Safety in that sense and the commissioner at all, at all at this point in time that we should just give that blind faith that that's going to happen. We did that good work of the fair and impartial policing policy. And to this day, we're still fighting over this work. We're still trying to get data reporting happening. We're still trying to get consistent use of this policy in and of itself. So that is obviously not the solution. I know it makes some folks it makes the attorney general's life more complicated suck it up, that was your job, yo. But it's okay to press our courts and it's okay for us to press legal precedent so that we can try to get to a better place. But if we back away from doing that work of putting in actual policy then we have nothing to stand on other than hyperbole and good intentions. So I feel like this does strike an important balance that we need to at a minimum protect this is groundbreaking. And of course, that's why the resistance is so hard. That is why these entities are pushing back so hard because they like their perfect plans which work out imperfectly and have a lethality when they are actually applied to human beings. So I applaud you all's good work and I truly hope that we can mobilize our communities to help come out and in support of this and that that reckoning that we're needing to have happen within law enforcement actually takes place and that we're not just doing another sleight of hand in this work that we're doing. So I appreciate your fight on this and I know it feels like an uphill battle but we'll keep doing what we gotta do. Thank you so much. I just really appreciate your perspective and your words. Thank you. Other questions? Okay, not seeing any hand. Kaya, anything else you wanna add? No, I know it's hard. I know it's exhausting. So thank you. Great. Okay, well, thank you so much for being with us and do feel better and take good care. Thank you. Let's see, how about Chief Pete? Are you available to testify now please? Yes, ma'am. I am available at the committee's discretion at any time. Thank you so much. Well, again, I really appreciate the opportunity to come back. I appreciate the opportunity to speak and let me just start by saying, Mrs. Morris, I have a huge amount of respect for her diligence and for her strength and working through this. I would say that thank you very much to the committee for your willingness to reach out to everyone to try to bring in, to try to facilitate true change, especially when you're dealing with culture things that these things have to be embedded in law and in policy, so I really agree with that. I would just say simply that I think you guys have done a tremendous amount of work and just that any policies that are put forth. And the reason I keep saying policies as opposed to statutes and with the flexibility thing is that we as human beings find unique ways to hurt each other, to discriminate against each other, to do all different kinds of things, especially when technology arises. So right now somebody, and we're talking about something vicious that happened with the chokehold, but policies again, give you the flexibility without having to come back to a statute that if someone else out there does something like for example, you hit someone with a car. So we need that flexibility, which is why I'm coming in and saying policies. I don't think that it's my intent is not to give the image that we're doing and I'm recommending it as a way to weasel out of something. I think that policies do account for civil and criminal liabilities and that you can't be helped by that standard based on that, that it's not a discretion to say, we know what's best, we're doing that. I'm saying it because we need that flexibility to figure out how to counter somebody else's, when somebody tries to figure out a way through something and that it's faster to do it via policy. But any policies that come forward, I would say would just be, they should just be looked at the Graham standard as far as like how use of force is applied. So those policies should be based on those Graham standards and anything that's controlling case law within the state, anything that's coming out from the circuit that says, that gives us that legal guidance as to what it is that we're supposed to be doing. Otherwise we wanna make sure that there's no conflict in between those two. There was, in looking at, I did have a quick question that I just wanted to see if I can clarify on page, I believe four of 12 on, talks about section three, talks about imminent death or serious of imminent threat of death or serious bodily injury. One thing that always kind of confused me about the California standard was, I thought there was ambiguity when, in that last line that says an imminent threat is not merely a fear of future harm, no matter how great the fear, no matter how great the likelihood of harm, but is one that from appearance this must be instantly confronted and addressed. What's that definition of instantly confronted and addressed? Cause I think that also leaves some type of room for interpretation of like, if you wanna look at Hess versus Indiana or Atlanta versus the US or anyone who may say, again, just throwing it way out of the ballpark but if you wanna say, stand your ground. What is that definition of instantly confronted and addressed? So I'm not sure if that line itself, to me, I think if the intent is something like a means and an intent, it's like, it's not more just to say, hey, I'm gonna kill you and that in itself, you know, oh, well, he said he was gonna kill me so I can use deadly force, but it's also, again, it comes to that Connor standard or that Graham standard that not only do you say, I'm gonna kill you, but you have a knife in your hand and you're charging at me. So what's the totality of those circumstances? So I just wanna make sure that that intent in that last line, whatever that intent is that it's captured directly with no ambiguity at all. And then again, that's why I'm looking at like the Graham standard. Because again, I really do believe in holding us accountable. We have to get the trust of the community and we have to show that we're out here and we're pushing for that. We're listening to the community and we understand the things that are going on and how do we make that cultural change and you do it with leadership and you also do it in policy and you also do it with law, which is what you all are doing. And I am really proud of the work that the state has done. And other than that, I just, other than that, just to make sure that the languages are all the same. I think that's it. And again, I sincerely appreciate the chance to be here. Great, thank you. I appreciate it. That's helpful, especially your comment regarding the Instantly Confronted and Addressed. So we'll certainly go back and look at that. Committee, any questions? Not seeing any hands. No, okay. Well, great. Well, thank you. Thank you so much. Yeah, thank you. Good to hear. Okay, great. Let's see. I think I'm gonna take one more witness and then we'll take a break and then after the break we'll move to Will this. So how about FAKE of ACLU? You put you there, there you are. Great, thank you. Hello and welcome everyone. My name is Falco Schilling. I'm the advocacy director for the ACLU of Vermont. And I appreciate the opportunity to come back and testify on this piece of legislation. I just wanna say from the start, this is a piece of legislation, the ACLU of Vermont supports in reviewing the current language. We'd be supportive of the committee moving forward. This would be happy to talk about some of the issues that have been raised both in the Senate Judiciary and some of the earlier testimony. But before I get into some of those specifics, I just wanna kind of frame this up again in the conversation we're having. We're having this conversation because people have lost faith in the status quo when it comes to law enforcement using force. And when we're talking about what this bill is trying to do, it's trying to elevate that standard, move beyond the Graham standard, which is the status quo, and put in a higher bar for law enforcement to look to when they are going to use force. And that would require that it be necessary and proportional under the totality of the circumstances. And that's why we support putting this into statute because as I said in my previous testimony, what this does is it sets the floor by which law enforcement would have to comply. So the current floor is the Graham standard, which is a constitutional standard, but states have the right to go above and beyond that. And to be more restrictive when law enforcement uses force. And that's exactly what this bill is trying to do is be more restrictive and set stricter guidelines for law enforcement use of force. And not just deadly force, but all the use of force, which we think is extremely important. And when you hear folks talk about the need to keep this out of statute and allow this to be left up to policymaking for law enforcement, they are trying to keep those decisions within law enforcement and to police themselves. And people have lost faith in law enforcement's ability to police themselves. And so that's why we think it's important that the legislature move forward with this bill and to put those standards into statute and then allow the law enforcement community to build up policies or standards or whatever you wanna call them, their own guidance on how to comply with this new standard. When looking at the changes to this piece of legislation from the previous draft in relation to section one, I think the comments made earlier were well founded about how this seems in some ways to track with what is already going to be happening with the statewide use of force policy. So we would not be opposed to this language being included but also don't think it is necessary for this bill to move forward. The one thing if this language is struck that might make sense is requiring a report back on that work to your committee and other committees of jurisdiction. So you can have an overview of what that policy looks like and see if there's any statutory changes needed after seeing how that policy has been developed. So that is one section, one suggestion we would make if the committee was looking at removing that section, but at the same time, how the section is currently constructed, it would require law enforcement to develop those standards and policies based off of the statutory standard. And that's why we would support it because it would be based off of the work done by the legislature to implement this new necessary standard based on the totality of circumstances. When looking at some of the changes are made around the totality of the circumstances, one suggestion that we would make is where it says an officer knows. We think that that should include knows or should have known because that would make it so that when someone is making a case that an officer should have known some of these factors, the officer cannot just say, I did not know it. That allows you to bring in the discussion of reasonableness and when a reasonable officer should have known under those circumstances and doesn't allow that defense based on their subjective determination that they did not know. So that allows for a fact finder to make that decision based on reasonableness. And so I've seen the modified language, I think that also has the known standard. So we