 I want to turn to H 133, please, and we do have, we'll start with Eric Davis, who is available today. Thank you so much, Eric, for being able to come back today. And I know that we do have your testimony has been posted as well. So welcome. Good morning. Thank you guys for having me back. I can see you're very busy. So I'll I'll try to get through it in good time here. For the record, Eric Davis, I'm the president of gun owners of Vermont. We are an all volunteer nonprofit advocacy group dedicated to the preservation of the right to keep bare arms. Thank you guys for not being ready to go yesterday is scheduled we went the last few days expecting some more drastic modifications to this bill that we had to testify on and we were surprised to see when we finally received it that it was just sort of a movement and a relocation of most of the stuff. Anyhow, as we grow to understand this bill, we see that it actually contains two separate issues, and that it has obvious implications for the standards of evidence used in different legal proceedings, but more directly, it focuses on the power of the court to act upon a finding that evidence has occurred in domestic relationship in this particular case h 133 seems to be an attempt to clarify the court's assumption that one of its tools is the suspension of constitutional rights, specifically the right to keep and bear arms. For the purposes of this testimony will save the evidentiary standards for another conversation and focus solely on the latter question of whether or not the court does and or should have this power. I'm very grateful for the opportunity to wait until the end to give this testimony because it's allowed us to hear what legislative counsel and judiciary had to say, as well as a few more hours to do a little background research into how this policy and assumption sort of came about. In the walkthrough yesterday legislative counsel Eric Fitzpatrick explained it as follows and I'm going to quote from his testimony here quote. If the court already has this power. Where does it come from. The answer is it comes from the inherent powers of the judicial branch of government as an independent and co equal branch of government there is inherent authority and power. This is a concept that is universally recognized that you did that the judiciary has some inherent authority just as the executive branch does and the legislative branch does. And of course there are certainly debate about what that inherent authority includes but the fact that it exists is universally recognized by the Supreme Court and quote. Mr. Fitzpatrick cited a case from 2007 and Nevada Supreme Court Halverson versus hard castle, which included language describing the inherent powers of the judiciary is being derived from the separation of powers doctrine which establishes it as one of the three branches of government now obviously legislative executive and judicial being three branches, as well as by quote the sheer existence of the judiciary and in itself. Also noted was a caveat presumably also determined by the court that the court's inherent power should be exercised only when traditional methods fail or an emergency. So it's a very broad wording there. So with limited time available. We looked up to Halverson and hard castle case and interestingly enough, we couldn't find any mention about the court's inherent authority to suspend constitutional rights, rather the Halverson case seemed to deal with the authority of a Superior Court judge to discipline a subordinate. We're unable to find a direct reference to the possession of firearms in this case and I'm realizing now as I'm reading from my paper that I did not link that case to my testimony and I apologize I'll do that shortly after I get off here so you guys can have a look at that as well. We didn't notice any references to firearms in this case but there may be some other examples of case law which do give more detail on this presumed inherent ability of the court to act in this manner and that you were just not familiar with. And we would certainly be interested in investigating that further should time allow. After pondering this a little bit more work we're left with a few questions. We noticed that in Halverson that when justifying its power to act on unspecified matters, the court repeatedly cites quote longstanding assumptions and universal acceptance that they have this power much like the arguments that we're hearing in favor of age 133 and we're left to wonder that if these powers are not as the Federation pointed out yesterday specifically spelled out by law. As in the law created by the legislative branch of government, where exactly did these assumptions of power originate. At what point in time did the court take it upon themselves to assume that they have an independent and absolute authority to suspend constitutional rights in an emergency or if traditional methods fail. Furthermore, if these powers are not specified by legislation, we're wondering how might they be challenged legally by the people as in a court challenge to this assumption. The court has usurped this power, how could we possibly expect them to rule impartially on whether or not they should have it to more narrowly tailor our focus directly to the point of this bill is to ask the question, should this be allowed to continue. And before we answer that question we should consider a few more things. If we look at existing law and 15 vsa 1104 it