 Okay. Good morning. This is Senate Judiciary Tuesday, March 8th, 2022. And we are meeting hybrid for the first time. Some of us are remote and some of us are in person. At least for the foreseeable future, this is the way we'll operate and hopefully it'll work. So please, those of you who are watching, if we make mistakes or we go blank, let us know. We'll try to fix it. This morning, our first bill is S-4 and we're not taking up the waiting period bill. This is a strike-all amendment to respond to the Governor's veto of S-30. And Eric is going to do a quick walk-through of the bill. I think we're familiar with, excuse me, a quick walk-through of the strike-all. I used to have this here, Payton. A paper bill. Great. How nice. Oh, you have a paper bill? Yeah. Brave New World. Feels great. All right. Eric, if you mind sharing the screen with a quick walk-through. I think we're all familiar with the bill. Yes. Thank you, Senator Sears. And good morning, everyone. This is Eric Fitzpatrick with the Office of Legislative Counsel here to do a quick walk-through, as Senator Sears said, the proposed committee strike-all amendment to S-4. So I will pull up my screen real quick so we can take a look at the language, although as Senator Sears said, it all should seem quite familiar to the committee having dealt with these topics quite a bit in the context of S-30, the previous firearms bill that the committee was looking at earlier in the session. So let me pull up the text. And first thing I want to point out, actually, is something that Senator Sears alluded to. It's just something that you may want to change. It occurred to me. And then, Senator Sears, you mentioned it as well. You'll see this is proposed as a strike-all amendment to S-4. And S-4 was a waiting period bill. So if you look at line 3, the title of S-4 is an act relating to a 48-hour waiting period for firearms transfers. Now, this proposed strike-all amendment does not deal with the waiting period. So it may be that you want to add something to change the title. In other words, it's a strike-all amendment. It's pretty common, as I'm sure the committee knows. You're familiar with it. It would be language potentially at the end of this amendment that would say, and that when so amended, the title of the bill will be changed to an act relating to firearms procedures or something of that nature, which I think was with the title of S-30 once. So just a thought to consider, since if it continues to have this title, an act relating to a 48-hour waiting period, that wouldn't be an accurate reflection of what's actually in the contents of the bill. Agreed. Senator Baruch, did you have a comment on that? Yeah, I was talking with the chair about that before. I think using the title from S-30 makes good sense. Great. That sounds good. That's what, and that's an easy amendment. I'll just tack it on that. Usually that title change language appears at the very end of the amendment, and it's just a line or two similar to what I indicated. So having said that about the title, the substance itself, as Senator Sears said, is very familiar to the committee. This is what you looked at in S-30. The section one has to do with the prohibition of firearms, possession of firearms in hospital buildings. Remember, that section creates a $250 criminal fine. That's in line 13 for this. That's the same as it was in S-30. In fact, this section, there's only stepping back for a moment to mention the big picture. There's only one difference in this amendment as opposed to the language that passed in S-30 and was vetoed by the governor. So there's only one difference, and it's in the provision related to the default proceed, which we'll get to in a moment. But there's no differences in this section. The possession of firearms in hospital buildings language is exactly the same word for word as it was in S-30. And as you mentioned, it's a prohibition with a $250 fine. There's some exceptions, and I'm going to go fairly quickly, Senator Sears, unless you want me to line by line it, but since you've seen it. No, I'm going ahead. Unless any member of the committee, because this is our first meeting hybrid, has a question or the witness has a question, I'm happy to shout it out, because we may not be able to see your hand or whatever. Yes, please do, and I can't see you as well. So feel free to interrupt me anytime. So yeah, the prohibition on firearms possession, standard definitions of fireman hospital, and as I mentioned, it's a $250 criminal fine. We now get to section two, which is the background check provision, and this is the default proceed. Remember, I'm just skipping right down to where the new language is. This is the general requirement, if you recall, that a background check be conducted on someone when a firearm is purchased. Now there's some exceptions in existing law for family members, law enforcement, that sort of thing, but generally speaking, the background check is required and it's conducted by an FFL, a federally licensed firearms dealer. Even for private sales, it's the FFL who conducts the check by calling the or communicating electronically with the national incident criminal background check system. Now remember, what this address is, is the default proceed, and that is sometimes popularly known as the Charleston loophole from a legal perspective. I refer to it as the default proceed. And what that means is that the background check, when it's conducted by the firearms dealer, there's a provision in federal law that permits the background, the firearm to be transferred. If three business days have passed after the background check was initiated by the dealer, and there has not yet been an answer from NICS, from the background check system. So generally speaking, it's required that the NICS background check provide the dealer with a positive result. When I say positive, I mean that the person is not prohibited from possessing a firearm. So they've checked their databases and based on any disqualifying factors that might exist that would prevent the person from legally possessing a firearm, they conclude that none of those disqualifying