would suggest including should have known which I believe was in an earlier draft of the bill. Going. Can I ask a question before you proceed with that? On that issue of should have known. Does that, the concern there is that by having that the should have known standard that's essentially bringing in a negligence standard into the consideration by, let's say state's attorneys on determining whether to charge assault if it's use of force or homicide, if it's use of deadly force, that I think that's the concern of going to the should have known standard and going to the should have known standard. Also, that definitely goes beyond what the current case law provides is my understanding, unless you correct me that I'm wrong about that. So I agree. I think your assessment of those issues is correct. And that's part of the reason we are supportive of that because it does put more of an onus on law enforcement that holds them more accountable for what a reasonable officer should have known under those circumstances. Okay. Yeah, I guess I'm still trying to figure out how that works with criminal law, that component of it. Because that's in part, there's two parts of this. There is obviously setting up a right for individuals to bring a civil action, be it federally under section 1983 or under state law. And then I suppose it makes more sense in that context than it does if there's a state's attorney thinking about an assault charge or homicide charge. I'll have to ponder that a little bit more. I appreciate it. Yeah, and I appreciate that concern. And I think that is a place where they would have an opportunity to use their discretion in those charging decisions, but understand that the concern there, but also do echo that I think in terms of 1983 suits and other situations, having that increased accountability could be helpful. In concerning section 10C, I think we also see what the committee who was discussing earlier, that this section could be possibly redundant within current law and existing common law defenses and under the justifiable homicide statute. So we'd be supportive of cutting that language if that's something that the committee was considering. So I think that about wraps up my testimony on the specifics of the bill, but all I wanna say is that we appreciate the work that the committee has done on this, especially in a very tight timeframe. We think this is extremely important work and we know that it's not easy work, but that we appreciate that all everything that's been done by this committee to move this bill forward. And I guess one more point that I forgot to make based on some of the earlier testimony from the Department of Corrections, which is also an area where we spend quite a good amount of time. We would be supportive of including the language proposed by the Department of Corrections in S119. I think that that shows a really strong intent to continue on this work. We would of course be happy to collaborate with the Department of Corrections on that work for appropriate and we'd like to be able to continue that work when we come back in January and requiring a report back, I think would be would be positive and something we'd be supportive of. So if that is a further amendment to this bill, that's something we'd be supportive of. We hope the committee approves this legislation, moves it to the full body and it makes it into law in this session. So thank you very much and be happy to answer any questions. Great, thank you, that's really helpful and thank you for bringing in the corrections on language. Just want to make sure I'm following and in terms of that section C and the prohibitive restraint, you said that you feel that it's unnecessary so would support us taking it out? What if it was, what if it worked in? Well, I think we'd be fine either way based on the fact that it is in many ways trying to mirror what the language of the actual bill is and existing common law defenses. I think some folks, the concern was that it might in fact be redundant. And so if that's the case, we would not be opposed to it being in or removed because I think that that does reflect what is in the bill and what exists in current common law. Great, thank you. Martin. So if you could go back to the definition of imminent threat on page four and if you have any thoughts relative to what Chief Pete suggested as far as possible ambiguity in the language must be instantly confronted and addressed if you have any input on how that might be clarified and maybe you don't have it right this moment but if you can ponder that or if you have some input right now would be good too. I don't have any proposed changes to that language at this point in time. I can go back and look at it and talk with some of the attorneys in our shop and see if they have any concerns about it. But I think just the plain language reading of it it seems to make sense to me that is a threat that must be instantly confronted and addressed which means that there's no room for retreat there's no room for de-escalation and that it is absolutely necessary under the totality of circumstances that you instantly address that threat with force. So. So a follow up question and maybe this is I think I have seen in case law the terminology immediately confronted. I mean that doesn't seem like a big difference it's immediate versus instant. And if your folks have any input on that maybe it really is just the same exact thing that's already out there. Yeah I mean the plain language reading would have me think that they are the same but that's not always the case so I will try and see if there's any more insight we can provide on that. If there is a substantive difference between those two words. All right thank you. Thank you. Any other questions? Okay not seeing any. Thank you and thank you very much. Okay so committee let's take a 10 minute break and then we will start with Walda. I could get started committee please and now welcome Walda White. Thank you. Good record my name is Walda White. I'm identified on the agenda as the chair of the mental health crisis response commission but I want to be clear that the commission has not taken a position on this proposal and my remarks today as has been my testimony in the past really is as founder of mad freedom and representative of the psychiatric survivor community and particularly psychiatric survivors who are LGBTQ and black, indigenous and people of color. As the previous witness did, I really want to take just a second here to just thank you for all the work that's gone into this bill. I greatly appreciate it and I understand the challenges that you were up against and even though overall I'm disappointed that the direction that the bill has taken it's not lost on me all the work that's gone into it and I'm actually very grateful for it. I think it's good to work through these issues. So thank you for that. I'm not gonna go point by point through the bill because just as I said, I'm really interested at this point in trying to see if there's something that we can get in this bill that provides some level of protection to psychiatric survivors. I don't know how many of you know that one in four law enforcement killings are people who are an emotional or mental distress. Since 2016 in Vermont, six people have been killed by law enforcement while they were in mental and emotional distress. And even though it seems now the energy around a use of force or daily use of force bill is because of the killing in Minnesota, I would really invite you to look at Vermont and the killings in Vermont, particularly if people in a mental emotional distress and try to get something in this bill that addresses that and tries to eliminate that. So I support the what's been identified I think is alternate language B five. If that could be included in the bill, I think that would provide some level of protection and confidence in the process for the psychiatric survivor community. And just to be clear, that language would create a duty of a law enforcement officer to when they know that someone is impaired, they should take that to an account and deciding what level of force is required. And I want to underscore that this is not groundbreaking new, this is a correct statement of Second Circuit law. The Second Circuit says that the level of force that a police officer should use when someone's impaired, particularly when they have committed no crime, particularly when it's like a welfare check, the level of force that's justified is less than that would be if somebody were suspected of committing a crime. And so this is really just a statement of the current law as the Second Circuit has laid it out. So I don't understand why it's so controversial and it concerns me that it is because it makes me believe that law enforcement doesn't want to, if I'm understanding correctly, does not want to discharge its duty consistent with constitutional requirements. And then I just want to say a few words about why I can't support the bill in its entirety. And it's really because of the section one, the statewide use of force policy and the criminal justice training council. If we are really committed to doing things differently in Vermont and that is trying to address issues and structural racism and other axes of structural oppression, we really have to think about doing things differently. And this procedure that Vermont uses these commissions where they appoint heads of other departments and they throw in a few citizens and they direct them to talk to historically marginalized groups, that's not working for marginalized groups. Once we get on those commissions, we are silenced, we are erased, no one listens to us, they take a vote. Of course, we're the sole voice on the commission and we lose and our opposition is just hidden. No one even knows that it was opposed or why we opposed it. And so when you use this kind of procedure, you're just recreating the status quo, you're keeping the same power and balance. And for that, I just cannot support it. There's a particular kind of injustice, I hope you'll bear with me, I hope it doesn't sound too teachy or preachy, but there's a particular kind of injustice that people aren't really aware of, but it's real and it operates when you resort to this kind of procedure. And it's called epistemic injustice. Epistemic injustice was a term coined by a philosopher in 2007. And epistemic comes from the word epistemology, which is the creation of knowledge. And epistemic injustice arises when marginalized groups do not get to participate in the creation of knowledge such that they create to that body of shared, that pool of shared understanding so that we can actually talk to each other. Then an example of this is what happened with sexual harassment, which is a relatively new concept. Before that term was created in the 1970s, women couldn't talk about what was happening meant to the workplace because they didn't have the tools and they were not part of, they never got invited to create knowledge about that. And so they were epistemically, suffered epistemic injustice. And so what happens is, psychiatric survivors, we never get invited into these places where we can create knowledge about our experiences and share that and be able to communicate with other people about those experiences such that they actually understand us when we go into these committees and talk about our experiences of oppression. And so this kind of model just furthers that