 Okay, good afternoon and welcome to Vermont and House District City. We are considering S-254 as passed by the Senate, and it is actually relating to recovery damages for Article 11, violations by law enforcement, and a report on qualified committee. And we are going to have a walk-through by the legislative council, and then tomorrow we will actually begin to hear from the witnesses. Welcome. Good afternoon. Good afternoon. Thank you. Ben Novogrowski from the Office of Legislative Council. As you said, Chair Grads, this is S-254, an act relating to recovering damages for Article 11 violations by law enforcement and a report on qualified immunity. Before I really get into the details of the bill, I'll give a broad overview. So S-254 proposes to codify the principle established in the 2019 Vermont Supreme Court case of Zulu v. State and apply it uniformly to actions to recover damages, the legal term for money, against any law enforcement agency in the state of Vermont. It also creates a requirement that law enforcement agencies maintain a record of all judgments or settlements paid. And finally, the bill commissions a report to review the state of qualified immunity in Vermont and any impediments to civil justice access that it presents. Before I get into a little bit more detail, I think it's important to note what the bill does not do. Despite prior versions of S-254, the bill before you today does not eliminate the defense of qualified immunity available to law enforcement officers. Plain and simple. The Senate Judiciary Committee heard hours of testimony about the pros and cons of creating a private right of action against law enforcement officers that would eliminate qualified immunity as a defense. But after extensive deliberations, this is what the Senate Judiciary decided to go with and what passed out of the Senate chamber. So with that, I'll go into the details of this bill. Section 1 creates a new Chapter 190, Section 5607, entitled 12, in what is supposed to be new subsection A. It declares the General Assembly's intent to codify the Zulu principle, which I will review for the committee in a moment, in statute to create a standard to recover damage to Article 11 of the Vermont Constitution. For context, like the Fourth Amendment of the U.S. Constitution, Article 11 is the provision of the Vermont Constitution that protects citizens against unreasonable searches and seizures. That being said, it is important to understand that the U.S. is a country with dual sovereignty. The federal government and 50 different states, each with their own governments and constitutions. The U.S. Supreme Court has final say on what the U.S. Constitution means, and the Vermont Supreme Court has the final say on what the Vermont Constitution means. And the Vermont Constitution's decision in Zulu was based solely on the Vermont Constitution and Article 11 specifically. This is critically important because the Vermont Supreme Court has long held that Article 11 is more protective of citizens' rights than the Fourth Amendment counterpart of the U.S. Constitution. As a result, the options that someone may have to sue for violations of the U.S. Constitution may not provide a meaningful remedy for violations of the Vermont Constitution and Article 11 specifically. So it's important to remember that because the principle that was established in Zulu to recover damages for an article violation is this. That one, a law enforcement officer violated Article 11, and this is outlined in Subsection B of the bill, the codification of the standard itself. So one, a law enforcement officer violated Article 11 of the Vermont Constitution. That there is no meaningful alternative in the context of the particular case. And three, that the law enforcement officer either knew or should have known that the officer violated clearly established law or the officer acted in bad faith. Subsection C defines what law enforcement agency is and that's basically any employer of a law enforcement officer. But going into the details of what this actually means, the second part of the Zulu principle is directly relevant to what I was discussing before about providing meaningful remedies. Just because there may be options for someone to sue for a Fourth Amendment violation under Section 1983 of the, it's a U.S. federal law where oftentimes people will sue for violations of their civil rights against state and local officials. This is a common remedy that people pursue when they are agreed for constitutional violations, but those are exclusive to the United States Constitution. But that, and because of that, that does not necessarily provide a meaningful remedy for Article 11 violations, which is what this is bill before you is attempting to do. The third part of the Zulu principle is also significant because it incorporates bad faith. Previously, bad faith was not a factor in the determination of a 1983 analysis. And under this, bad faith is normally characterized by case law as ill will, wrongful motive, including discriminatory animus. And this is an explicit rejection of the U.S. Supreme Court's approach under the Fourth Amendment since the Zulu Court held that an officer's bad faith is irrelevant. So that's what Zulu does. And that's what this attempts to do is to codify it and apply it to all law enforcement agencies in the state of Vermont, state, county-level, municipal, and other variations of entities that employ law enforcement officers. How about like security, like private institution? They would have to be certified law enforcement officers, but it would have to be an agency that falls under the definition. So if they employed certified law enforcement officers that were acting under a law enforcement agency, they would have to be certified law enforcement officers that were acting