factors exist. They let the firearms dealer know, and the firearm can be transferred. The transfer can be completed. However, sometimes as the committee remembers, their NICS is unable to make a definitive answer right away. And it takes further investigation on their part to determine whether or not one of these disqualifying factors exists. Under this federal default proceed provision, though, if they can't get an answer within three business days, even if the answer is not provided at all during that time, the dealer can still go ahead and transfer the firearm to the proposed purchaser. Now, the dealer is not required to, but they can. They're permitted to. So S-30, as it passed the legislature, removed that option. So the language in S-30 was that the firearm transfer could not occur, remember, until NICS provided the dealer with a positive result that the person was not prohibited from possessing a firearm. So the three-day default proceed provision wouldn't exist anymore. What would happen would be until NICS let the dealer know that the person was not prohibited. In other words, that the FBI had completed their background check and come to the conclusion that the person could lawfully possess a firearm. Not until that's happened would the transfer be able to proceed. The proposal that you're looking at now in S-4, the strike all amendment to S-4, is different than that. Sorry, was there a question that I didn't quite hear? Nope. Okay, okay. Great. So yeah, so the proposal here is different in that you'll see lines 15 through 17. Essentially, this increases the default proceed time period from three business days to seven business days. So if the way the process would work would be, you'll see that the licensed dealer has to, generally speaking, the transfer can happen until the licensed dealer gets this unique identification number from NICS and that unique identification number means that the person is not prohibited and the transfer can proceed. Eric, I do have a question about the current law would be three business days, is that correct? Exactly. And what is a business day? So a business day is Monday through Friday, is my reading of it. So Saturdays and Sundays would not be included. What if there's a holiday like President's Day? Generally speaking, the 21st of February. Right. Generally speaking, I believe it would be federal holidays in this case. But yes, holidays would also not be counted because they're closed for business days. I don't want to screw, I don't want to mess this up. But just for accuracy purposes, please consider whether or not we should use seven federal business days or some other things so that we don't get into an argument about what is a business day. I can remember doing away with business days and in other judiciary areas. And I believe Senator Benning made a great poem about it and read that on the floor. And I think it's one of those things I'll always remember. And so I only flagged that. I'm not trying to mess this up or do anything like that. I just flagged that as a concern. If I might, Mr. Chair, I think the federal government is using business days and we're just adopting their language. Okay. Yes, that's what I was going to say as well as Senator Baruch. That in the federal statute, it uses that term business days. So I think you'd be consistent in tracking the federal language by using that phrase here. But it's a good point. And I remember that the poem on the Senate floor as well with when the day is a day, Bill. Absolutely. I'm glad I'll be remembered for something. We'll put a little plaque in the Senate Judiciary Committee room, Joe. So yes, that's really it for this section. And this, as I mentioned, this is the only difference between the language that passed the legislature in S30 and the amendment that you see before you now to S4. It's the change from S30 providing that the firearms sale or transaction transfer could not proceed until there was a positive result from next, changing that to here, permitting the transfer to proceed after seven business days if there has not yet been an answer from NICS. So again, it'd be five weekdays as it were Monday through Friday plus business days not being counted. So for example, it could be a Monday through Friday. You don't count Saturday, Sunday, two more business days Monday, Tuesday, the following week. So it would work that way. But after that period of time, after seven business days had elapsed, again, you'll see it's similar to the federal law. Look at sort of line 16 through 17, then the transfer may proceed, doesn't say shall. So it's not required that the transfer be made, but it's permissive. So after that seven business days has expired, then the dealer has the option to complete the transfer. May I ask a question about that? Is it the dealer then that makes the decision about whether to go ahead or not? Yes, it's discretionary with the dealer. Okay. Any other questions about this section? All right, if you could proceed through and the rest of the bill is exactly what we voted on and passed and that's 30. Yes, exactly right, Senator Sears. No changes to the rest. Remember, this section three has to do with the ERPO provision. This is the extreme risk protection order piece that allows health care providers to provide notice to law enforcement officers when the provider believes in good faith that the disclosure of that information is necessary to prevent or lessen serious or imminent threat to the health or safety of a person or the public. Remember, the goal here is to and there's it's quite, quite arguable that this is already permitted under HIPAA, the federal health privacy law. But there was a concern among some health care providers that they would not, they would be prevented and prohibited by HIPAA from notifying a law enforcement officer when someone presented an extreme risk with respect to a firearm. And in order to to address that concern, this language explicitly permits that disclosure to be made. And by tracking the HIPAA language, it makes clear that a health care provider could disclose that and that HIPAA would not be violated. So that's the