epistemic injustice. And epistemic injustice has been, epistemic injustice has been thought of as so critical that denying it actually causes people not to become who they are. Another part of epistemic injustice involves because of prejudice, not believing people when they talk. That's called testimonial epistemic injustice. And that happens often when black witnesses on jury trials, they're frequently not believed, particularly in the face of contrary testimony from police officers, women are never believed when they're, say they're raped, that's a form of epistemic injustice. And psychiatric survivors are never believed either. And that always, that also prevents us from participating in these kinds of procedures because people don't believe us. Because we not only have to be believed, we have to be understood. And because of the combination of testimonial epistemic injustice and what's called hermeneutical, what I described before, not being able to create, this is just not a process that works for us. And I wanted to spend the time to talk to you about it because I didn't want you to think I'm just kind of putting my digging in and just saying, no, no, no. But there's really a reason for it. And I would hope that as time goes on, this legislature would take up this matter of creating a more democratic process where people who've been erased from the public discourse actually have an equal chance of participating and creating a more epistemically just process. So those are my remarks on the bill. Thank you for listening. Thank you very much. That was very helpful. And I am glad that you shared that, that's important. Thank you. Selena. Thank you so much. And just, I'm just so in awe of your expertise and intelligence every time you talk to us. I'm just so grateful to you for sharing your perspective and your knowledge with us. I had two questions and one, not to put you on the spot, but I share your concerns about that first section and the direction to the criminal justice training council and sort of some of the shift from statute to policy here is partly how I'm directing sort of law enforcement plus to develop policies is a little bit how I'm seeing that I'm wondering if that section came out or was substantively altered in a way that sort of restored the focus on the statutory approach, would you feel like then we had a bill that was worthy of your support and the support of others? And like you can say, I don't think about that. I would totally understand that, but I'm just really curious. And then I do have one other question after that. I mean, I obviously prefer statutory, I prefer statutory duty rather than, and I've talked to Representative Lalonde about this, I'm in favor of duty rather than creating a statute that would just hold someone accountable after they've reached that duty because I'm more interested in living rather than having my legacy be a wrongful death action. And so that I more approach, I can get behind a statutory duty, I'm less interested, although it's not for nothing a statute that's written in terms of trying to hold people accountable after they've reached some duty that's actually not been codified. But I think the statute has some good parts to it, right? Particularly if you include something that creates a duty to take into account someone's impairment. For me, I mean, as an activist, I would consider that a win if that were in the bill, right? I mean, at least I can go back to my community and say, look, it's a duty in the law and now it's up to us to hold them accountable and to make sure there are policies and training. But right now, without that, there's really nothing, I mean, I shouldn't say nothing. Now there is a measure that says you can't shoot somebody who's only gonna harm yourself. That's also a good provision for my community. So with that amendment in there that the alternative language, that's a win for my community. Even with that first part, that's a loss for my community. I don't know if I'm answering your question. Well, I guess my question, I think my question, I mean, I'm hearing you say that the, I'm gonna tell you what I think. I'm hearing you saying you can, you can please tell me if I'm getting it wrong. I'm hearing you say this was like some of the underlying constructs, even if their improvements on the current situation don't go far enough in your, and I would agree, and I personally want to go on record, saying I agree with that. But, and I'm just wondering if the part that you're describing as a loss for your community came out of the bill, would the bill then be, is there anything else in the bill that would be damaging as opposed to just not going far enough? I think it's a better bill if the first part comes out. Just overall, I think it is, because right now I think through your first part, it conflicts with the governor's executive order. And I don't even know how those processes would work together, because in the executive order, it says that the Department of Public Safety is going to create this model use of force policy. They're gonna bring it to the Criminal Justice Council. The Criminal Justice Training Council is going to, they're required to have, talk to recognized stakeholders and then they make the final decision. And that's simply what you're saying too, although you're designating certain people that they need to talk to, you can't require them to actually listen to them or take action on the basis of it. So I don't really see the point of it at all. I think that the process that's been put in place by the governor is going to probably supersede yours. And I don't know what that means in terms of checks and balances, but frankly, I think that's what's going to happen. There'll be some token gestures to what you call marginalized communities, which frankly, I think is not the right language to put in here, because it makes marginalized communities feel even more marginalized and invisible. And so I have problems even with the way you've crafted the language here. I don't like terms like other historically marginalized communities. I mean, that's just more marginalization. I don't like that you put on a person with expertise and mental health issues. Just because you run up against these epistemic injustice issues, they're going to be listened to more than any psychiatric survivor. So for me, the bill is much stronger with that out. And I think it makes sense to take it out in light of the executive order. And then, and so then, I mean, so yeah, it's a stronger bill, it gets there, but I still have the same little, the prohibitive restraint thing is still an issue for me, but it's not, I wouldn't want to kill the bill because of my objections to it. I would like to kill the bill because of my objections to the section one, particularly the way it's crafted, because I couldn't support a bill that refers to people as other historically marginalized communities. I just wouldn't do that. That's just, I feel like I would be perpetuating the erasure of those communities to do so. I had one more, I don't wanna, I don't wanna, you know, I wanna make sure I leave space for other people's questions, but I did have one other question about another section of the bill, which is just, you know, thanks to your, I thought really valuable testimony early on and the testimony of others, that the definition of totality of circumstances has gone through a lot of changes. It's now really condensed from where it was in earlier versions. And I'm just wondering if you have any specific recommendations for us there, how you're seeing that definition really land at this stage of the bill. What section is that in, if you might need to? Great question. I see it, I see it. Okay, great. This is gonna ask Martin to direct us there because I stupidly closed, I mean, I just painfully closed the, where I needed to be in the bill. Yes, page four. I have it, I have it, I mean, I think this gets at, again, trying to hold people accountable instead of, you know, creating duties. I don't have any. Do you think it goes far enough? I don't know, I mean, I don't know if I have an opinion on that. Okay. There's something, I came in on the tail end of the last witnesses testimony where I think Representative Vellone were having a conversation about, should have known and that, remember that conversation? And I think Representative Vellone felt like or thought that should have known was, I don't know, I heard it as maybe creating new law maybe or not being the current state of the law. And I actually disagree with that because I think an objective, you're using an objective officer standard, right? The reasonable officer, what an objective officer would have known, I think whatever that language is, I think implicit in the word objective it should have known. Otherwise it would be a subjective standard. And so I don't think that's new law. I think that's really implied in the standard of the objective officer standard that's implicit in this piece of legislation. And so I mean, I don't have any major objections with the Toe Valley of the circumstances because I'm not that invested in most of this bill because of its accountability, you know? I just want that alternative language in there really. I'm just, I'm gonna, but that's what I'm really focused on. And I don't necessarily think, so what I'm now into is harm reduction and this totality of the circumstances definition in a harm reduction way I can accept given my problems with the bill. Does that answer your question Representative Colburn? It absolutely does. Thank you very much. Thank you. Martin. Yeah, I have two questions. Thank you again, Wilde, for your testimony. So this is an issue I know that you've testified before in writing and in person as well. I just wanna circle back to the importance or lack thereof that you give to the provision. And that is on page eight subsection C2 regarding necessary, adding a little meat to the concept of what we mean when we say that it has to be necessary, the use of deadly force. If you have any, if you can comment on that provision. If you were able to get that through, that's good. That's a good compromise. The other question I had is something that did come up and that's back on page four and what your input on, and you weren't here for that testimony, it was Chief Pete. I don't think you were. On line seven and eight, the must be instantly confronted and addressed and whether that there's alternative language that's less ambiguous. I'm not sure I understand why it's ambiguous, but I will defer to Chief Pete on that. You're on page four, part seven and eight. Yeah. And the question really is if you had any alternative suggestions that might clarify that language or if you think it's plenty clear and I will ask once, I'm gonna pile on the questions on before you answered that one. I think, and you can confirm, I believe in looking at various case law, I've seen the language along the lines of immediately necessary or something along those lines, the concept of immediacy of the need to use force or am I misremembering what that case law is? No, I would agree with that. My memory is the same as yours and perhaps we're both wrong, but I don't have any problem with understanding that section that you've identified and I think it is consistent with case law. I'm just thinking of actually, even though it doesn't seem to be a huge change, changing the word instantly to immediately because that's the language I've