 I mean, it's just working. Yeah. It's dated February 13th, 2020. It was on 808 constitutional parameters on law enforcement use of forces and subunits. And it discusses the Graham case up yesterday. Where is this document? I don't see it on the website. It's on our web page from yesterday's documents. It is? I don't think it will happen. Oh, I'm sorry. It's an email sent to the committee by Bryn, but it could be on the website. It is not. I don't think I got it. Do you want to send it to me, Bryn, and I post it? Good thing. I can get it out of my email. At any rate, it goes through the Graham case versus Connor. And was that Lindsey Graham? That's a great question. I got a check. I don't know. Yeah, just South Carolina court. Bryn, what's the reason behind going to this case? I missed the after the second session yesterday. So the committee yesterday was talking about the existing constitutional standard for what would constitute a violation of the right to be free of unreasonable search and seizures. So we were talking about the Graham case, which is kind of the foundational case that still governs today for law enforcement use of force. So this I shared with the committee a memo that I drafted way back in February last year. It feels like a very, very long time ago. Yeah, 2020. Another lifetime. So it was just a sort of an introductory memo to the existing standard that govern use of force claims. So that's why I shared it with the committee, because there were some witnesses talking about the Graham standard, and the committee started discussing how H-145 and the existing Act 165 is really a codification, essentially, of Graham, plus some additional standards as discussed when you were working on Act 165, including the requirement that force be proportional and deadly force be necessary. The testimony from Mike Shirling and some others was to add clarity to the use of force on page 2 and 3, B-1 and B-5. And Shirling wanted, if feasible, in there. And there was quite a discussion about whether or not we needed to clarify it, because 5 is based on Graham. And that's where the discussion went. They also talked about using, adding without hindsight, which is part of the Graham case. And that came from both Shirling and Julio Thompson. Brynn, I remember you sending an email yesterday talking about that last passage and saying that it was already conditioned on a previous subsection. Are we talking about the, to the extent, feasible? Or the, or? I think it was the. Hindsight. Without the benefit of hindsight. It was the one that begins when the officer. Yeah. Page 3, subsection 5. Right, that's more drugged. When an officer knows that a subject conduct is resolved to medical condition, mental impairment. And I was arguing that that was already conditional. And you wrote an email that pointed out that it was already also conditioned on another piece. Right. So we, the committee, I testified to this yesterday. But you must have, you must have had to hop off that I'm sorry to be repetitive for the other members of the committee, that the B5, the language that requires that a law enforcement officer use information that he or she knows about the subject's conduct. That is the way I, the way, the way I described it as B1 is the standard that the court is going to use, the standard by which the court will judge all cases that come before it that have to do with law enforcement use of force. That's the standard, that's the Graham standard right there. And so all of the following provisions under B1 are directives to, are various directives to law enforcement. But any use of force case that appears before the court is going to be judged by that standard. And B1 is the standard, is the feasible and reasonable alternatives standard. So a law enforcement officer's use of force is going to be judged based on whether or not feasible and reasonable alternatives were available to the use of force. So it was my testimony that that, that feasible requirement already exists because it's built into the standards that set off B1. Right. Thank you. That's, I remembered that from your email. So I don't know why we would add if feasible at the beginning of that. No, I think that five. I think that the ultimate decision was if it's added it would be added in the last clause there. The officer shall consider that information when determining. The officer shall consider, shall if feasible consider that information because I think Julio, one of the things he said is that if, and I think that Brynn disagreed with this and I'm torn, but he, what he seemed to indicate was that if the court said to the, if there was a case and the court said, did you consider the, his mental condition or whatever before you acted? And the officer said, no, I was shot. I didn't have time to consider it. Then the officer has violated the state statute because he didn't consider it because it says there shall consider. But it only says that they have to take it into account. Yes. But what he, what he was saying was that there are instances when you don't have time to take that into account. You're shot. Well, I think he didn't say you were shot. I said, they've opened fire on you. You're a police officer. Somebody's opened fire on you. And is it feasible at that time to take into account the mental condition of the person who's shooting? Right. That's what he said, yeah. In the case that he described though, the officer had been shot. He was wearing a bulletproof vest, but he had been shot at the door and fired back and all of a shot of died. And so when he was