the purpose and result here. That by the way is S5, which I introduced a couple of years ago and I'm glad to see it a part of this bill. I worked with our local health care emergency room docs on this bill on this particular section and I know that it may be already permissive, but there were great concerns about it. And there was an individual that the Bennington Chief of Police and the emergency room doc got to give up firearms voluntarily, but it could have been a very dangerous situation and this just makes clear. That's right. It just makes it explicit and clear so that they can just make the disclosure without being concerned that they might be violating HIPAA. All right. So moving on, this is a section four is an annual reporting requirement that to do with the ERPO orders, the Extremers Protection Orders requires the court administrator to report to the Judiciary Committees on the number of ERPO petitions that were filed, the number of orders issued, some geographical data relating to the petitions and whether or not the order was renewed or terminated. So it's just some statistics and information about the use of ERPOs for the legislature to consider. Section five, this is the provision related to large capacity ammunition feeding devices. You remember, generally prohibited by the legislature a few years ago. However, there were some exceptions included in that general prohibition on the high capacity magazines and one of those exceptions had to do with these magazines being transported into Vermont for use in organized shooting competitions. But that language sunset it a couple of years back and so this basically just reinstates that option so that it would not be a violation of the general prohibition on high capacity magazines if the magazine is transported into Vermont by a resident of another state for the exclusive purpose abuse in an organized shooting competition. And remember the language added here to clarify that the shooting competition is an organized one. It makes clear that it has to be sponsored by an entity registered with the secretary of state. So that essentially provides some organizational legitimacy to the competition going on. But again, exactly the same as what was passed in S-30. So that going forward it reenacts that exception so that high capacity magazines could be brought in for use in those shooting competitions. Lastly, or I think lastly, as section six emergency relief, these are the RFAs, the emergency relief from abuse order section. And remember it provides that when an emergency relief from abuse order is issued, there's a list of current, this is current law, there's a list of what prohibitions and restrictions on the defendant can be included in the relief from abuse order. And this section adds to that list some division EOC, top of page nine, a relinquishment order so that the defendant who after the court has issued a relief from abuse order directing the defendant to essentially stay away from the plaintiff, not abuse the plaintiff any further and any other conditions that the court imposes will also impose a condition for immediate relinquishment of any firearms that are in the defendant's possession ownership or control and to refrain from acquiring any while the order is in effect. Now remember this order is in effect for 14 days because it's a temporary emergency order and after that the court holds a hearing to determine whether a final order should be issued. At that time the court could, if it does issue the final order, could include a prohibition on possessing firearms for the length of the final order as well. But this emergency order only lasts for 14 days and the prohibition on possessing firearms also only lasts for 14 days in the emergency order. So if the final order is never issued then the emergency order expires and the defendant can possess and acquire firearms after that assuming the final order is not issued. I believe it, Eric, on this section I believe it was the testimony of Judge Zone that some judges do this already and others don't and so the effort here is to have a geographic unity within the judiciary by explicitly saying that they can but it's already being done in several jurisdictions. Is that correct? Yes, that's exactly right. Okay, because I've been had some criticism that we didn't get a lot of testimony on it but I felt that if it's already being done then codifying it is not necessarily changing practice just put it that way. Yeah, I think that's exactly what Judge Zone testified to. Thank you. Are there any other questions? Oh okay, and then you're going to add a section eight or a section... Yep, so language just saying that you have the title. All right, are there any other questions about the draft from members of the committee before we hear from Jay Johnson, Governor's Legal Counsel? All right, Jay, welcome to Senate Judiciary. Should I pull the language? Yeah, could you take it down, Eric? Absolutely, yep. All right, good morning. Thank you. Good morning. Thank you, Senator Sears. And good morning committee members. Thank you for inviting me here today. I guess like everyone else has said, feel free to interrupt but my remarks will be very brief. For the record, I'm Jay Pershing Johnson, Governor Scott's Legal Counsel. I've reviewed this most recent draft of S4 and thank you, Eric, for the walkthrough. Like I said, my remarks are brief. The Governor indicated his willingness to agree to seven business days and he also indicated his willingness to accept the rest of the provisions of S30 as is. So I think that I want to thank you all for this draft, which accepts the Governor's path forward for this compromise. If you have any questions for me, I'm happy to answer them. Anybody have questions for Jay? Thank you very much. Appreciate it. It was brief, yes. I do want to thank you for your work on this. Welcome. In order to transparency, Jay and I had some private discussions about this draft and I feel that it is a compromise, although we would prefer what we passed but this is part of the process here. So I appreciate the Governor's willingness and there are other parts of the bill