seen. Yeah, immediate is a better word. Instantly is lay people's language. Immediately makes it legalese. And it's in the case law. Exactly. All right, thank you. You're welcome. Great, that was helpful. Yeah, thank you. Anybody else just wanna give folks time to either jump in or put their hands up? Okay, not seeing anybody. Anything else, Boulder, that you'd like to? No, just thank you for your time. Thank you for the invitation. Thank you for the work on the bill. I greatly appreciate it and good luck to you. Well, thank you and speaking from my side, I really do appreciate your testimony and guidance and the work that you've put into this as well. Thank you. Yeah, take care. Take care. Okay, great. So how about we move to the Attorney General's office, David Cher, good afternoon. Good afternoon and thanks very much to the, oh sorry, for the record, David Cher, Assistant Attorney General with the Attorney General's office. First wanna thank the committee for working really hard on this bill. I know that members have been working intensely, thinking really hard about the bill and implications of various aspects of it and we really appreciate the work. The Attorney General does broadly support the bill. We do have a few recommendations which my colleague Julio Thompson will discuss in a few minutes here, but we do broadly support the bill and we appreciate again, the work that's gone into arriving at this position. Just a couple of points I wanna make before I turn it over and of course I'm happy to answer questions. One, I know there's been some questions about specifying the defense with respect to the prohibited restraints. I'd say our office has no opposition to that. I understand that there are legal opinions on both sides of the necessity of having that, but certainly we have no opposition to keeping that in if that's the direction the legislature decides to go in. The other piece that I would like to discuss is section one in particular and I very much appreciate the comments of Will the White on this section. I'd say we do support the section broadly. I would say however that we certainly have no attachment to the particular governmental mechanism by which the statewide use of force policy is created and we certainly are amenable to changes to how it is described, how the makeup of the stakeholders is described. Certainly I think Ms. White had excellent input on that that should be heated, but I do wanna make two key points about it. One is a legal authority point and the second is a process point with respect to the legal authority point. We understand there is the executive order out there to create a model use of force policy, but we would also know that the governor legally controls one police agency in the state. That's the state police, they are a very large agency, they're a very important agency, but there are 73 or so other police agencies in the state that the governor does not directly control and cannot mandate any of their policies. The branch of government that can mandate policy adoption is the legislature and the attorney general strongly supports having a singular statewide use of force policy as a basic fairness issue and to make sure that people have, I should say law enforcement has operational consistency on these issues and people have expectations of what will happen and how interactions will go forward. We do think that a statewide use of policy, use of force policy is very important and we would emphasize that the entity that can mandate that is the legislature. We understand that the executive order tries to, or I should say does have mechanisms in there to try to encourage the adoption of the policy or even coerce it by potentially withholding funding or access to training. That being said, I don't think that our concern would be that there's no guarantee of adoption by any particular agency and we would strongly encourage a mechanism by which there is a mandated statewide use of force policy that every agency in the state of Vermont must abide by. And again, the entity that can mandate that is this one. It is the legislature. And we did hear testimony from Ms. Morris earlier talking about how there is a lack of trust by some in the community about leaving this up to a municipality by municipality process. And again, we think that this is a good way to make sure that we do have a singular statewide policy. And again, we are, as I mentioned before, certainly agnostic on some of these precise mechanisms. Happy to see that change if that is important. But we do think that this is an important piece of it. The other aspect that we'd like to comment on the second major point is a process point. And I'd really defer actually to my colleague, Julio Thompson on this, but I'll just introduce it as a headline and I give the headline introduction here, which is that we do think it is vitally important that there be extensive back and forth between affected individuals, affected communities, affected stakeholders and the people who are designing the policy. I have no doubt, I have every faith that Commissioner Shirling and Executive Director Davis are working very hard and diligently to get that input and have that back and forth. But the executive order does require that the bottle policy be brought out on October 1st of this year, which is two weeks from today, two weeks in a day from today. And the type of really in-depth back and forth that we would hope for and that we think would really result in an excellent policy that takes into account the varying concerns that we would see, we would argue may require more time and more input, which is why we would support the sort of longer timeline. I understand there is the longer timeline that's in this bill, I should say. I understand that there may be some confusion on how the executive order and the legislative mandate might interact. I could imagine that a policy put forth by DPS may basically be the template that the sort of broader, the statewide mandated policy that this legislature would mandate may work off of and may work off of the DPS proposal. I don't think it's necessarily in conflict to have DPS put out a proposal that then gets worked from, if you will, to present a lawfully mandated statewide policy. But again, I would invite my colleague at the committee's pleasure and invite my colleague, Attorney Thompson to speak a little bit more about this. Attorney Thompson is actually a national expert on these issues. He has worked as part of teams that have developed some of these policies, some of the policies that are now considered really best practice policies elsewhere in the country. And he can attest to the type of extensive detail back and forth that goes on. One final thing I'll mention and then happy to answer questions and hopefully give Attorney Thompson a chance to weigh in on that process point as well and a couple of the other language recommendations. But I worked hard as part of the team that worked on the FIP policy and would note that if you were, I understand there are still to this day some disagreements on the final wording of that policy. But I would also note that if you were to go back and look at the proposals that came from the sort of law enforcement side and the advocate side at the very beginning of that policy at the very beginning of that process were very far apart. And the ultimate policy that was enacted adopted nearly all of the advocate's suggestions. Again, there were some that were not adopted, but I'd say as a matter of volume, it was the great majority and that it's become not just the great majority. I mean, I'd say like 90, 95% of the advocates recommendations were adopted and it was precisely because there was a huge amount of time and discussion and back and forth and the advocates did persuade law enforcement on a lot of their points there. So I do think that that process is important that extended the sort of time needed for an extended process is important. Many of the people that we would hope to have input from are not full-time state government employees. You can just dedicate time to this. They are people who we would need to allow them time to give input and to do that on a reasonable schedule. So that would be our, and again, no disrespect to Department of Public Safety, the commissioner, the executive director, we know, we have no doubt they are working very hard and with all good faith to do this well, but we would encourage a longer process to play out and one that results with a lawful legal statewide mandated policy that every agency must adopt. So those are our comments on it. And again, Julio Thompson has a little more detail and he can speak with real expertise on the process point as well. Great. Thank you. Thank you. Appreciate that, David. I'm gonna have here from Martin first before we move to Julio. Yeah, a couple of questions for you, but let me throw this out to you as far as an alternative approach since we're getting pushback from various places with respect to not just the Wilder's testimony we had, but with respect to the policy. So I would think we can let the executive order play it, let DPS have its chance to get this right. Presumably, assuming that this standards that we're trying to set forth in statute go into law, presumably they're gonna need to make that policy consistent with those standards and are gonna need some more time. So I don't think there's any, yeah, they wouldn't be able to get it done by October 1st, but I would assume that that could be lengthened. But I think more importantly is we can let DPS do this. It goes through the Vermont criminal justice training council as well. And we can require a report back to the legislature along with that policy. And we can then take testimony and decide whether we as the legislature wanna mandate that every agency in the state in fact adopt that policy. So that gives us an opportunity rather than this approach is we're assuming, all right, whatever you're gonna get through this process is gonna be acceptable to us. Yeah, we can go back presumably and say, no, we don't like it. But I like the idea of, all right, come out with that policy and then bring it before the legislature sometime next year, we'll take testimony on it and then we'll decide whether we're going to mandate that for statewide. So I think both those concerns that you raised can be dealt with in other words. And if you wanna comment on that concept, that would be helpful. Sure, I don't think it's a bad concept to, I don't think it's a bad concept to come back and it could achieve the same thing with respect to having a real mandated statewide use of force policy. I think that again, one of our hopes would be and one of our concerns is around the development of the policy. And I'm not, you know, that's sort of out of our hands with respect, that's an executive order. And the governor and commissioner may have comment on that, they may be able to amend that. I think that, but yes, I think your point is well taken. It could be that we have a attempt down the road to have the mandated statewide use of force policy and that that could happen next session. Yeah, so it's essentially give DPS and the executive order a chance to work and then require a report back with the policy and then we decide whether to go statewide. So the other question on the prohibited restraint language, you did say that the AG's office doesn't have a problem if we have this new language in and then we make