 Okay, great. Good afternoon and welcome to Vermont house to destroy committee. We are continuing our discussion on s 119. And unfortunately, we don't have much time today because we are on the floor at two. I know our agenda says 130, but we'll definitely have a hard stop at 140 so folks can can get to the floor. We are meeting tomorrow though. So if we don't get to everybody today, then we can certainly finish tomorrow. So I'm going to go in a little bit different order than what's posted I'd like to start with the state's attorneys, followed by a CLU, followed by the Attorney General, and then, and then DPS. And the League of Cities and Towns opted not to testify but did send quite a bit of written testimony that has been posted so I encourage folks to please, please look at that. So with that, James Pepper, welcome. So, James Pepper with the Department of State's attorneys and chairs, just as everyone's aware I do have one of our Washington County State's attorney with me, Rory Tebow he has some extensive experience in reviewing police use of force, police including investigations and I think he might have some helpful testimony with respect to this S 119 amendment, but I'm going to start out and then I'll kick it over to Rory and I'll try and be brief. I really thank the committee for taking up this bill. I especially want to thank the witnesses and other advocates who've been working for years, often uncompensated in their spare time to help inform this conversation, help inform the legislature and all government agencies. And just as part of my intro I just feel the need to kind of bear it to repeat some of my prior testimony that we live in a social system that has racial inequality and racial prejudice built into its foundation. We've been immune from this, we've all seen the data on traffic stops, incarceration rates, health care outcomes, including COVID deaths, differences in average wealth and home ownership, unemployment, unemployment, school suspension and expulsion rates, and even political representation. And with respect to dismantling this kind of systemic racism, police use of force is a good place to start. It's where the rubber meets the road when you think about some of the stories we've seen unfold across the country and in this state. Of course, public confidence and law enforcement is crucial and foundational to community based policing models. The goal of this bill seems to me to be building public confidence in the system. We are in complete agreement with this goal, though the department does have some concerns with the approach that the amendment takes. Primarily, the amendment that we're looking at to S2 19 patches together some bits and pieces of use of force policies from other jurisdictions. To create what I would consider the most restrictive statutory framework in the country, irrespective of the merit of this framework from a practical standpoint. It means that Vermont will not be able to benefit from any of the case law that's being developed in other in those jurisdictions based on those policies. So why does that matter. Fundamentally, the words on the page are merely directive until the courts start determining what they mean and start giving them context. For instance, you know what legal lines are drawn around the feasibility of using alternatives to deadly force. Does it mean that other procedures have been tried and failed that other procedures are unlikely to succeed it would be or would it would be impractical to carry out other procedures. The term reasonableness is tied to the totality of the circumstances of what was known or should have been known to the officer at the time. What exactly does this should have known cover things that the officer could have learned easily things that were taught at the academy. What about mistakes of essential fact. An important piece for us is is how to implicit biases, which operate on a subconscious level play into a reasonableness determination. Is it reasonable for white officers to overestimate the age or the aggressiveness of black youth. There's certainly empirical evidence to show that that's a common occurrence should a prosecutor be factoring this into his or her reasonableness determination when when trying to figure out a charging situation. How much is a seriousness of a crime matter if the ultimate need to use deadly forces justified. The demand and orders from superior officers play into the reasonableness of an offer officer's action. Does the requirement of de escalation, which often involves retreating and calling for backup conflict with the no retreat provision. And I only bring up this list, because these are all questions that will have to be tested through legit litigation. And just to reiterate the point that one of the benefits of not being the first in the country on this kind of policy is that we can learn from the other jurisdictions. What these concepts mean how to and how to consistently train our officers on de escalation intervention and proportionality. I'm reviewing a lot of the testimony on s 219 in this amendment. I heard Rob Appel confused about whether the type of crime should be considered as part of the totality of the circumstances or the reasonableness standard. I've heard Joe Benning a 35 year defense attorney unclear about what affirmative defenses would would be available under these standards. And I think that our own state's attorneys disagree about, for instance, whether under this bill they have to charge every use of a prohibited restraint, or every use of force and let juries decide whether the action the officer's actions were reasonable, necessary and proportional. This is a complicated piece of legislation, almost overnight. It will permanently alter, not the way that our police departments are managed or supervised. But it will attach criminal penalties when an officer in a split split second decision. You know, makes the wrong choice. And because it takes effect on passage, it does not offer a lot of opportunity for law enforcement to retrain to these standards. And I think, you know, you've heard from Chief Pete, you've heard from other law enforcement that they are fully supportive of these principles. I think they're making a good faith claim that they need some time to figure out how to implement them, how to bring them in, bring their policies to be consistent with them and how to retrain their officers on how to follow this modality. I've heard advocates, I mean, at least the racial disparities panel, you know, they put together a kind of comprehensive recommendations on how to start addressing systemic racism, and how to change really the culture of policing in Vermont. And I know that that group has expressed some concerns that and frustration that this issue seems to be taking priority over those recommendations. So those are just some high level issues. I'm not going deep into the substance of the bill. I'd like to turn it over to Rory. As I mentioned, a number of police involved shooting reviews. And I think he might be able to talk about how this standard might change some of the prosecutorial decisions in Vermont. Okay, thank you. Appreciate your testimony before we turn to Rory, I do see that Nader has his hand up. Thank you, James. I just have a quick question about. You had mentioned that we won't be able to utilize case law that's developed in other districts I was wondering if you could just briefly expand on that and why exactly we won't be able to use case law from other districts or states. Julio might be a good person to talk about this, but if we have a different standard, you know, if we if we