are extremely important in my opinion. So thank you. Thank you. Other questions for Jay or comments? Thanks, Jay. You're welcome to stick around if you'd like. Okay, thank you. No. Is there a motion? Let's put it that way. Let's start with that. Senator Baruch. Yeah, I thank Jay and the Governor as well. I thought the Governor's position was very straightforward. It wasn't a position that I was initially in line with but after thinking it over and talking it over with the Chair, it seemed like it was best to accept the hand that had been offered and so that's what this draft attempts to do. So with that said, Mr. Chair, I would move that S4 be voted on favorably as amended. I think we first have to vote on the amendment. So the motion is to amend S4 as seen in draft 2.1 with the addition of language that makes clear that the title is changed. And Eric, would that be draft 2.2 or 3.2 or 1 or whatever? Yes, 3.1. Okay, so we'd be voting on draft 3.1. Senator White. Oh, I will say that you know that I didn't that I don't like the hospital part of it even today. I don't like that because I think it's unnecessary but I will be voting for the bill. Thank you. Senator Nicar or Senator Benning, any comments before we vote? I just want to, I guess it's just, it's understood that the on page 9, page 9 and 9 with regard to E, that the order is automatically for 14 days. We don't need to mention that. Is that correct? That's right, Senator Nicar. That's covered elsewhere in that section. It's very clear that it's last for 14 days only. And then I did understand your state that it expires unless it has been reviewed. Exactly. Okay, thank you. So if you're looking for comment, Senator Sears, basically hold my nose and vote for the amendment that I'm still against the bill in total. Nice. All right. Just received a notice. My internet connection is unstable, but I will we're ready to vote. Peggy, could you please call the roll on the amendment? Senator Benning. Yes. Senator Necta. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. It's unanimous to amend the bill as proposed in draft 3.1. Senator Baruth. And now I would move that the bill be voted out favorably by the committee. Right. Senator Baruth has moved that we vote favorably to recommend to the Senate they approve S4 as amended in draft 3.1. Any further discussion? Well, Senator Sears, I would just like to put on the record why I'll be voting no. It was against the original section on hospital buildings because I do believe that unlawful trespass is something that currently covers the situation. Generally speaking, I don't like to approve additional legislation. I am fine with the compromise that has been made with respect to the waiting period. I am most uncomfortable if you will with the provision. So let me back up a little bit. I remain somewhat perplexed and uncomfortable with a provision that would allow another out of state resident to bring a high capacity magazine into the state while we deny our own citizens the ability to possess the same. And I recognize that this is an attempted compromise, but it leaves me very uncomfortable that remanders will be treated differently than those from out of state. Finally, the most uncomfortable provision for me. I know that Judge Zone told us that some judges are actually doing this anyway, but the idea that due process, and by due process, I mean the ability to have someone who owns a gun in front of a judge making an explanation. That is denied to an individual if we pass this language that enables the court to remove someone's property without that person being given the opportunity at that moment in time to have an explanation that the judge can consider. I think it's a precedent that we are establishing that I fear for the future may be a stepping stone in other cases. And so for all of those reasons, I'm choosing to vote against the bill. I just wanted to be clear on the record as to why that was happening. I appreciate that, Senator Benning, and I totally understand. And frankly, you and I are the same opinion on the magazine ban. It was not something that I ever supported, but it is the law and this does allow those shooting competitions to continue to occur. Regarding the section on the RFAs, I do have concerns, but listening to Judge Zone and also knowing factually that there are the largest number of deaths occurring from firearms in Vermont is suicide. And the second is domestic violence. And so I'm going to err on the side of caution here and support that section of the bill, even though I do share some concerns about the due process, but we know what we know. And just as we tried to follow the science through the COVID situation, I think we need to follow the statistics and the science in terms of what are Vermont's firearm problems. So I had basically, I think, decided to support both of those sections because of that. But I don't disagree about magazines. It is what it is, and it's been approved by the legislature signed by the governor. And it was a bill that had my name on it, which I will never forget when at some point when I leave, they may say, well, you introduced that bill. I'd say I didn't, I might have pushed the wheelbarrow, but I didn't finish it. So any other comments before we vote on the final? All right. Peggy, if you please call the roll. Senator Benning. No. Senator Nita. Yes. Senator White. Yes. Senator Baruth. Yes. Senator Sears. Yes. Senator Baruth, would you be willing to report this? You could probably report from last time and just change a few words. Yeah, it'll be a short report, I'll tell you. Okay. Well, our next scheduled is S163, and that's at 10 a.m., so why don't we take a break until then? Eric, yeah. Just a quick, Peggy, just I'll, I will redraft that with the title change at the end of the bill. And Peggy, I'll send that to either this morning or early this afternoon. After you can put it through editing first though, right? Yeah, but the rest of it has already been edited actually, so it shouldn't take off. Okay. Thanks. Did you have a comment? Oh, no, that was just a wave to say thank you, and I will see you all soon. Thank you.