sure I point to it so we're on the same page, but it's a page 10 subsection C. What is the position of the AG if we leave that language out and instead leave it to the fact that the justifiable homicide statute is out there and common law self-defense is out there as well. Are you good with it out? Just as you're fine with it in. Let me put it this way. I think that whether it's in or out wouldn't change our position on the bill. Let's put it that way. I think that I understand there's legal arguments out there that say that this is unnecessary. I think there are, and a good lawyer would be able to argue in fact common law applies or that there's sort of this justifiable use of force just file homicide statutes applies. That being said, I think that on the face of it, they're, I'll just say briefly, there might be legal concerns that, and I think law enforcement would have legal concerns that if you don't make it explicit, statute overrides common law and there's other aspects of Vermont law that say that Vermont statute say that, that the common law prevails unless there's a statute that explicitly overrules it. And if you do have a statute that says that this may not be used, and they're in any case, and there is no sort of stated in statute mechanism for overriding it, or for saying that there is in fact an exception to it, it may be interpreted that there is no defense in that case. That being said, I don't wanna overweight that and just sort of presenting that as the counter argument that come up and that I think law enforcement is likely to bring up on that. But I also understand that there's not agreement on that. I know that others have stated that their legal analysis is that this can be that there still would be a defense. And we understand that. And again, I don't think our support of the bill stands or falls on that. Thanks. Great, thank you. Coach and Ken. Actually, Ken Sam was up first. Oh, I'm sorry. I'm sorry, Ken. Okay, thank you. Ken, go ahead. And I feel I left out. Hi, Dave. How are you doing? Good to see you. I see you. Regardless whether it's the state police, all law enforcement have policies they must follow. Correct? You know, I haven't looked at every, you know, it is in fact up to agencies and municipalities to make their own policies. And I have not done a full review of all 73 agencies with respect to their use of force policies. And so I couldn't testify today that every agency in Vermont definitively has a use of force policy that they follow. I would hope so, but I can't testify to that right here. Well, I would, maybe commissioner Sherling could weigh in on that a little bit, but I would dare say that there's got to be something in there. I mean, police departments can't all just run around doing whatever they want. There's got to be something in place for that. I mean, I kind of throw it in there. We're not going to police in Norfield the way that things are policed in Burlington. I mean, I kind of look at it the same way as there's a reason why we have so many district attorneys in this state because I think each county is going to look at things much differently, but you're still going to follow the same basic principle and policy. I mean, I think that the attorney general's concern is that especially on an issue like this, which is so important to public trust of law enforcement, that it is important to have consistency statewide with respect to how police will respond in challenging situations. And certainly there are going to be differences in how different departments interact with their communities. But again, on something like this that's an issue of such intense public concern, it is important that citizens understand wherever they interact with police officers in whatever department they're from, there's an expectation of consistency on this. Yeah, I agree with you with that. I think there's a lot that we've heard. I think there's a lot of adjustments that can be made and hopefully they're going to be made going forward, but I just wanted clarity on that. Thank you. Thank you. Coach. Madam Chair, I spent most of the, well a couple hours yesterday in our companion committee government operations and offering testimony and reviewing S-124. Within their draft of that bill, they addressed an issue that Wilde bought up as far as representation on the training council. They are rebalancing the council. It will be 11 to one community representation versus the way it is now. And not that that will automatically fix things as attorney White suggested, but it's a step in the right direction. But I just thought I should share that as we're continuing this discussion about the relationship of oversight. And that's a direct community engagement oversight component in S-124. Great. Thank you. Thank you, coach. Appreciate that. Any other questions for David? No. So David, I think at this time I'm going to actually move to the commissioner because we are already going late and I want to make sure we hear from him. So commissioner Shirling, are you available? I am still with you, Madam Chair. Though I had a loss as to where to begin with the vast array of things I agree with and a few that that I don't to answer one of the representatives questions that was posed to attorney Shirler. I would answer the same way relative to the statewide implementation of policy. We don't have a good handle on what is in the 73 different policies around the state other than for the agencies that are accredited by the commission on the accreditation of law enforcement agencies, which would largely have the same components. And that is one of the reasons we also advocate for a singular statewide policy and bringing you back again to January have advocated for a suite of modernization initiatives that in part is designed to defragment the way services are delivered and information is collected and reported on a statewide basis. So sort of working from the back to front that was one of the things that stood out as needing a response. Candidly, I'm not sure I have a current copy of the bill that it is changing so rapidly that I'm not clear that I have the current version. A couple of observations from listening to testimony over the last hour and a half or so. One is, and again, I wanna set the stage that we're very much on board with making alterations where we differ in our role from everyone else that you've heard from is that our responsibility is to operationalize whatever gets changed into the day-to-day interactions, thousands of them between law enforcement and the public on an ongoing basis around the state. So there is a dramatic difference in the perspective that we're bringing to the table and how we're trying to inform this conversation. It is not at all about stopping progress, especially on some of these key issues. Will DeWyte testified about the need for improving outcomes in mental health. You'll recall that we put forth in our modernization initiative in January and then again in the budget, most recently significant investments in the expansion of field mental health services working directly hand-in-hand with law enforcement and for the record that is something I have been literally begging for for 15 years and it finally has traction. So with that as some additional framing, it gives me pause that you continue to hear from witnesses and others that there is lost trust in law enforcement in Vermont at the end of, and that is partially true but it's represented as wide-scale or wide-ranging large-scale mistrust in the way that Vermont law enforcement operates and I do not believe that is the case. The evidence I would point to as a PBS poll at the end of July that was done where 61% of respondents had either a great deal or quite a lot of confidence in Vermont law enforcement. And another 28% had some confidence. I would bring the total number of folks with confidence of some level to 89% and even if you were to take out the some confidence level, 61% is a landslide in terms of confidence or in an election. So again, not to be dismissive of this moment and the need to make progress but the hyperbolic assertions that you're hearing on an ongoing basis quite frankly continue to baffle me. We are moving swiftly based on partial information and a very complicated landscape and I remain fearful that we're going to end up doing more damage than good. And the reason for that is not because we're trying to handbrake progress but because as you introduce uncertainty and new language into a complicated operating landscape, operationalizing that is very difficult. So we're trying to provide the General Assembly and everyone engaged in this conversation with alternatives and options to help us get to the same place but trying to do it in a way that will create predictability and consistency in outcomes as we get there. So those remain the underlying themes. There's one section that I know is relatively current that I wanted to speak to briefly. It's this some section B5 that's been circulating today around what an officer would know about the subject's conduct as a result of medical condition, mental impairment, et cetera. And I forget which witness testified earlier that there's already a Second Circuit case law on this and I would offer that they're not directly on point. The Second Circuit case law on this indicates that the level of force used by an officer, one of the factors has to be the severity of the crime but there is not a section that relates to what the officer knows about someone's underlying conditions. In part because as I've testified previously, someone can suffer from an altered mental status. And whether you're in the back of an ambulance or you're being a law enforcement officer is handling that or you're in an emergency room, it takes medical tests to figure out why that mental status has been altered. It could be a result of a head injury, pre-existing or a new head injury that's creating intracranial pressure. It could be some kind of electrolyte imbalance. It could be an underlying mental health condition. It could be substance abuse. It could be any one of a number of things. There is no way in the field to figure that out without medical testing. And the underlying case law, this robust amount of guidance that provides the frameworks within which law enforcement operates gives deference to the fact that we can't make that diagnosis in the field and we are responding to stop actions that present risk. So most frequently we're talking in committees about deadly force and that risk being an imminent risk of death or serious bodily injury. But in the other cross-section of force that's used, again, we're executing some kind of lawful action but without a crystal ball or the ability to run tests to indicate what the underlying reason for someone's behavior is. That is just an unreasonable expectation in the field. There is no other way to describe it. We don't have a tool set that can allow us, a crystal ball to figure that out on the fly. So interjecting that into an officer's, into the need to make a decision in the field based on those factors is absolutely impossible. Even if we know someone suffers from an underlying mental illness or a historic substance abuse problem, the behavior that's presented in the moment may or may not have anything to do with that prior knowledge. It's just not a way to create consistent outcomes. It is only going to create confusion and consternation. And I use that as the example, if