adopted the California standard just wholesale. There's there are now I think I believe two cases that are testing what necessary means when we put a statutory overlay on what that means, then the court that will not be persuasive authority anymore for what necessary would mean in our jurisdiction. Any other questions before we move to worry not seeing ends. Martin, go ahead. Yeah, I guess I did have a couple of questions. And point of fact. Yeah. I think together this amendment, certainly other jurisdictions policies were important but but just as important were lots of different cases circuit court cases primarily in the Supreme Court primary cases. And really, none of the things that are in this bill can't be found in a circuit court case. There's cherry picking that is involved presumably if your arguments are in front of a court in front of as far as whether the use of force was justified or not there's cherry picking already among the circuits and among the various cases. And I'll be frank I cherry picked I cherry picked to find the ones that I thought were, in fact, more restrictive but but they are in in current case law. And I can, I'm not going to go through them all right now but you know, so that's one thing just as a, just a response and I feel I need to respond now before we move on past that and I guess a couple questions though is you mentioned as far as and maybe this is one for Rory because he's going to get into this as far as how this would take the discretion away from states attorneys and, and I don't see that but I would certainly like to understand as far as having to charge every use of force and to the jury. In no way do do I see this taking away states attorneys discretion on when to charge it certainly provides some standards that they can look at so if Rory is going to address that further but the one other question criminal penalties when the offer makes the wrong choice isn't that what qualified immunity is supposed to address. So, qualified immunity is a civil concept about recovering civil damages. And so, yes, it is helpful, but we're, you know, in the criminal realm, we don't have to deal with qualified immunity, when we come to kind of police acting outside of the scope of their duties. So does the state's attorney have the discretion then does it go into the area of discretion and whether if the officer has made a wrong choice whether that is something that still falls within justified. You know this would really be presumably just in the deadly force issues this doesn't seem to have obvious crimes for excessive use of force maybe there are some again deferred worry on that. But isn't that where the charging decisions come in for the state's attorney and whether it was just a wrong choice that was otherwise, you know reasonable. I mean it turns on that question of whether that wrong choice was reasonable. And then it brings into some of my other concerns about what do we mean by reasonable and what what can be included and what can't in the totality of circumstances analysis. But again, I would, yeah, I would probably want to defer to, you know, Rory who's had a decent amount of experience in this field. So how much of your concerns are addressed if we push off the effective date to sometime in 2021 to give the opportunity for developing policy and such. That certainly we I mean it allows for the more input allows for law enforcement to come with kind of their policies and see where maybe there's a disagreement or their policies fall short of what what you're looking for so I think that that would be a helpful. A helpful amendment to the bill, but I, you know, I think that's certainly something that you all should consider. I mean, it does address some of my concerns but it, you know, I appreciate thanks pepper. Yep. Okay, great. Thank you. I'm not seeing any other hands. Okay, great. Thank you so much. Rory welcome. Good afternoon. Thank you very much for having me. First I'll start by saying I really do appreciate the House Judiciary's leadership on trying to forge a new standard which I think is something that many people within Vermont want and feel is overdue perhaps especially given the increase in law enforcement or officer involved shootings in the past decade in particular. And that said it is no easy task to try to adopt a new standard and I'm sympathetic to needing to look to other jurisdictions to cherry pick things that are building a coherent policy that reflects Vermont values. So as a baseline I agree with with James that the California standard is an excellent starting point. What I would add though, is that it needs to likely be part of other reforms that are coming and I know this committee's jurisdiction who intersects with government operations with some other efforts within the reform of law enforcement. A few things that I would suggest in terms of being comprehensive I'd agree with pepper that deferring an effective date would be helpful, if for no other reason to get a better understanding of how California is dealing with this as a practitioner. It's important to me and I would certainly want to hear from or have some opportunity to discuss how the change in policy has been dealt with in California both from an assessment of charge standpoint and also from a implementation and training standpoint for actual officers. I do feel that many of the principles espoused in the current draft are already in effect, whether we call it necessity or anything else the use of deadly force is often the, I think in almost every case is the last resort of an officer so no matter how much the standard is tweaked whether we use the words necessary adopt a strict California standard. I'm not confident that this is radically going to alter the landscape of when a prosecutor decides to charge to to the point raised about whether we charge or not, whether presented as an affirmative defense or a regular defense or not either just as something that's embedded in statute. To the extent that impacts a decision. Probably what ways on whether you know what the public confidence in the prosecutors decision is. If there's a default that we should charge and allow a jury or someone else to sort it out or a factor sort it out then that may result in a lot of litigation that ultimately goes nowhere. I think the common practice and I can speak for myself on this is we do as prosecutors whether we deal with a simple assault or a homicide, take a look at what the defenses are what are the strengths and merit of the case so if there's a clear self defense threshold or some other defense that may preclude charging we weigh against that I would use an example recently. In Windsor County there was a shooting involving way persons not an officer. The Windsor County State's attorney declined to prosecute based upon finding that the person who shot the other individual was doing so in a valid claim of self defense so that never went before fact finder that was a process entirely done based upon the case review witness statements by by the state's attorney. So, I do believe that the addition of some factors that should be considered the quality of the circumstance is helpful, and many of those factors the same that I have applied. As a matter of background, I've engaged in state of Vermont and three different assessments of use of force one as assistant attorney general working for Attorney General Donovan back in 2017 that involved an incident that occurred in Rutland County. And unfortunately, I've also had to review to law enforcement shootings that have taken place in the city of Montpelier during my tenure as state's attorney, which again