already gives the court authority to require the defendant and I'm paraphrasing here to stop abusing family members and pets refrain from interfering with the plaintiff's personal liberty to maintain physical separation and to refrain from contacting the defendant or abused family members. This proposed amendment to age 133 as we now know seeks to establish a section e to that wording which specifically spells out the court's authority to confiscate firearms, based on an initial pre trial determination of abuse, and without notice to the defendant. We would once again like to point out that when press for details on the authority to actually confiscate the guns in question. The court admitted that even though this wording would give them power to require relinquishment. It gives them no power to a search warrant to enforce relinquishment without probable cause to suspect that a crime has been committed. If these things hold true. And if the court has long taken the position that they have the inherent authorities to suspend a person's second amendment rights in the event that traditional method cease to work or in case of an emergency, or in this case that a ruling has been reached that abuse has occurred. Then why would the court at this point simply not assume that it also has the authority to sidestep the fourth amendment and issue a search warrant for seizure of firearms without evidence for crime. Additionally, if this inherent power has gone on challenge for so long. Why is there a sudden need for specificity. We're hearing that this inherent power is universally accepted, and that judges are in agreement, however, the fact that we are here discussing this bill as such today suggests that that might not be the case. It's also concerning to us that the one modification to this bill other than moving the placement of the language was to strip out the wording that there must be evidence or at least mention of firearms in the report for this action to be carried out against the defendant. The court's position that it would be unfortunate for some sort of incidental language to hinder their ability to reach a judgment of whether or not abuse has occurred. However to strip that language entirely and with it all safeguards on the defendant's right to keep and bear arms suggests that the court seeks to retain absolute control over the decision to seize guns, as long as the standard is met to determine that abuse has in fact occurred, and regardless of the context in which guns may or may not be involved in this particular incident. Again, let me reiterate, the court seeks absolute power to suspend constitutional rights by requiring the defendant to relinquish their firearms over a civil issue, regardless of circumstance and without a hearing. Moreover, when considering this process and the context of taking place within the framework of due process, we find it sorely lacking. Going back to legislative counsel's description of due process Mr. Patrick States and I'm going to quote from him here again. Generally, that means notice an opportunity to be heard. Here you can see that there's a deprivation happening. However, it occurs, there's definitely a deprivation of the person's firearm that is only happening because the law requires. So the question is, is there sufficient due process given that there is this deprivation is happening. And I think the answer to that is yes. The key point here is that generally speaking when you talk about notice and an opportunity to be heard, the hearing has to be held pre deprivation. And here you see this doesn't happen. The property is taken first, and hearing happens afterwards, usually within 14 days. And that is what is known as a post deprivation hearing, and that is permitted under constitutional due process requirements as long as there's a prompt and meaningful hearing as the court describes afterwards. And he also goes on to state that the court has been careful not to quantify what they consider to be a quote prompt and meaningful. Rather they seek to retain the absolute discretion of setting the time period for the defendant's hearing, and thus their due process in each instance. We live in a country whose basic founding documents are based on the principles of protecting individual rights from the horrors of uncheck government. The folks who gave us the bill rights also enshrined into our system of justice, a right to counsel, the right to have a fair and speedy trial by one's peers. And the guarantee that all 12 of those peers returned a unanimous conviction of a crime based upon evidence beyond a reasonable doubt before a person might be deprived of their life, liberty and property. We cannot imagine that the same folks envisioned a system of checks and balances that gives an absolute and arbitrary power to one branch of government with which they might suspend and reinstate constitutional rights at will over a civil matter. Well, the court's intentions seem honorable with this particular policy. We shudder at the implications of a body of government that has broad and liberal discretion to interpret its own rules of operation when dispensing justice, and then be the sole arbiter over whether or not it should have this power and I want to kind of go off script here and I want to point out that we, we understand that the motivations of this are genuine and good and that the court is attempting to help people here you know we, we get that. It's just that when