similar challenges with some of the other new language that is not fully galvanized in case law. And again, this is about creating better outcomes, consistent outcomes. And I think we've provided some ideas on ways to do that. And I agree with many of the other speakers from today and on other occasions that there are things we need to improve on. There are ways to do it in part slowing down the process and engaging more people is important. One of the other notes I had of importance and apologize for rushing, but I know we're short on time. The governor's executive order does give us a date of October 1st to deliver a model policy. I've already started to draft that memo and we have done robust engagement but there is an enormous amount of additional work to be done on that. So we see that as a first draft and something that the community stakeholders and others can react to going forward from October 1st, not a final product. And I anticipate it'll take quite a lot of time to continue to get feedback on that. Similarly, delivering a body-worn camera updated policy in similar fashion. So we're already working hard to try to incorporate as much of the ACLU's national model policy into that version as possible. And then again, use that as a starting point for continued conversation. So I apologize that my testimony is a little bit fragmented but frankly, there's so many things moving on this that it is nearly impossible for me to keep it all straight. Yeah, no, thank you. Martin. A couple of questions. Talking about introducing uncertainty and having to operationalize, we have put in this draft an effective date for the standards of September 1st, 2021 to allow this process to play out. Is that not a sufficient amount of time? It is not a sufficient amount of time representative as I've testified repeatedly. We will not have definitions until the courts weigh in. So we will do our best to create training and consistency around this. And then that will change month after month and year after year for a period of likely, I would project a decade before we have a fully galvanized set of case law around whatever the new standard is. And we will have inconsistent and unreliable results until then. So yeah, I don't want to be too argumentative but I only have to make the point that it's not completely settled law just in looking at recent cases seem to be pushing what the standards are already. So including, well, I'm going to point to one case in particular because it's also kind of in response to what we're after in this new subsection 5B5. And the key language there is of course knows that the officer has to know that the conduct is the result. And I would point to the case of Chamberlain versus City of White Plains 960 F3rd 100 Second Circuit case that that precisely is the type of situation where the officers knew about the conduct being a result of a mental health issue and yet escalated the situation in multiple incorrect manners. So it does happen and I understand it's going to be fairly narrow. Presumably it's going to be quite narrow because of the question of having to know that. So any event, all right, so the other, if you had a comment on the first section or what you've been hearing, I think today as far as the thought is to let your process and the DPS play out report back to the legislature and then, and everybody can decide whether at that point we need to mandate that it goes statewide as opposed to the incentives and disincentives that are in the governor's executive order. So two things, one, I'm not familiar with that particular case out of White Plains, but I would offer that much of the guiding framework for how law enforcement would respond in Vermont would be embedded in a crisis response policy, not in a use of force policy. So what we're remembering, I think attorney Thompson testified to this, frankly, I don't even know which committee last week that how we operate is not embedded in one policy. There are literally dozens of them and they weave together to create the fabric that creates consistent response. And so much of what you're trying to address actually would be in some other parallel guiding document, but at the same time that that court decision and the ones that continue to flow from the fourth amendment in the second circuit and elsewhere do provide that iterative guidance and framing that is how we continue in part how we continue to evolve. So I think it goes to the argument that there is a well-established and constantly evolving community standard that is set by the courts here. On, and I apologize, you had a second point and I've lost it. So there was the White Plains case and then another component. I've lost it too. Again, as I was taking feverish notes to try to testify here, I'm mindful of how it can or could be painted that we're continuing to try to put a handbrake on things that were not responsive. I wanna be really clear. I don't think you can find anyone in Vermont who's gonna tell you that anything other than potentially a criticism of me that I need to slow down in terms of the amount of progress that I'm constantly trying to make relative to the way policing is done in Vermont. So I just wanted to overemphasize the fact that while we're trying to help inform this conversation and pivot some of the focus, we do continue to appreciate the focus on this. There is tremendous energy here. And we are on board to improve the way things are done in Vermont. I just don't want what we continue to say to be misinterpreted. And I know I keep reiterating that, but I think we have a different audience each time we have this conversation. So I think it's important. Thank you. Any else? Well, thank you, commissioner. And I know I do appreciate you reiterating your testimony. And it's certainly important for us to hear. Committee, I realize that we are over time, but I would like to take a few minutes to get Julio Thompson in if folks can stay. Thank you. Would you like me to proceed, Madam Chair? Please, yes, thank you. Hi, good afternoon. My name's Julio Thompson. I'm an assistant attorney general and director of the civil rights unit. And I appreciate a lot of the work that's gone into this in all the committees in the Senate and the house. To me, what I've seen demonstrated over the last few weeks and also when attention was given to this bill in the Senate side is that every time you hear from somebody, the ideas get refined. You hear new perspectives, things that you thought were good ideas. Someone else with a different experience or expertise or history identifies some shortcoming of it. So I think that's a healthy process. The perspective I take from this is that having worked on a number of the use of force policies that are considered models in the country, for example, the Seattle Police Department policy, which was enacted in 2013. That was a case that, that was a suite of policies, five interrelated policies that introduced in police department policies, I believe for the first time, the necessity and proportionality standard that everyone's been talking about this summer. It prompted other agencies like San Francisco agencies in Washington state and now probably a dozen or more cities have adopted very similar policies. The point that I've heard today, I think from everyone, I think I'll share, but I just wanna amplify. The more people you hear talking about these issues, the better the product will be. Although there has been a lot of input from the legislature on the issue of a use of force standard, I will say that compared to other efforts that I personally participated in, in cities like Seattle, Baltimore and Newark, for example, the amount of participation here is only a fraction of the amount of effort that has gone in on those cities for those policies. To give an example of how the input process works there, it isn't just people giving ideas before you draft the policy, but it is circulating among the community and many academics, use of force experts, multiple experts, all sorts of subject matter experts, and them exchanging or proposing numerous red lines and amendments to the policies. And then in the typical process is the draft policy is posted online with several months of a comment period where anyone with an interest can provide written comments. They were public hearings where there's a walkthrough of the latest draft of the bill and opportunities for communities to talk about them. Currently online, for example, Baltimore has 60 policies, 60 draft policies, dealing with all manners of police operations that are within the scope of the consent decree that are available for public comment. And they're gonna be available for several months. And all of those public comments are under the process adopted there. They have to be considered, you have to provide people opportunities to address or explain them, to harmonize them and maybe invite further inquiry. So in Seattle, for example, I personally heard from many more mental health professionals or survivors or representatives than you've heard here by several factors, and so has the city. And that's true for all sorts of groups which have had historical tragic interactions with police departments. And it's also true with respect to subject matter experts. Last week, I thought it was very helpful to hear a training expert, Drew Bloom, who I think offered that perspective, but he's one use of force expert. When these policies are developed in other cities where there's extensive input, they get multiple use of force experts. And some may be surprised or some not surprised that they don't always agree. And so sometimes you have dueling experts who are talking about what's trainable, what's the appropriate force, what is predicted to be the best outcomes. And during that process, there's also ongoing research. So there may be new policies or training that arise in other cities that are brought to the working groups or attention or there are new cases that are brought out and so they bring in a constitutional law professor who can talk about the implications of a new circuit court ruling. So it's a much more involved process. And that with respect to section one, which is similar to a more expanded process, that's what we were really aiming for was that kind of process. It was not a process where you would have token representatives any group that would be silenced, but rather they would have a lot more airtime than they've been given in the legislative process so far in which they're not guaranteed in the executive order. The executive order does not obligate anyone to talk to a particular group. It leads it up to their discretion who those community representatives are. And the executive order also doesn't actually put in a date when the statewide policy has to be adopted. It says October 1st that's presented to the Criminal Justice Training Council but it doesn't say when the council has to do anything. Dave's chair has already addressed the question of whether or what extent the council can mandate that statewide policy. I'd note that this committee itself did a lot of work on the fair and partial policing law which itself created that mandate. I think to ensure that the topics were addressed. And with respect to section one, there are another a couple of other elements that are here that are responsive to the witnesses that have been before the committee. For example, when Boer Yang, the executive director of the Human Rights Commission