underscoring the need for and the public attention to this matter. Those incidents have heavily traumatized the community of Montpelier, and it is not, it's not lost in anyone, including in my office that in the past four years there have been three deadly shootings in the city of Montpelier, two of which were at the hands of law enforcement. And the ultimate conclusion was that those officers acted in accord with the existing use of force policy and I would add, I did take a look at the language here I don't think that the assessment would change and either of those cases based upon the proposed language. That doesn't take away at all or solve the issue that there are people who individuals love who were taken away on the most unfortunate circumstances. The critical part of any policy adopted is to make sure that it's functional, workable and that it has public confidence. Law enforcement shootings are unlike any other event in terms of their ability to degrade confidence and trust in law enforcement, it can take someone who should be ostensibly viewed as helping and put them in the position of someone who is to be feared that is especially acute for vulnerable or historically marginalized populations. I just honestly can't imagine how some people have to feel when they see law enforcement showing up. So, I've probably done enough talking and I'm happy to answer questions in terms of a practitioner of how I see this working but the hallmark I would leave you with is a comprehensive approach would be appropriate. I know that California who a lot of looking to for modeling this does have a specific statute for law enforcement homicide. That may be something that the legislature wants to consider along with other along with the codification of specific statutes that deal with police brutality since oftentimes pigeonholing these into our simple assault or aggravated assault. Statutes that exist is not easy given the nexus to line of duty and the somewhat different standards that apply to law enforcement conduct then conduct of a lay person. So I view this in my standpoint of when we look at complaints. Fortunately, there are few in any given year there are a few law enforcement shootings however there's a much greater number of allegations of police brutality or use of excessive force in the state. So dealing with those issues, I think is equally as important as those that result in death, certainly serious bodily harm or harm to individuals does just as much impact their lives and degree of confidence in law enforcement in the state. So, with that, I'm happy to answer any questions. Great. Thank you. Thank you very much appreciate your, your testimony, not seeing any hands yet but I'll give up there we go. Okay, Tom and then Martin. Thank you, Rory. I just have one question. You were talking about the, the two police shootings with fatality and in Montpelier. And, and the way I understand it is, is your, your office looked at the facts and deem that everything was done according to policy that's with a question mark. Yeah, I should probably be careful and how to articulate that so there's to hold whole reviews take place. The law enforcement departments themselves will look at, you know, policy of internal policies and goals of the steps being taken we look at strictly from a standpoint of whether that results, or there is a basis for criminal liability. So, for example, the, the, you know, I'm trying to think back to the January of 2018 shooting I believe there was, you know, VSP did their own internal review and definitely, you know, assessed the use of in deployment of where personnel were what weapons systems were used. And I think that was consistent with their policy and I could certainly see circumstances where there may be an administrative violation of how an investigation should be done or how, how things should be done in that context of, you know, dealing with a potential active shooter situation vis-a-vis those policy deficiencies may not have impacted the ultimate outcome of whether to charge or not to charge. So, so with the procedures in place, they went through, they went through all the procedures, and I think you said if, if this new language was in, was in place that did you say that the outcome would have been the same. That's my assessment I don't think even with more stringent language proposed that would criminal charges would have resulted. Right. So, what would be the difference in procedure though with the police department yourself there's there's one procedure, and I guess what with language like this and statue, I guess, potentially I mean you can't say exactly how would all this play out. And even, I guess, potentially, not a timeline for things but just how much time would was involved in the in the Montpelier issues. And I mean if you're going to court there I got to believe potentially that there's the chance for a lot more time involved. Yeah, so just to, on the most basic level I would say the assessment process wouldn't change with just having a different standard. You know, applying it's applying that standard to the set of facts will be will take the same amount of time and I will note the first Montpelier shooting in January 2018 took longer review because of the sheer number of individuals were present the amount of video to review the collateral interviews it was a much greater body of evidence that sort through versus the August of 2019 Montpelier shooting which really involved only two witnesses and a limited amount of video that was on both of those. You remember how much time each one of them took. I believe for. I believe findings were announced between both the state's attorney office and the office attorney general within three months for the January 2018 shooting for the August of 2019 shooting it was faster I think less than 45 days. But to me that still sounds like a lot of time I'm sure a lot of work can be done in those time frames but anyway, go on. Yeah, so you know that but just referencing back to my experience with both these cases it does bring up, you know, a complex issue which I think underlies this and the bill attempted to note this and some of the circumstances, both these cases had individuals with some degree of mental health issues who also presented with a sensible firearms at the time. And that one thing I do know from the Seattle policy and the California policy, both give some credence or note that these situations often unfold dynamically and rapidly without the benefit of 50 or 20 20 hindsight, so to speak, and the volatility that can come with not knowing a person or not understanding their reactivity to commands is difficult to deal with any statutory regime and there is no artful or elegant way to deal with a situation where someone is ostensibly holding what appears to be a firearm and I think that's a frustration I've heard time and time again from constituents I'm just feeling that, you know, the law enforcement shootings were not justified because they were not in fact armed with a firearm in notwithstanding that they was visually indistinguishable from a standard caliber firearm so, no matter what policy we adopt. I think there are still under that umbrella to touted circumstances, each case stands on its own and oftentimes there are factors that are going to suggest that the use of force was appropriate. Thank you. Yeah, I'd like to start by looking just there's two components of the bill the use of deadly force and the use of force but looking at the use of deadly force which I believe I'll make a statement you tell me if this is true or not that it that this relatively closely