constitutional rights are implied we believe there should be a much higher bar of scrutiny. Well, in conclusion, we return to our question at the crux of this debate, should the court, at their own discretion, and regardless of past assumptions have the power to suspend a person's constitutional right to keep and bear arms and do so without prior notice to the accused. After considering all these factors outlined above, we must conclude that the answer to that question is a resounding no, and we continue to oppose this bill. Yeah, that's that's all I have for you. No, thank you thank you very much and I can tell you put a lot of time into this and so I appreciate it thank you I'm glad that we were able to get you get you in today and you said you wanted to make a change or two so please go ahead and do that and we can, we can repost. Certainly well I'm just going to add some citations that I realized I left out after. Kind of late work on it last night so but appreciate you guys have me back thank you very much. Yeah, absolutely thank you. Let me see if committee members any questions. Let's see. Any hands. Nope. Okay, great well thank you Eric. Yeah, thank you. Thanks guys every day. Thanks you too. Hey, I'm major Jonas good morning. Welcome, everyone. Thank you. Can you hear me right. Yes, thank you so much. I'm happy to be here I will kind of reiterate some of the things that I mentioned when I was here previously sorry I had to hop off yesterday. And then I'm happy to answer specific questions about storage and the process for when we do relinquish firearms. But just again for the record, my name is Ingrid Jonas I'm at the rank of major and that means I'm a vision commander with a Vermont State police. My 23rd year with the SP. I actually joined that apartment to try and be a part of change and how we respond to and handled violent crime so I spent over a decade responding to an investigating violent crime it's a pleasure to be included in these discussions that you have as a committee so thank you for your hard work on behalf of survivors. I think for some context I'll just give some real numbers for DV related responses for Vermont State police so in 2020. We responded to 1304 family disturbances so that would be domestic violence domestic assault, etc. We responded to 113 domestic violence. I'm sorry domestic abuse order violations. So orders from the court that were allegedly violated 113 responses there. Six homicides last year. In 2019, we responded to fewer family disturbances 1180 94 domestic abuse order violations and five homicides. So focusing back on the bill that you are working on. We see it as really a simple bill the bill codifies what's already occurring that is the court uses their authority and wisdom to take action to promote safety, namely to order firearms relinquished and certain emergency disorder cases. We support the power of the court to promote safety in this manner and we will continue to serve and enforce orders as partners in this effort. And we frequently serve and enforce court orders as a fundamental part of our work. As I think you know firearms are a dangerous part of certain domestic violence cases and are used as part of a pattern and a course of conduct of control and threatening behavior. And so we see this as a critically important tool that the court should have at their disposal. I know yesterday, I think this is really important. And so I want to just reiterate that the commissioner of public safety commissioner Shirley said that DPS is willing to step in and assist other departments with storage to the greatest extent possible. We, I need to connect with the commissioner on this but, as you know, the firearms relinquishment procedures are outlined in 20 vsa 2307. And we DPS can help sort of build capacity around the state for storage opportunities for any departments that may need storage in their area. So I think we're working on the law that's already on the books, and that law actually gives DPS that role. So I think more work can be done in that area. But I would want to say very clearly that questions or issues around storage should not be accepted by this committee as an obstacle. And I would repeat the passing of this law it's kind of like comparing like apples and cats, you know, storage is a law enforcement ingenuity and management matter. And it should not be a viable obstacle to the work that you're doing here to promote safety. So it would be helpful for you if I talked to you about the procedure of like what happens when we do respond serve an order that has relinquishment as part of its components. I think that would be really helpful. Yeah, thank you. Okay. So, and I will just in fairness it's been a little while since I've served an order so I went directly to a member of our department who is serving who serves orders regularly. So upon the service of an abuse prevention order or temporary order in which there's requirement for the defendant to relinquish firearms. The trooper on scene will meet with the defendant and provide the defendant a copy of the order. So an actual copy of the order. The trooper will read the order verbatim with the defendant to include the section that speaks of the enforcement of firearms to the state police. At that time should the defendant comply with the order, the defendant then turns over all firearms and ammunition to the trooper. The trooper secures the firearms and ammunition and returns to the field station where