under authority of the state. And yes, but I think in that specific situation, if it was a private security force, it would not apply. Okay. I'll get to you in a second. Since there's no meaningful alternative, there is no meaningful alternative in the context of the particular case. Can you tell us a little bit more about that? Yes. The Zulu case did discuss what some of those could be and also just in jurisprudence that's out there. There could be a meaningful alternative. So for instance, this is access to civil damages. So this would be a civil case to try and get money for wrong that was had for a violation of Article 11. If there was a prosecution, so there's someone that was being prosecuted under law and during the prosecution of the criminal case, there was evidence that was collected. That was subject to emotions of suppress. And so therefore it was excluded from the court case. It could be possible that that is a remedy that's meaningful because oftentimes if evidence is suppressed, the prosecution doesn't have the evidence in the case to prove it anymore and the case may be dismissed. That could be a potential meaningful remedy under the law. That would then essentially get rid of the second prong where it would stop the analysis. It could be that a conviction was overturned. It could also be that the person could pursue a remedy under the federal statute, Section 1983. But it all depends on the context of the case, but these are potential remedies that could qualify as being meaningful. And the other reason why this, why the Senate judiciary kind of came up or landed on this is that there was an open question during the debate in the committee about whether or not this applied to all law enforcement officers in the state because the Zulu case only involved a state trooper and his employer, which was the state of Vermont. And so the holding was only limited to that, those specific set of facts. And so it was unclear as to whether or not the standard that they outlined would apply to sheriffs or municipal or other law enforcement agencies. Moving on. Excuse me, Martin. Yeah. Yeah, I asked my question, Maxine, but I just have a follow up on that. Why can't it seems like we should say in that second number two, there is no meaningful alternative remedy because it's just, it's like alternative what is the question that I had. And if that's what we're talking about, we should add the term remedy in there, unless there's some sort of other alternative that you're talking about, I think. And that could very well be done. This language was taken directly from the Zulu case. And that was something that was again, part of extensive debate as to how far essentially it should be editorialized. And I think that is a policy consideration that this, that this committee could undertake if you want to get a little bit farther in and more detailed about alternative remedy or, but again, I think in those circumstances, it may not necessarily be a remedy per se could just be alternative where again, in the prosecution, if there's a parallel prosecution suppressing evidence. And I think it's up to reasonable debate over whether or not that's a remedy per se. I think, I think it's just an alternative that can help with the agreed. But again, that's a policy consideration. I think that the committee could, could, could discuss. Yeah. And I guess I'm just after clarity because I think it's ambiguous, unless somebody has the court case in front of them. And that's not going to be the case. I think this has to at least stand alone. So I would just kind of flag that as something that needs a little further look at it. I have a lot of witnesses. So hopefully they'll hear about that too. Okay. Great. If there are no more questions on that portion, moving on to what is now would be known as new section 5608 is a record of case disposition. This require law enforcement agencies to maintain all case dispositions for claims made pursuant to this new chapter 190. This would include all final judge judgments and settlements paid by a law enforcement agency. The agency would be required to attach a copy of the underlying complaint to each settlement or judgment. And the records would also be subject to the public records act unless an exemption applied. And any record that would be disclosed would be required to include the name of the law enforcement agency and the monetary amount paid. There was discussion within the Senate Judiciary Committee about I think privacy protections for other people that may be listed in those court documents. I do know the commissioner of the department of public safety raised some concerns about this potentially being more restrictive than what they may already disclosed. So that's something that the committee may want to consider. And I'm sure that the commission will probably discuss that. But an issue that I just wanted the committee to be aware of. Can I ask just a question on that? So, I mean, this is clarifying that this reporting would be subject to public records act. Is that, and it sounds like maybe Commissioner Charling will play in on this, but I just like to hear your opinion. Like, are these documentation not already subject to the Public Records Act? Well, to be quite honest, this was a concern I think that was raised at the end of the committee's, you know, I think time was getting a little tight. This was, you know, the final version that was produced. And so I think my own information, I'd like to know a little bit more on what the department's disclosure policy is and really what it was. And again, I think the concern that the committee had was just to try and balance that there was some level of access for the public to know that there were judgment, how many judgments were being paid, what the amounts were, I think to help