follows California's law the one there's two changes primary changes, a definition when that you know kind of a definition of necessary, and then provision that says that they have to cease deadly force once the subject is essentially incapacitated, which is pretty common sense and also pretty common in the law. Is that is that fairly similar does that track California. Yes it does and you know the other point I think I've spoken with you and so for some of the committee members are familiar. I did have I do have a background as a judge advocate in the United States Army and part of that was as an operational to special forces unit and in that capacity and just generally with scholarship on operational law. There's a concept called what a combat or out of combat it's enshrined in international humanitarian law or the law of conflict which basically says that once somebody is no longer capable of considering or offering force against another, they're effectively out of the fight, meaning the use of continued force should cease. So that's a I think that's a theory that is consistent with any number of legal doctrines far beyond just Vermont state law. Okay, so then looking I guess at the use of force component, but actually before I do that. It seems a critical component for use of deadly forces the imminent threat of death, which is defined as really being immediate that's when that individual on the bridge has pulled out the gun. Whether it's a real gun or not law enforcement officer doesn't know it and has to react and that's pursuant to essentially what we're setting forth as a standard for use of deadly force. So on the use of force component of this. I have a couple questions I want to set them up. One, let me just ask you the general question which is, if it's, if it's less than deadly force. How would you evaluate a state's attorney on whether there's any kind of charges to bring against a law enforcement officer. If there was a claim of excessive force. involved as opposed to deadly force. So, you know, as lawyers are famous for saying it depends, you know, giving it just a broad example is difficult. So the questions, you know that I would look at or assess. What degree of peril was there to a person so even, for example, let's say you have in looking around law enforcement we have, you know, troopers officers who come in all shapes and sizes so let's suppose for a minute you have a, I mean, a female officer of 130 pounds confronting a intoxicated 280 pound male. The threat presented to that officer in that situation is potentially different than someone of a similar size or scope particularly if they're in close range so I'm thinking of the wrestling type fights or when someone tackles an officer. And how we assess the use of force there may be contingent upon, again, the particular circumstances, the size comparison, the hostility, the modality or tools available to that person to cause harm. You know, an extremist the opposite of it is if you have an unfortunately seen around the country there are circumstances where you have sometimes children or use who are very small who are, you know, being tackled and basically laid on by significantly larger officers, where they really isn't an ability of that small child or you to provide you know much, much in the way of resistance and yet the force applied does cause harm or hurt them and would appear even to, you know, even outside of just legal analysis would shock the conscious in terms of the abusive use of power in the circumstance so again it just depends on, I think those considerations. Would you be looking at as whether to charge assault or aggravated assault would those be the underlying crimes that would be possibly considered. Yes, they presently would. Okay, so, so the other component would be, you know, there's a lot of there's the opportunity to bring a civil action. Obviously, that's outside of your area. And specifically, one of the things that in the use of force component in subsection B seven is looking, essentially it's de escalated just to two things it's, it's, I would say establishing a duty to de escalate I don't think there's a criminal charge that that corresponds to whether or not they fail to de escalate, and then related closely is really duty to consider whether an individuals impaired, and therefore that should adjust what level force one is going to use. Question I have though is from your experience. So enforcement are they sufficiently have there been situations you've seen that that you believe there should have been more more efforts to de escalate to deal with an individual who may have been impaired before they got to the point of having to use lethal force. Is there or any force. Yes, so to say it's not in the context of lethal force. In terms of just general use of force. I'm hard pressed to find a specific example within my county I've certainly seen media reports of other areas of the state where some, some of the behavior exhibited would call into question whether force has justified for example when someone is in handcuffs or in a jail cell. And if force is applied that has to be probably given some greater, greater degree of scrutiny. I think that I will say this, I think that most officers and troopers and deputies exercises without it being codified that being said in establishing a standard I think this is consistent with what reminders would expect and want out of their law enforcement process. And I think the key word in there is if feasible. So sometimes it's not going to be feasible to try to de escalate or use some alternative means the one it is, it should be considered of course there are other, there are some circumstances where there isn't an availability of some other, you know, lesser restraint or time considerations or safety considerations don't allow but I think the language is sufficiently flexible to account for that. And from an aspirational standpoint and from a policy standpoint, it does seem to enshrine a value I think people would be fully supportive of. And I guess one final question is, is what if any do you see as a benefit of having a standard for use of force separately for use of deadly force as opposed to simply relying on policy. I'm certainly cognizant that sometimes critics of the state's attorneys will note that there are 14 different versions of justice and my greatest fear would be that among county municipal department sheriff's departments and the state police that we could end up with a Byzantine structure variations on a theme of different use of force policies where you know within Washington County we have seven primary law enforcement agencies if I have to look at seven different policies for each case that is not going to yield necessarily simple or consistent results and whether whether the base of charge so to have a baseline standard at the state level I think is important, especially considering well through officers can actually their duties. And typically our municipal departments, because they're small do back up one another. So I think we'd want to avoid a situation where the various city police department is operating at one standard and the mafia police department on another and then the state police get involved and we have still a third standard. So consistency I think is important and that also ensures a greater degree of likely should impart a greater degree of uniformity and whether cases are prosecuted or not. If there's a model uniform policy that we somehow are able to get all law enforcement to follow. Would the state's attorneys have to follow the same amount of discretion or deference that they