the items are stored in a secure location. The station has a specific area where non evidentiary firearms are kept. They're kept in lockers essentially locked down lockers. Those items are those firearms are logged in detail into an evidence tracking system that we have it's an online system. The trooper will also document the same items the relinquish firearms in a formal online CAD reporting system, assigned with a case number. So that the case number for the firearms links into the the actual abuse prevention order or temporary order. The court may remain stored until notices received from the court that they can be released to the defendant or another appointed person. So the court may also dismiss the order which would then allow the defendant to retrieve the firearms when it comes to the station the firearms are then removed. The log is amended the online documenting system is amended to show that they've been relinquished. Sorry they've been removed. So our non evidentiary firearm locker system is monitored by a supervisor or station commander. Let's see so if the defendant is not comply with the order. The firearms are clearly identifiable in the defendant's possession. The defendant could be taken into custody for violating the abuse prevention order and plain view firearms would be seized as evidence. In addition, a search warrant could be applied for should probable cause to exist that there are firearms and other locations. The defendant deny any firearms are in their custody and probable cause exists to believe that the defendant is actually in possession of firearms. A trooper would apply for a search warrant for those firearms that are thought to be in the defendant's possession, and the court may or may not grant that warrant. Let's see if a if an order is served on the defendant where the defendant's firearms are in a separate location. Then the trooper would either make arrangements with the defendant who might give consent for us to get those or again apply for a search warrant and see if the court will grant that warrant. And lastly if a defendant showed up at the field station looking for firearms but had no documentation that he or she was authorized to retrieve the firearms, we would not obviously accept that the defendant has to have court order that shows we would verify that the court order there that those firearms can be given back to the defendant in addition to that we would run the person through a national crime information center check to make sure that there aren't any abuse prevention still in existence. And that is kind of a summary of what it's like from the road standpoint, when you're serving at order that has to do with relinquishing firearms. Thank you that's that's very helpful I have a few questions then we'll turn to the committee I see Tom has a question. You mentioned the, the CA, the CAD, the, the online system. Can you talk to us a little bit more about that in terms of just go ahead. I, I imagine that that sounds concerning to some folks. Okay. So, well, if, if there's a court order service of an abuse prevention order so we receive an abuse prevention order from the court. It will needs to correspond with the case so then it would be entered into our system where every action that we take is documented so everything from a car crash to a motor vehicle stop to a simple assault. So it would go into the system as service of an abuse prevention order or something along those lines and assigned to a member of the department was then responsible to serve the order. Does that help. Yeah I think you know I, I just I imagine some folks are wondering is this creating a registry is this. So, so that just wondering in terms of that in terms of the firearms and. Okay, well, it's more on our end even these are public records, these documents are public records there. It's our way to establish the actions that are taken in every instance, as I said everything from, you know, these prevention order to a car crash to documenting what happened what actions were taken what evidence was taken, what items were taken for safe keeping etc. It says checks and balances and way to keep track. And then if the order is, if a final order is not issued. Is that noted as well or is anything. Correct yeah so the, let's say the defendant isn't isn't around or isn't able to be located then that is tracked. And then an attempt to serve the order is dated and tracked and then passed to the next person on shift if it's unable to be achieved during that one trooper shift. Okay, thank you so this that you do this with with all your cases it's not just firearms is not just domestic violence. Okay, correct. Thank you. And Felicia and Tom. Thank you. Just a quick question for you major. At the point in which the defendant has the court order to have their firearms returned to them is there ever a point in which a fee is charged for any of that storage whether it's offsite or in BSP's capacity or other law enforcement. I'm just trying to ensure that this process would not have a financial burden. Right. Yeah, so it is my understanding that BSP is not charging any defendant in a case such as this for the storage of firearms, we aren't charging anybody. I would imagine it's incredibly rare that any department is charging a defendant. In other departments. I hope there are other folks listening that can help chime in but we are not charging defendants for storage of their firearms. Okay, and is that under