kind of survey and also for a public accountability piece, but also to balance that with privacy concerns and the Public Records Act. I do know that there are exemptions if there are, you know, some privacy considerations involved. If there are confidential informants that might be mentioned or along those lines. But, you know, I think that those might be not as relevant to a judgment or settlement. And so again, I think it would benefit everybody to hear what the commission's perspective is on what they disclose and how it's done. Okay. Just a quick question. Don't the courts ought to do this? Well, a lot of these are public documents. And I think that these would be if there was a public request for the agency itself. It could just refer to the court then, right? Potentially, yeah. Office. Yeah. And it was just to make sure that the agency that was involved in the amount would be disclosed no matter what. But yeah, many of these are public documents. Settlements may not be, but judgments would be. And so again, these are requests that would be made of the law enforcement agency. And many of this could all much of this could also be accessed through the courts. Definitely through judgments that are rendered, but maybe not as comprehensive as it comes to a settlement. And moving on to section two. This is the report on access to civil justice remedies and law enforcement, qualified immunity in Vermont. This portion of the bill came to be given the extensive testimony that was provided to the Senate Judiciary committee and really trying to get, I think the committee wanted to get a better understanding of really the evolution of civil justice remedies in the state and how qualified immunity may or may not be an obstacle to that. And so as a result of that on before November 15th, 2022, the Office of Legislative Council shall submit a written report to the Senate Committee on Judiciary, the House Committee on Judiciary and the Joint Legislative Justice Oversight Committee, concerning the impact of the doctrine of qualified immunity on access to civil justice remedies for people wrongfully harmed by bad faith policing and violations of civil rights in the state of Vermont. The report shall identify particularly the origins of the doctrine of qualified immunity and its present interpretation by the state courts in Vermont, existing constitutional statutory and common law causes of action for addressing the alleged misconduct of Vermont law enforcement under Vermont law, existing immunities from suit concerning allegations of Vermont law enforcement misconduct under Vermont law, existing defenses to liability, existing statutory and common law limitations on damages, the applicability of the doctrine of qualified immunity to all certified law enforcement officers, and then clarification that the report shall be confined to legal analysis only and shall not make any policy recommendations. That's because the Office of the Legislative Council cannot make policy recommendations based on our nonpartisan nature. And then in preparation of the report, Legislative Council shall have the Administrative, Technical and Legal Assistance of the Attorney General's Office, the Defender General, and the Center for Justice Reform at Vermont Law School and any other stakeholders interested in assisting with the report. And section three is the effective date where this would go into effect on July 1st of this year. And I'll answer this very good presentation now, but this is something that the Legislative Council cannot do, but I don't see an appropriation in here or anything like that. It's something that is within our job duties. And I think there was the discussion from the Senate Judiciary Committee really involved in trying to get sort of a nonpartisan view of what the state of qualified immunity and access to civil justice is. That being said, there may be other entities that could also do that and then also could make policy recommendations on top of that. And so if that's something that the committee would like to explore, I'm sure that that could be a consideration as well. But there are certain restraints in selecting Legislative Council to be the drafter of the report. And again, sort of up to the committee, if you still want to have those constraints on or potentially selects another entity so that policy recommendations could be made. I'm sure there wasn't a concern. It doesn't sound like that in terms of appropriation or anything within Legislative Council. It seems like it's part of your duties. Right. It's something that we would do during the summer fall. Legal analysis is something that we can do and is part of what we already do. Great. Thank you. I have a question about Section 1, which is kind of codifying the rule of decision. I mean, it seems to me that there's some really good intent here in kind of protecting and extending the impacts of that decision and especially the ways that it's perhaps distinct and separate from federal law. But I've also heard some concerns that it might have kind of the consequences of narrowing what's possible in future decisions to, you know, really confine to these three principles. And I'm wondering, I'd just like to hear your thoughts on that before we start from a bunch of witnesses. Sure. Well, when you say confined, what do you mean exactly that it would unduly, because what this does and it is narrow in its scope in the sense that it's only saying that this is the standard applies to all law enforcement agencies for Article 11 violations. It doesn't cover other constitutional violations. It doesn't cover statutory violations, common law violations. It is very specific. And as far as how it would constrain, is that what you mean maybe potentially? How would it constrain, potentially constrain a future court in those