would give to those policies. You know, even if they're their their uniform across the state, you still have 14 different decision makers and let me ask you this are those policies, are they do they have the force of law begin with. Well, yeah, you know I think that a, the intersection of policy with whether or not the charge certainly is relevant, whether it certainly speaks to the intent of the officer, whether actions are reckless. For example, you know if there's a certain type of restraint that is permitted within a department, and it's used, even though another department may view it as outside the scope and being reckless to use that that could yield a basis for prosecution. I would just say that the misuse or lack of training and using some sort of, you know restraint or force technique that ends up causing serious bodily injury somebody could also potentially be a basis for criminal liability. But I think that the just to be direct I think that we seldom get into an analysis that is that hyper technical about. A particular application of policy and, and again because we don't have a specific statute dealing with law enforcement conduct, it falls back under the standard assessment of whether an aggravated assault or simple assault has been committed. I think that those analysis are necessarily more complicated because there are circumstances certainly where a law enforcement officer can operate completely outside the scope of their professional role and harm somebody. But there are other, there are other situations where there are other situations of course. So, so let me just jump to it real quick. I just follow up I want to make sure. So, without suggesting and you know and you've said I'll think a lot of positive things about what we have in this bill but without saying that this is the right standard. I want to understand the benefit of statewide standard and statute versus even if it's a model uniform policy if there's a difference in how that would play out in accountability of law enforcement action and using force. Well, so as laid out right now, effectively the third prong of the justify justification basis for homicide would be replaced with this use of force policy and mirroring the way California enacted their legislation and their new standard. So with that said, we, at least in the deadly force end of it it does directly tie into whether actions are or are not defensible. I think the policy standpoint. I think, you know, in the absence of that just looking at policy that it's to me not as clean or concrete, especially if local departments or other agencies in the state deviate from that policy and have some I think that's also the question is I'm not sure what the power of either the governor or the Department of Public Safety is to mandate or impose or acquire that each agency adopt that policy and under these circumstances again consistency is important and I think ultimately a statute carries much greater weight than just a policy because it is something that the legislature has manifested as the legal standard for the state. Thank you. Great. Thank you very much. It's helpful. So I make sure I'm not missing any hands don't see anybody else. I'm sorry, did you want to add anything before we move on. Um, I have nothing more to add we've taken up plenty of your time already apologize for that. Of course I'm available. You know if there are any questions that come to mind in the future I can always just hop back into the committee at your request. Great. Thank you, I appreciate no apologies needed. This is helpful, it's important work. Okay, Falco welcome. My name is Falco Schilling, I'm the advocacy director for the ACLU of Vermont and I really appreciate the opportunity to come and testify on this bill today. After hearing testimony, both in this committee, as well as in the Senate about this piece of legislation, I thought it might be helpful to step back a little bit to think about why we're here and why we're having this discussion. We're at a moment where the public has lost faith in the law enforcement community's ability to regulate themselves. And this is something that if you listen to the testimony is pretty much what the law enforcement community is asking for right now. They're saying we don't want this to move forward and statute. We want to be able to create our own model policy and then do our own regulation and this is something that after I'm sure you all are pretty familiar with being in the building regulated communities rarely want more regulation of their activities. And that's what this bill is trying to do today. It's trying to set a floor for Vermonters in terms of their expectations for the use of force by law enforcement officers. And I think most people can agree that we want law enforcement officers only to use force when it's necessary and to not use any more force than is necessary to achieve their lawful objective and that's exactly what this bill does. So to say that the ACLU of Vermont supports this legislation and thinks it should move forward we have some suggestions for how it could be improved but we think that this is a this is really important work that can help restore some of the faith that the community has in law enforcement. So we've asked you know the question has been asked a number of times both in this committee and other committees. Why have a statutory standard. Why should we do this watch as opposed to leaving this up to a statewide model policy. Well the first I already answered a statewide model policy would be created by law enforcement letting themselves regulate themselves. And that would be based on the floor of the current constitutional standard. What this does is it raises the floor. It says here are expectations as a state. And this is what your policy needs to be adjusted to. So, you know there was a discussion of could we push out the effective date. I could see this as a way to set the floor and allow law enforcement to develop policies that would meet these standards and I've also heard in testimony that this takes away the ability to innovate for law enforcement to innovate. I want to say once again this is the floor. They can be more restrictive in the use of force and it's put forth in the standard. But this is the floor by which they cannot go below. So this is something that helps set expectations for Vermonters about the use of force from law enforcement agents, not just deadly force but the use of all force. And this is also important in the current climate when we know that the black Vermonters encounter force by law enforcement officers at five times the rate of white Vermonters. This is context we need to take into account. So we support this bill. We think it's important moving to the necessary standard is a strong step in the right direction and also the totality of the circumstances is extremely important. This means that the officer will have to take into account. Things beyond just the moment before the use of force, which is largely what's relied upon in current cases is that use of force reasonable, given that moment right before the use of force. So we support going to a necessary standard that's based on the totality of the circumstances. The testimony that I submitted, we have some additional factors that I think would be helpful to look at and possibly include within the totality of the circumstances these are taken from legislation that was recently introduced in Massachusetts, worked on in part with our affiliate in the Massachusetts. And some of these look at many of the components that are contained in the requirements of the bill, the flesh them