law you have the ability to do and you choose not to or it's just not within your purview. So, I'd have to review 2307 I believe that it creates a path forward for defendants to be charged if their firearms are stored by firearms dealers. License firearms dealers. Thank you. Yeah, and I'll get an answer for that my understanding is that at this temporary stage. They're not charged. So I think there's a distinction between temporary order in a final order. That makes perfect sense. I think you're right on that. So, but, but thank you Felicia will. I'm going to look it up and we'll get on get Erica as well. Okay, Tom. Thank you. Thank you for your testimony major. I'll never be happy with with with information that's collected I understand that's the procedure. And, and I'm pretty sure that even if say if a case is thrown out that you probably still keep that information somewhere. Which, like I said that that'll never make me happy but but one thing I did like I like your detailed presentation of what happens to people's property. Again, I may not like, you know that it's that it's taken but it. It does give me, I don't know if the right word is some comfort, knowing exactly how it happens, and will probably quell any any questions I have about storage in the future. You know, I brought it up on, you know, more than one occasion probably more than two or three but. So, anyway, thank you for that and I guess if I ever ask any more questions about storage of firearms in the future to remind me of this testimony, but I really appreciated it. Thank you. Thank you any I'm not seeing any other hands I know we also have a joint assembly we need to go to. Okay, thank you major I'll let you continue I also note that the commissioner is here and is always welcome to chime in. I would defer to the commissioner then at this point unless there's anything more specifically I can address. Great, thank you. Thank you so much for your testimony. Commissioner good morning. Thank you chair and actually no need for the major to defer I just had this on my calendar so I was stopping in in the event there were any questions specific to me I did catch the last 10 or 12 minutes of the majors testimony I think she's got as good or better command of this topic. As she does on many things than I do so. Okay, great. Thank you appreciate it. Um, David share from the Attorney General's Office if we could hear from you very very quickly because we are being asked to sign in ahead of the joint assembly if we can. So, David thank you. Thank you madam chair for I'll be very brief I just wanted to David share with the Attorney General's Office for the record just wanted to address a couple questions that had come up yesterday I believe and I'm sorry I wasn't able to be here then as well. I wanted to emphasize the legal point that relief from abuse orders, or I sorry let me let me reverse that extreme risk protection orders are not a substitute for relief from abuse orders the processes are not the same they are not duplicative of each other and they don't perform the same a function, and they most importantly simply don't operate the same way. Let me read to you a brief paragraph from a case in Vermont, explaining the purpose of the abuse prevention statute it says from us abuse prevention statute is designed to provide immediate relief to victims of domestic violence, the statute focuses on fast temporary relief to family members in immediate danger. This goal is accomplished in part by providing inexpensive and uncomplicated proceedings that allow an abused family member to obtain immediate relief without the need for counsel advanced pleadings or full bone evidentiary hearing extreme risk protection orders by contrast require lawyers they require affidavits and motions to be prepared and filed by lawyers. I think it's fair to say that as a general rule. The more lawyers you have involved in something the slower something moves, and the point of the relief from abuse orders is really to cut out some of that. Make it more lawyerless process cut out some of the lawyers involved and allow an individual who needs relief to go directly to court, they can go to court at any time, night or day weekend weekday. And while there are, and there's an entire statutory provision 15 vs 1106 that lays out how an individual can get relief after hours. And while that is possible to do with the ERPO statute the extremist protection order statute. Again, it requires first persuading a state attorney or assistant attorney general that there is a need explaining that having that person prepare prepare documentation. It's, it's, it's not the same it does not allow for the same level of relief and just wanted to emphasize that point as a matter of law there's significant difference. And the relatively lawyerless process of the RFAs is an essential one that is not duplicated elsewhere. Great. Thank you. That's, that's very helpful. Were you reading from Benson by any chance or from another case. Oh no that case. Sorry, I should have said what that case was it is wrap the Diminel. And it's 162 vt one is is a site is the citation for it, man I can send that to the committee for for posting. That'd be great if you can send it to Evan for posting that'd be excellent. Thank you. Questions committee members. Okay, great. Well, thank you everybody. We actually do a lot of work in about an hour and a half so appreciate everybody and we will adjourn so we can get to them.