testified on September 3rd, she was asked did she have any suggestions about the then version? I think it was version 2.4 of this bill. And she said that she would like to see a mandate emerge or that there is a mandated process for reviewing use as a force. The executive order doesn't say anything about that but section one here does, the legislature can dictate or I should say direct, assuming there's agreement through the legislative process and signed by the governor, you can direct which topics can be addressed. And it is vital to have an ongoing obligation to review use as a force. So that was responsive to that request from Boer Yang, which was otherwise not in the latest version of the bill. So if section one is taken out, then her suggestion is not otherwise gonna be effectuated. Related to that, there's for the topics to be addressed in the statewide policy is to identify mechanisms whereby agencies are obligated to enact the process where as part of the use of force review, they incorporate that or they work that into a training regimen. My experience in places all over the country is that one of the most significant ways to reduce poor outcomes for officers and the public alike is for the department to change the culture of not second guessing their fellow officers but having the training professionals look at even a successful outcome and asking could we do better? So Seattle has that mechanism, Los Angeles County has that mechanism. Many agencies have built that in so that even if an officer ends up with a positive outcome, if there's an evidence through the investigation like video, if the officer is making errors that those errors are pointed out to the officer, perhaps not an punitive matter if he's followed policy but to make sure that the officer is making the next encounter safer for Kim or her. That's a really critical component of a lot of these use of force policies. It's not mentioned in the use of the executive order. And so it seems to me to be a fair topic for discussion since it's a critical aspect of a department of raising the standards of professionalism. Just as we expect someone who has a root canal that they need to have performed in Northfield or in Bennington, you would expect that there would be generally accepted processes for how you would encounter that or how it would be handled. And that's true when a police officer encounters an armed suspect or someone who's in crisis or someone who is where there may be something like a robbery in progress. There should be general standards that apply basically everywhere and then you train to the standard. So I think section one, there is value there because I think it creates broader input than the legislative process thus far has provided. And it guarantees at a minimum, certain people will be at the table. I think we would favor broader language to be more inclusive. I think if the committee is a minimal to the idea of like there being a public comment on a draft process like it's done in other cities, I think that would be very positive too. The aim here is to hear more voices and to hear multiple representatives from a given perspective. So in none of those projects will be here just from one expert or one representative on one subject because experts agree and community members can disagree about areas of emphasis or focus. So I do think that there's value there and I don't think that the executive order process as it is provides enough assurance. Now, if there's a mechanism to go forward where something is provided back to the legislature, I think the recommendation would be just that you give enough time for there to be this really extensive input process. The experience in those cities is not just that you end up with a much better product, but the very fact of that collaborative building or that collaborative drafting builds trust and relationships between the people who are most involved and at the table. In none of those cases was it just a top down policy issued by a police department that was just sent out for comments, get back to us Tuesday. Rather, it was much, much more collaborative. And the idea was to get a policy where there's community trust and some of the more recent policies like Camden County, which came out last year as viewed as one of the most progressive in the country. They work with NYU Law School, the ACLU and the Fraternal Order of Police. And they worked on it for months and all of the stakeholders who participated in that were satisfied with it, including the union. So that you didn't have to deal with the potential of conflict with the union such as an unfair labor practice that might arise after the policies enacted. So I'll just stop there and talk about process. I can address areas outside of section one, if you'd like, or if there are questions about section one, I'm happy to address those. Okay, thank you. Let's see, if I had seen any hands. Martin. Yeah, one specific question. Could you comment, Julio, on the concept of including language in the totality of the circumstances adding a should have known standard? If you can just comment on pluses and minuses of doing such a thing? So if you refer me, I mean, I'm looking at a side-by-side and also the whole draft, if you can direct me to the page. Yeah, sure, sure. I'm sorry, I don't have the side-by-side in front of me. It would be on the draft 3.5, page four, lines 15 through 21. Essentially, it means a conduct and decisions of the law enforcement officer leading up to the use of force and all facts known to the law enforcement officer. And then the question is whether, you know, if we added or should have been known by a reasonable law enforcement officer, something along those lines. If you could just comment on that possible change. Sure, I mean, there have been other formulations and case law and policies that really talk about, I've seen different formulations addressing the same issue, but not using the language should have known. I mean, it could be out there because I'm just responding to this in the moment. I haven't researched it. Just part of, it's kind of illustrative of the process I'm talking about. Sometimes you just need to hit the books and look. I have seen formulations where it's all the facts that are known or reasonably available to the officer, for example. Right, and let me give you, let me give you an example of a shooting case. I looked back, a tragic shooting case that I looked at in Portland, Oregon about 10 years ago as part of the deadly force study that I worked on with. I think we looked at about 30 shootings. And this was a case where there were allegations in an individual in a residential neighborhood that was located across the street, I think from a senior residential care complex. And there were allegations that there was a marijuana grow operation in there. And the officers had been doing some surveillance seeing this individual buy grow lights and things like that. And then when they went, they were just going to, they didn't have enough for a warrant, but they went to do what's called a knock and talk. They were gonna knock and ask to talk to the guy. And maybe when they opened the door, they would see evidence or not. I don't know. But the officers reported that when they got to the door, they could smell marijuana burning. And so they decided they were gonna do a warrantless entry to prevent the destruction of evidence. What the officers didn't know at the time is that, actually outside the door, there was also a surveillance camera pointed onto the porch where the officers were lined up. And the officers nonetheless decided they were gonna do a warrantless entry and they opened the door. And what they didn't know was that the suspect was in the kitchen with a mudroom door in between them. And he was holding an SK-47, semi-automatic assault rifle. And he prepared and fired dozens of rounds through the door. The first officer in line was killed immediately. The sergeant who led the operation was injured. They returned fired. They couldn't see the subject because of course there was a door between them. Looking at some tragic, tragic incident, a subject was, I think, struck once, maybe twice, but not killed at the incident. And looking at the overall picture of that, one thing that emerged was that the officers in doing the surveillance never talked to any of the neighbors about whether the suspect had access to guns. And several of the neighbors reported that, oh yeah, he was a big gun collector and was very vocal about saying that if the police ever come for him, he's gonna go out in a rain of gunfire, words to that effect. But the officers never did that intelligence. And so they conducted the raid and they didn't do that. So the question would become when we're talking about shit of nouns, is that something that if the officers in that case returning rifle fire, which killed the first officer, wounded the second, if they should have known that he had a gun and maybe they would have done it differently. In the analysis of the incident, there were all kinds of concerns about how that the incident was handled from top to bottom. But the question is, when you're talking about shit of nouns, how far do you go? That's really the question. Some of the officers who were part of that operation and fired the weapons were not part of the surveillance. So should be part of the neighborhood surveillance. So that's one challenge with it. So I have seen formulations where you're talking about what the officers know or is reasonably available to the officer. So if you're objectively reasonable, you're gonna be looking at the subject's hands. It may not be a defense to say, I didn't look at his hands. Officers are trained, especially in risk assessment to look at the hands. That's where danger comes from. So that should have known, I think can create some ambiguities because looking in retrospect, there may be lots of encounters where some people may argue every police deployment of somebody who might be armed requires a SWAT team because there might be some risk that the person might be armed. And if you come up with superior force, maybe the person won't do it. So I think it can generate some mischief. I think it would be part of this lengthy input. And there might be people who would provide a counterpoint to what I'm saying. So I think it's, again, illustrative of why you need to spend time on these issues. I appreciate it. Thank you. So again, I'm looking at the time and we're already about 40 minutes over and we have to be on the floor at two. So I, but I do really wanna hear your comments on the rest of the bill. So I'm gonna at 20 after I'm gonna, if I have to direct you, I'm sorry, but I do wanna give folks some time to do what they need to do before we get to the floor. Okay. Well, I can just go in order, I think. I think, because once now we're beyond section one. So there are just some simple issues about language that have been brought in here, which again, I think reiterates why that input is useful. For example, I think the Senate version has passed officer definition of deadly force. This version offers a definition of force. But to some extent, at least compared to other police to policies. It's a little vague and I don't know what the committee or the legislature wants to do with that. To illustrate, it says that it's physical coercion. So New Orleans, for example, in its definition of that, an example of force or what it calls physical force