decisions where they might be looking at the facts of the case and thinking, well, there's an argument to go further here and awarding damages. But now that we've patified the Zula case, these are the, this is what, you know. Well, if the facts of the case only concern an Article 11 violation, then it would be confined to this. And if it involved any Vermont State law enforcement officer. But if there are other issues at play in that, in whatever case may be, then the law hasn't changed. It's what the court would do and undergo in its analysis based off of court precedent or other common law principles or other statutory principles. So, you know, this, again, it's really confined to only those Article 11 violations. Everything else essentially remain changed. And the current law is what it is. And the court will work through those facts, you know, as, as they, as they're pled in a court case. So I don't know that answer your question as far as it's constrained, but. Yeah, kind of. I mean, it's the precedent that would be applied anyway. Right. In those, in those cases because the as far as article 11. Yeah, well, and the real thing that this gives certainty to is article 11 violations for all law enforcement officers in the state, because the Zulu case only involved a state trooper. And so it does expand it in that sense. And the intent here is to apply uniformly to all enforcement agencies for article 11 violations. So there's been no question about a municipal. That's, yeah, or share or share. Correct. For article 11 violations, this is the standard that would apply to all law enforcement agencies. Martin and Barbara. Oh yeah, thank you. So in the standard, it seems the, I guess I have two parts of the question. It seems that in this area of law, qualified immunity, the critical. The first part of the phrase that is interpreted by the court is whether a clearly established law has been violated or not. I guess that that question is whether that, whether my reading of the qualified immunity cases is correct. I guess the second is, is that something that I would assume is being covered. In the report that legislative council is going to do. As far as really how that is interpreted in. Yes, that would, that would be part of the report itself. And I know that there was a lot of testimony on what that meant with with incentive judiciary and how clearly established law does or does not affect the current state of things, but the short answer is that yes, that would be part of the report. Let me just ask if you already know this part, even though you may be addressing it more in the report. So in Vermont clearly established law. Do they does do the courts. At this point, as far as you know, do they look at just precedent or do they look at. Statutory requirements and policy and and training, or is it simply looking at precedent. Well, in federal constitutional law and. 1983 set of actions, which are federally derived, but can also be brought in state court, you know, clearly established law is essentially you have to find precedent with almost identical facts to then apply in this case to say that. Well, an officer should have known that. That law was clearly established or that this conduct would have been permitted in order for it to have been clearly established. So you almost have to find an almost identical set of facts to apply to a current court case. And that is a very high bar to meet. There is there depending on the facts of the case, I think that there could be some. Law enforcement policies. And then other sort of directives that might be used to inform. You know, what is really discretionary versus non discretionary. And that's a whole separate analysis under qualified immunity. That is separate from a federal constitutional claim. But clearly established law really. Involves court precedent that needs to. You know, you know, you know, almost mirror what the facts of the case before the court is at a given time. Does this, is that the same with our state courts? I know that that's a federal standard. But is that how. If it's a section 1983 case brought in state court. Yes, that standard would apply. But if you look at the different permutations of qualified immunity, there is also another factor where when you encounter municipal. Qualified immunity involving municipal law enforcement officers, because the standard is a little bit different than tests that's applied. One of the factors of that test is a discretionary versus a ministerial act. And those policies and directives that I mentioned before are either something is discretionary or not. And that is part of the good faith analysis to a degree, but it is a different analysis than the federal one. And this is why I think the Senate Judiciary Committee settled on getting a report so that there was a better basis of understanding as to the different permutations of qualified immunity, how it's applied in various situations. Because admittedly it is I think probably one of the most complex legal doctrines you can explore and try and tackle. And I think that's why section two came to be. If I just want one follow up just because you said if the state court is if it's a section 1983 case, but that if it's an article 11 case, is that something that is different that you know of already the article 11 case it would be the you know if this is passed, but right now as applies to state state law enforcement officers. It would be the clearly established law that third prong clearly established law or bad faith and the bad faith is a significant departure from what's done in federal court because bad faith is irrelevant in the analysis of that. And so that's when you can get into sort of ill intent or discriminatory animus of the law enforcement officer. So that's a long way of saying that article 11 