out more fully within the totality of the circumstances. Looking at the officers conduct, not just the factors that might be known about the person they are pursuing. So, as you're looking at possible drafts of the bill, I would suggest that those could be incorporated not necessarily replacing what you already have but that those could be incorporated within the language and I've provided that in my testimony. And so beyond that, I will say that one of the things that I've heard other folks talk about is that by creating this new statutory standard, it's going to be somehow a boom to trial attorneys that there's going to be a rush to the courthouse there'll be some sort of coordinated extortion, due to this new standard being put into statute. And when you look at the facts on the ground I just don't think that's true we've already heard that prosecutors have the discretion to decide when to bring charging decisions, based off these new standards. And when you look at the ability to bring civil suit that is severely limited. That's severely limited by qualified immunity, qualified immunity holds that officials are immune from lawsuit unless they violated clearly established statutory or constitutional rights, which an official would have reasonably known about. So the issue that that would be presenting in this case is this is a new piece of statutory. This is a new statute. We are then creating rights for folks that have not been adjudicated before. And it would be hard to adjudicate these these new rights on the facts, because the way qualified immunity works is immunity from suit. So often these cases are brought and then they don't actually reach the fact finding stage. You don't have the opportunity to decide the facts on the merits. It's just based on is there case law within your jurisdiction that fits a narrow set of facts. So that is to say, we think this is a big issue. But we support moving forward with this legislation in hopes that we can have a larger discussion in the future about how qualified immunity would allow victims of excessive use of force to have their rights vindicated, and to have their day in court. You know, this is a doctrine in a footnote in my testimony. I noted there's a case of an officer who entered a backyard. He told, you know, told people to lie down the ground, the children in the backyard lay down, an officer shot at a dog, missed and hit a child. It's hard from bringing suit because there was no case law on point saying that you cannot shoot at a dog, and that a person who is then hit by that bullet has had their fourth amendment rights deprived. So this is this is the type of structure that's created by qualifying immunity. So to talk to the point of will this create a rush to the courthouse will this be a boom for plaintiffs attorney attorneys, I don't think so. And I think that's something that needs to be addressed in the future but I would say that we're highly supportive of this piece of legislation, or highly supportive of putting this in statute, because that creates an expectation for the citizens of Vermont. And we've heard a lot about civilian oversight of law enforcement recently that's what is happening right now. This body is civilian oversight of law enforcement and that is your role. So I appreciate that you have taken the time to do this and to think about this. And we support this body moving forward with this piece of legislation. Thank you. Thank you very much. Appreciate your testimony. Nice to see you. Any hands. Tom. Thank you. When and where was that that that shooting at the dog. That was in the ninth circuit in 2019. That's California. Yeah. Okay, so it wasn't here. Okay. Remember, the doctrine is a Supreme Court doctrine that is then adopted within the different jurisdictions but it gives you an idea of how that that doctrine can play out in practice. And it gives me an idea on what California is like in Vermont, but that's beside the point. So anyway, if we set a base standard as far as policy goes, and we leave, you know, a lot of the work up to the police departments, and I'm assuming individual police departments. And if we set a base standard as far as the way they're going to do their policy, we still aren't, if that happens, we still aren't going to have a consistent policy throughout the state. But my question is, okay, if we set a base standard as far as policy goes, and in that base policies isn't working. I think it's going to be difficult because then we've got to come back and change things. Well here where we are now, which is going to really slow things down when it may not need to be. And the reason I bring it up is in Seattle with with the policies that they have which are implemented by the fed, the feds. In 2008, they're still tweaking their policies 12 years later. And to me that that that speaks volumes of not putting things into statute because it just keeps getting better. I don't know if you were on yesterday but I brought up that back in 08 and before Seattle was a mess. As far as their police department went and they had a federal intervention and you know during the Obama administration and been following those guidelines since, and they're, they're following policy, they aren't following law right now. And they're like a model police department in the country. The lack of a better term the violence with with members of the police department is way down. You know they're there are arrests for petty, even though things are illegal or way down. And, and they actually have half the number of police, then a lot of major metropolitan areas have the half the number per capita. And things are, well were up until recently, you could say, we're working really well out there. And then what's happening now is so they've implemented all these things, you know, and following this policy. And now because of basically the, the political makeup of everything in nowadays, the city council is getting involved, and they already have half the police per capita of some major metropolitan areas and there's people on the council, talking about cutting the police in half, which to me speaks volumes of bureaucrats getting involved where they shouldn't get involved. If good sound policy is set and implemented. To me, looking at Seattle, it works. And, and some of this language that we're using is Seattle is Seattle language. But the thing is, is they're being forced to do it because they were, they were really off course as far as the way they were doing policing, we aren't, we aren't that far off course in Vermont. As far as the policing goes, we can implement anything and there's still going to be things that are going to happen. And, and, and, but if you can have, you know, the policy being somewhat fluid to, or fluid to, to change things when they need when it needs to happen. I think that that is proven in Seattle, that it's fluid out there they can change the policy if it needs to be changed, and in their great police department. Thank you. So I would just respond. One, the governor has issued an executive order on law enforcement that's called for the creation of a statewide use of force policy. So I would argue that by implementing this statutory policy, that would then set a guidance for the administration to develop that policy with this is the floor so I think that takes away some of the concerns about having different policies and different police departments that this would set the floor. And then as the governor has said, we will then create this model statewide policy which would then be based off of these standards so I think that speaks to that I'm also, you know, glad