is pointing a weapon at someone, drawing and pointing a weapon at someone. That's counted as force, even though there's no contact, even though the trigger is not pulled. I think part of the rationale there is that if you or I did that to somebody on the street, we might be chargeable with a criminal offense, even if we never pulled the trigger. But other agencies, including Seattle, don't include weapons pointing within their definition of force. They treat it differently. They require reporting of it and a different way of assessing it. But they don't include it in their definition of force. Here in statute, I don't know who decides that. You have it as a legislature decided that. So it may come either through the policy process that I've been talking about, which is kind of quasi rulemaking in a way that might address that. Or otherwise, it would be either the common law or a court in the future. So that's an example of things that are not addressed in the new language. And I've heard arguments for many years on both sides about what you call weapons pointing a use of force. And there are distinctions to be made between someone who say a SWAT officer on a parking garage who's covering a door versus somebody who's pointing a weapon at a motorist who refuses to turn over their identification. So that's like one of those areas that I think presents opportunities for that kind of input and debate. That's not addressed in the bill here. I think the, I could talk briefly about this, the point that Chief Pete put up today about the, this is section three on page four about imminent threat. I don't think it creates much confusion. The, I think that the unusual thing about that, usually when you're talking about, or I'm sorry, I'm trying to find the side-by-side for that. Usually when you're talking about the threat, you're talking about the actual thing itself, not the perception of the thing itself, right? So it's an assessment of whether something is threatening or not. And so, imminence and immediacy are, there's countless court cases that really address that. But I don't, I mean, I think that, and I haven't seen the Academy training here on use of force, but I do think that the, I think that the standard here is consistent with the sort of training that I've seen. I mean, you have to understand that the training here, and Drew Blum talked about this a little bit, but it has to be translated in a way that is appropriate for time-pressured decision-making versus like right now, even though it feels like it, what we're doing right now is not time-pressured decision-making. So I didn't find that to be an impediment to useful training. It seems like it's trainable. And so it was not a concern to me. Great, thank you. With respect to prohibited restraints, I noticed that the word may was dropped here. It hasn't been picked up in the testimony that I've heard today, but I just want to address it, to try to work out how it works in practice, because I think it might be construed actually to increase the use of restraints, the technique and rather than to diminish them because right now as striking the word may means that if I put my arm around your windpipe and I apply pressure, it's not prohibited unless I actually restrict your airflow. I think that was, wasn't that Drew Blum's suggestion? It was, it was, and this is why, this is kind of the, and it's too bad he isn't here because he might have a response to that, but let me just lay it out for you to think about. So if I put my arm around your throat and I apply pressure, but you say that you can still breathe that my breathing is not restricted, that technique is not prohibited by that statute. And you may have cases where there may be a dispute where someone survives the encounter and that person alleges that there was enough stretch, there was enough to hinder their breathing and the officer disputes that. And so now it becomes the unlawfulness of the technique rides on whether a jury or judge believes that airflow was actually restricted. But as I read it now, I think one, or I think an attorney mounting a vigorous defense can say it becomes prohibited only when the prevention, preventing or hindering occurs. Not when the technique is used. So I think that is problematic. And I think it narrows the prohibition here beyond what I've seen in other states. I'm not 100% certain on that because again, I've had little time to respond to that amendment, but it raises the question for me about whether, we don't see in Vermont, at least as I know, we see this type of technique being used in the field anyway. But here you seem to narrow the prohibition by saying you actually have to demonstrate the restriction or the prevention of airflow. Related to the issue of, again, the larger policy. So we have about three more minutes. Yeah. Yeah. This policy doesn't address other types of asphyxia. In fact, I would argue more common types of asphyxia. Maybe that's something that would be directed in the policy. For example, a person who's overweight and has a large abdomen, a protruding abdomen, just letting them face down and applying pressure on their back could cause suffocation. It's well known, it's been known for decades. Or the application of hoods or spit masks in certain situations where the person might have been pepper sprayed can also restrict breathing. So that's again, something you would want to see developed in policy. With respect to the reference to self-defense, I found some of the testimony a little confusing. It sounded to me like there was, the question was, if we strike it, then we leave it implied in common law that you can argue self-defense. My question is this, if the committee and the legislature believes that that common law defense is available, then what would be the objection to putting it in statute? One of Vermont's statutes, one VSA 271 says the common law applies unless it's repugnant to the constitution or to state laws. So when you're using terms like prohibited restraint and you are no longer, or through the process, no longer citing availability of self-defense in statute, I think it presents a question that can be argued in a court as to whether that was intended to eliminate or curtail the common law defense. So if the committee is comfortable or the legislature is comfortable with the common law defense, I think Will the White said earlier, just put it in the statute and get the language to make sure it's clear what you want. There's no harm in having clarity in statutes to eliminate a potential ambiguity. And as others have mentioned, using the word prohibited restraint itself, but then permitting it, at least implicitly, could create some ambiguity. And you might end up with a court result that you did not want. I think there is a, the last point I would make is on page eight. I haven't heard anyone comment on this. And it has to do with sub three, which talks about the officer ceasing the use of force or deadly force as soon as the person surrenders or no longer presents an immediate or imminent danger of, so there are two issues there, three really. One is that it's unnecessary because if the person surrenders, you couldn't establish that the use of force was reasonable necessary or proportional. That's one. Two, it sort of creates, it plays mischief with the standard a little bit because it requires that the person actually not pose a threat, rather than apparently not pose a threat. So if the person who's knocked down has a gun to the officer appears like he's no longer a threat, that's not enough. He has to actually not present in a threat, which seems a little higher than the standard that he won. And the final issue is that it seems to contradict the rule about a fleeing felon that you have here where it says, unless there's an imminent danger, you have to seize deadly force. But in the bill from the Senate, and that's kept here, officers are not only allowed to respond to an imminent threat, but also to cases where you have someone who may be fleeing the officer and not presenting an imminent threat, but whom you need to apprehend because there are reasons to believe that if you don't do that, they will cause future harm. That's called the fleeing felon rule. It's separate from imminent immediate self-defense or immediate self-defense of another person. So it could be someone who's with a gun or explosive device who's running towards a getaway car and you have good reason to believe that if they get in that car, maybe minutes later, they're gonna cause harm to people, but they're not causing an immediate threat to you or to the driver of the car. That's already in the bill, but this would suggest that if there isn't an imminent risk, you have to stop deadly force. In other words, the first shot would be lawful under one section, your fleeing felon rule, but unlawful under this section, which seems confusing. So that's something I wanted to point out to the committee's attention. There seems to have created a contradiction that did not exist in the Senate version. Okay, thank you. Yeah, thanks, appreciate it. Okay, we do need to go again, because I wanna get folks to, we've gone over and wanna get folks time. Julio certainly, let's see, we're gonna come back tomorrow. I don't know if you wanted to testify more tomorrow or if there's anything you want to send in writing, but I do appreciate your input. Okay, so folks, a few things. Our RFA bill is back from the Senate. I'll send out an email, really very few changes, and I hope that we can concur any opposition. There was support from all the folks we heard from, so I'll send that out to you. So we could take that up tomorrow. And I was wondering if folks can start tomorrow at 1130. We don't have time on Friday because the floor has moved. So, does that work for folks? I'm seeing some nods. 1130, when did you say tomorrow? Yeah, because we won't be on Friday. What time is floor on Friday? 10. Okay. I guess I have a question. If we need to vote something out this week, one way or another, do we put on for tomorrow a discussion? I assume a big part of what we're gonna do tomorrow's discussion should we warn a possible vote for tomorrow and then see if there's a... It has been. ...on Friday? Yeah, no, it's well, our schedule does say possible vote, committee discussion and possible vote. Yeah. Yeah, I've asked if we could get a morning like an 830 or something. And right now it doesn't seem like it, but I can ask Catherine again. So, anyway, hopefully we'll have, we'll see how we get tomorrow. Hopefully with the extra time we'll have time to have discussion and yeah. So, I know the Senate is also, sounds like they may be closing down. Wants us to move on this as well. So, all right, great. Well, again, thank you. Laurie just had a note up there, something about 830 on Friday. What was that? Well, I know that's what I stopped. But then I, yeah, let me speak to Catherine again because I thought that was the case, but I think also there's some meetings that are going on. So, let me check back with Catherine. And yeah, because actually my latest correspondence was Catherine was asked, she was asking if we could meet tomorrow earlier and instead of Friday. Right, oh, okay. Any idea what's on the floor today? No. Okay. I'll look anyway, just some decisions to make for me. Right, right. Okay, well, thank you. Thank you committee or witnesses, Laurie and everybody again for hanging in there. And we'll see you soon. All right. Thanks.