violations are a little bit different as applied to state law enforcement right now because of that third prong and how it differs from the federal analysis. And just I apologize one last I think this last question. So in the analysis that you're going to do in section two is part of that would you be looking at what kind of how far we could go as far as policy in defining what clearly established law is in other words can the legislature say that the court has to look at for instance our use of force statute and policies. Can we direct the court to do that and you don't have to answer that right now but it would be a question that I'd be very interested in understanding because we did pass the use of force law and there are specific policies and there's training and if we can point court to look at that for clearly established law I think that's something we should look into. Yeah but as far as the report is concerned since it is currently authored by legislative counsel there wouldn't be a policy recommendation as far as directing you know courts to look at the use of force statute or anything like that it would merely just be a legal analysis of really these six points that are outlined. But that being said if another entity was in charge of the report if those policy recommendations could be made. No I'm not and I'm not looking for a policy recommendation on it it's whether in fact it would be appropriate or can the legislature restrict or point the discretion of the court in this situation in that manner I'm not suggesting legislative counsel should tell us whether it's a good idea or not it's a matter of whether it's something that should be or could be on the table. Yeah that's a good question to be quite honest my my instinct is that it's getting close to the line as far as policy recommendation but you know that's something I had to be quite honest with you to have to think about a little bit more maybe discuss with my colleagues just to get a better understanding of the limitations. Yeah and I think that you know I think for instance would it come under number two existing constitutional statutory and common law causes of action you know or might come under number five but anyway you know that might be the you know way to look at it but yeah honey get back to it. Thank you. That's my question. Oh okay. Well just I'm like a hundred percent of a person here because I'm not well maybe not a hundred. So I think I had understood that the clearly established law that you know meaning that that could be used to weigh the question of whether qualified immunity applies in a in a liability case really referred to like a published appellate court decision with as you said like nearly identical essentially non debatable facts. So I could it. Can it also mean just like the underlying statute is really clear as kind of margowness was proposing and asking about and maybe I'm just understanding Martin's question but. Well it's a good question because you know I think really the way you framed it initially is the conventional wisdom as far as that you really have to find a court case with nearly identical facts to establish clear as far as the statute though. And I think as you may hear in a witness testimony there are different interpretations over what could be litigated you know because litigators will pick apart the language of a statute and until and so the argument could be made that until you get a court case that says well this is really what the statute means that the statute of itself may not actually be clearly established law even though you would think sort of from a you know from another perspective that well it's codified this is what the language is but cases are constantly litigated over the meaning of individual words all the time and so I would I think I would fall back on you really do need a court case of similar facts to say well this is clearly established or or not and and I would be hesitant to say that a statute in of itself is clearly established without sort of a corresponding court case to to talk to discuss it. Yeah Martin. Just to follow up on that then so I guess the question I would have is how I understand exactly what you're saying but how clear does a statute have to be for it to become clearly established law because you know just the situation I would give you is that right now I suppose if if a law enforcement officer went out and used a choke hold when it was not in self-defense I think our statute and the policies are pretty darn clear that that would be a violation but I don't know of any Vermont cases that have found that so it just using that as an example I guess the question is how clear do we have to be in order for it to be a clearly established law for purposes of qualified immunity and maybe what your answer is going to be in your memo is that until the court has said it's clear it's not clear but yeah and there there have been court cases and in my research there was a case in a came out of the fifth circuit so it's not controlling in Vermont but I think it gives a good kind of description over what how clearly established law becomes established and it's a high burden and says to meet this high burden the plaintiff must quote point to controlling authority or a robust consensus of consensus of persuasive authority that defines the contours of the right in question with a high degree of particularity so you know I think that is something that would have to be explored more in the report itself but I think it also goes back to it being out of case law and and and that's a question as far as how particularly you need to get in a statute itself is something that I think isn't easily answered and and hopefully the report itself dives into that issue a bit more yeah thank you we'll not be meeting after four okay