that a lot of this legislation is based off of the Seattle model where they've had years to look at these issues and try and implement that so I think that is also positive and then in terms of the need to come back and revise. In fact, the legislature does that quite often. It's not uncommon for the legislature to come back and look at something a year or two after it's implemented it and say hey we need to have a small tweak here. I've seen it in many committees I've seen in this committee it's something that happens, and then that's the role of the legislature in this oversight. And in terms of bureaucrats making policy we're asking for a model policy to be the only policy that's made by bureaucrats. We're asking elected officials as opposed to bureaucrats and then asking them to refine it. And that's why we would support pushing out the effective date if it gave time to implement a model policy based off of these standards. Thank you. Anybody else. And I do see that the commissioner needs to leave so hopefully we can get the commissioner back tomorrow. I think we can get the commissioner from him. Okay, right. Well thank you so much I'm not seeing any other questions thank you and certainly appreciate your testimony and we'll look for your, for your written testimony if it's not posted it certainly will be so thank you. Thank you and happy to come back and answer any questions. Okay, great, thank you. All right, so in the last 1015 minutes. Let's hear from Attorney General Donovan welcome. Thank you. Thank you. Thank you. Thanks for having me TJ Donovan, Vermont Attorney General. Let me first start by thanking the committee for their hard work on this issue. I want to thank all the stakeholders and community stakeholders who have been involved. I want to thank law enforcement, who have been involved and who are willing to change because we are at an inflection point in our state and in our nation when it comes to police accountability. I believe in our criminal justice system, and the men and women of law enforcement of Vermont law enforcement are part of the solution, and we have to be supportive of them in this process. I believe, I also want to note that my colleague who was really a subject matter expert in this Julio Thompson is with us and representative burden. I'm talking about Seattle in the great work reforms that are happening there with their police department Julio Thompson was part of those reforms. And I really urge this committee to rely on his expertise in this matter. He's a, he's a national expert on these issues. And like any good lawyer, I come with more lawyers. So I'll turn it over to him at the appropriate time. But let me let me be brief and let me be to the point, because time is short. I believe Vermont should have one uniformed use of force standard for all law enforcement agencies in this state. And it should be the highest standard in the land, which is the California standard, which I support. I think it makes a difference in my opinion. You heard from States Attorney Tebow who's reviewed these cases. I've reviewed these cases as Attorney General, I've also reviewed these cases as States Attorney I want to talk about a few of them to to, I believe, to distinguish between the different standards and what, what we can do by adopting the California standard because we're going to train to the standard. And that totality of circumstances and that de-escalation policy, that cultural competency, those issues that we need to do more work on. I want to talk about the Phil Grendan case. Phil Grendan was 77 years old living in public housing in the city of Burlington. He was evicted. And I think the first question, and he also suffered from mental illness. And I think the first question is why would we evict a 77 year old in public housing? And there was an escalation. And the police were called, members of the Burlington police were called. And to their credit, they tried to de-escalate the situation. But Mr. Grendan was in his apartment. Nobody else. And at some point in time, the police decided to go into the apartment. And we, if we change the standard, we look at the totality of circumstances, those hard questions of drilling down to exhausting every possible remedy of answering the question is public safety at risk. Public safety wasn't at risk in this case. Mr. Grendan was in his house by himself. Mr. Grendan may have been a risk to himself, but the public safety was not at risk. And so the police went into the apartment. Mr. Grendan was hiding in his shower behind a shower curtain. They pulled it back and he had a knife. And members of the Burlington police department attempted to tase Mr. Grendan. It did not work. He came out waving the knife. He was shot killed. And so I was in a hospital in the county state attorney and I reviewed that case and I ruled it justified. Because under the current standard, you look at those last seconds. Those last minutes of reasonableness of whether or not there is a imminent, which is a key word that nobody has discussed yet. Fear of serious bodily injury or death on a reasonable person standard. And when somebody is coming at you with a knife. If we had a necessary standard and a totality of the circumstances standard, I'm not sure you'd go into that apartment. I can't guarantee that. But would train to that standard and you would exhaust every possible remedy and the public safety analysis would be at the forefront of that analysis and public safety was not at risk, given that he was in his apartment by himself. And I justified that I take responsibility for that. And I want to acknowledge not only the herd to the community to Mr. Gretting to his family but also the officers involved in that. This is traumatic for everybody. Another case, Jesse B. Shaw. At a Winooski. Relatively young guy had an arrest warrant out for him. And he was in a house in Winooski. And police. We're made aware that he was in the house. Members of the Winooski police were there there outside the house. And a off duty deputy sheriff from the Franklin County Sheriff's department happened to be there as well. B shot came out of the house in Iran. When you see police either by policy or practice I'm not sure. Did not give chase. Again, looking at the necessity and the totality of the circumstances. The deputy sheriff did give chase. This was on body camera footage and there was a foot chase. Behind a school and at one point, Mr. B Shaw stopped turned around had his hand behind his back. As if he had a gun and said. Words to the officer. Such as you want to go. To the best of my memory and the officer shot and killed. Jesse B Shaw. I ruled that justified. Because again, you look at the last seconds under the current standard. Whether or not a reasonable person would be in fear of imminent. Death or serious bodily injury. And whether it was reasonable that somebody could have a gun. And give it all these other factors. But the policy conversations that we have to have. Here. About bringing in the judiciary. And understanding that policing is a dynamic business. And is going to change and evolve. That we have to understand that perhaps we need to change the wording. On those warrants when somebody fails to appear at a court that you're not commanding the police to give chase. Because we know in another example, whether it's the Vermont state police or other agencies. When it's a motor vehicle chase. They don't engage it, engage in it anymore. Because it's inherently dangerous. Police have evolved and changed. And I think of the standard was in place. And this policy development. Perhaps, perhaps. The outcome would have been different. But even with changing the standard. We are not going to avoid. Officer all embossed ball shootings. Case out of fire. We are not going to avoid officer all embossed ball shootings. Case out of ton bridge. At my office. Reviewed. Individual who was known to have guns. Made threatening comments. There was attempts to deescalate the situation. And at some point in time. He came out with his pregnant girlfriend as a hostage with a gun to her head. And he was killed. Vermont state police. Shot and killed. That individual. I ruled that justified. And whether a standard we're talking about would never change that outcome. Because that was necessary in my opinion. To save the life of another. And to act in the defense of another. And I raise these points because this is highly complicated. And I think we need to be trained to the standard. And bringing the police. The men and women. Who are willing to change. We owe it to them to give them the tools to change to bring. The standard to Vermont. Not to set them up for failure. But so we have success and safety for all of our honors. I know there's been conversation about whether you put in statute and policy. And I think that's a good point. I think that's a good point. And I'm confused about that. I think you got a model through the FIP where it's in statute. We have the policy development. Police in as a dynamic business. It's going to evolve. These policies are going to run pages upon pages. I think it's a good way to. Bringing have community input. I don't see it as a model of just the police. But I think that's a good point. I think it's a good point. I think that we have one. State wide. Standard when it comes to the use of force, it should be the highest standard. And I support Vermont. Adopting the California standard. I know. Chair. Perhaps right of time. I'm going to let. Thank you. I'm going to let. Martin ask a question and then. Quarter of. Yeah. We need to go. Thank you. Thank you. I mean that you support. The bill as, as amended. You keep on saying you support the California policy and. I support the California policy, but I think the granular details of the policy should be outside of statute. Well, let me ask, let me. All right. That's fine. Let me ask you another question then. Going back to the Grenin situation. Yeah. There were policy. I mean, first of all, I, you know, I happened to be with the DEBORN, the DEBORN police department. A lot of things went wrong. And the Liberty police department was following that. And I agree. Under what the statute is, what you had before that the right decision was made. For, for the use of the deadly force, but there was a lot of things that went wrong. And here's my question is, weren't there multiple policies. In place for how the Burlington police department was list in the report, I can go over those containment policy, time policy, edged weapon policy for a safety zone, communications policy. They did multiple things wrong, leading up to the point where they had to use deadly force. Is that correct? I mean, did I read that bit? That doesn't affect your ultimate decision on whether it was justified. Whether or not there's a violation of a policy doesn't impact my ultimate decision because my point, uh, representable on under the current standard, which needs to change. You look at the last minutes, if not seconds under that reasonfulness of whether or not the reasonable person would be placed in fear of imminent death or serious bodily injury. And I think if we change it to the necessity standard, uh, with that totality of circumstances and trained to that standard to exhaust all options, and that policy development, frankly, of defining those standards is a question. Now, California has about a year on us. Uh, there has been some development in that area. Julio Thompson can talk about that. Um, but I think I don't, I don't view this and this may be a longer conversation as a either or of policy versus statute. I think it's frankly both. I agree. I agree that it's both, but my point, and I just want to make sure that that that's clear is that, uh, where, where should we have the standards? Uh, how much detail should we have them in the statute? Uh, we have, we have the, we have the policy that Burlington Police Department had. Uh, they didn't follow it. There was no discipline of any of the law enforcement officers that were involved in that. My point only is that we should make the floor as, uh, Falco was saying as strong as possible in the statute. Uh, and then, and then allow those details, uh, to be fleshed out in policy and California's statute is fall falls far short of the necessity necessary floor. And it doesn't, I don't, I would disagree and we could talk more offline. I could talk to Julio, but I would disagree that, that, uh, the California policy or the statute that they put into place, if we adopted it, it would have changed any kind of output in the Grenin case or any of these other cases, uh, because it really still, it still is that, that second that you have to use the, uh, lethal force, it doesn't back into time. I disagree. And obviously it's impossible to go back, go back and revisit, but I think, again, when you're looking at the necessity and you're looking at totality of circumstances, those are policy decisions about whether or not you're going to enter the apartment or whether or not you're going to give chase, you're not going to put that in statute. Those are policy decisions, but it's driven by the necessity standard. So you can have the word necessary or necessary, the California standard necessary in statute, but you have to develop the policy about what the, what that means in certain circumstances. I don't see how you're going to have a statute that is going to run 15 pages, uh, in statute. Right. It doesn't. This proposal does not. I disagree that those are policy questions that would be developed on the standard because you train to the standard, whether or not you're going to give chase, whether or not you're going to enter an apartment and every dynamic circumstance that the police face in this situation, that's kind of policy development. That's not in this amended bill. It doesn't go to that level detail. It's counting on this uniform policy for statewide to flesh out just what you're talking about. I just feel that the Senate's bill fell short of making it clear what you're asking us to do, what you want us to do, and we can talk more with Julio about this, but I think it fall, and maybe I'm wrong. Julio is the expert, not me, but I believe what the Senate did and what the California statute did falls short of what your goal is. So. Yeah. So I'm, I'm sorry. We have to wrap this up. Um, are you available in Julio available tomorrow? You can, or you can let us know, but, um, I think it'd be, uh, good to continue this conversation. Uh, available tomorrow. Yeah, and we're happy also if we could help, uh, Representative Dredd or Representative LaLondon for the entire committee to send over perhaps some proposed language. Could I, it sounds like we may be saying the same thing. Um, I think we're, I think we're at the granular level of detail. I look at perhaps the FIP as a model of this where you have statute and policy and community input and oversight. Right. Right. Okay. Well, no, that's helpful. Yeah. And, and please do send, send over language. So okay. And again, sorry to cut this off, but I want to give folks time to, to get to the floor. Uh, so we will see everybody on the floor and thank you everybody. Uh, we'll continue tomorrow and, uh, we'll now adjourn and go, go up YouTube, please. Thank you, Laurie.