questioned, it was to consider it. And he said, no, I was, I was, you know, it was immediate reaction to. But if we go back to B1. Yeah, in B1 they would like benefit of hindsight. Well, in B1, I would say that already covers what the situation you're talking about. It's not feasible to use because you're shot. So in other words, I feel as though what Commissioner Schirling would like is as many repetitions of the phrase if feasible or when possible, because it serves overall to weaken the guidance in the law or the mandate in the law. But I mean, I feel as though it's pretty clear and I think I hear Bryn agreeing with this that that's already covered in the language and the house didn't add it, I would assume because they didn't see a need for it. So, you know, I put it this way. If it's a trade-off between hindsight and adding if feasible, I would prefer if feasible rather than in hindsight because I feel like as I said yesterday, the in hindsight piece sort of leads to an interpretation that the defendant, it sort of leads a retrospective consideration in terms of a defense for someone brought under that statute. So, again, if it's one or the other, I would prefer it to be a feasible, although I think it's redundant. Well, I think that it was in two different places though. He didn't put if feasible itself. And I do, I would like to have Bryn just comment on the case that Julio talked about. That if the guy is questioned and it says here that the officer shall take that information into consideration, into account when determining the amount of force appropriate. If the guy in the case that Julio used, the guy is shot. The judge says, did you take that into, did you take his mental state into consideration? The guy says, no, I didn't. I was shot. I just, I had to do something that Julio's contention is that he has now violated state law because it says they shall take it into consideration and that a sworn officer has to uphold state law. So would you, that's where I'm having a hard time here. Sure. You know, I think that what I testified to yesterday is that I think that that perspective is looking at B5 in a vacuum. It's looking at B5 as if it exists all on its own, which it doesn't. It's a part of this new whole section of law, which is 20 VSA 2368 standards for law enforcement with the force. And the way that the statute is set up is that it provides in, you know, first it's definitions and then subsection B says, here's the use of force standard. And the first subdivision under B, use of force standards is the test that a court is going to use when it is determining whether or not a law enforcement officer's conduct was reasonable. So, and the test specifically provides the second sentence, law enforcement officer's failure to use feasible and reasonable alternatives to force should be a consideration for whether the officer's conduct was objectively reasonable. So that's where you get the question. The court's going to ask the question, was it feasible to use an alternative to force? If it wasn't feasible, that's going to go towards the court's analysis. So I just, I read this as a, I'm reading it holistically because I think that's how a court will look at the, will look at the statute. I think it will look at the statute holistically and it won't look at each individual subdivision on its own. And I think that if you're worried that the court will look at each individual subdivision on its own, then I think that you should include that language in each and every one. I don't, you know, I think you should, I think if you hone in on one of them for the inclusion of the additional language when feasible, you may want to look at each individual subdivision to make sure that you don't want to include the language there. Cause it's just my position that if you add the, if you add those words in one place, then you are adding the court will look at that. They, the court will assign meaning to every word that you add. So if you, if you add it in one place and not another, then you should just think about the other questions of that. I see, yeah. Could you explain a little bit of prior to Graham in your memo in state since Graham and courts review law enforcement, use of force for an objective, reasonable and standard, but prior to Graham, federal courts reviewed claims of excessive force by police to a diverse legal standard, often emphasizing the officer's subjective mental state. For example, courts would look to whether the force was applied in good faith or for the purpose of causing harm. And so... Yeah, I was just trying to... Wouldn't adding some of these, some of this verbiage put us back there? The, when you asked that, do you mean when feasible? Put us back to Johnson very, the glick or the good faith, you know, if you use in hindsight in terms like that, wouldn't you be moving away from the objective, reasonable and standard? Well, the Graham court was really the court that articulated that phrasing without the benefit of hindsight. I think the reason I put in that prior case law was just to sort of give a little bit of history of how courts dealt with these types of cases before Graham was decided and to emphasize that the ultimate outcome after Graham was that courts started looking at what a objectively reasonable officer would have done in that situation, as opposed to looking at the individual officer and saying, well, did you mean to, did you have good faith, did you have bad faith? So that's really why I set it up like that. And I think the testimony you heard yesterday was that the Graham court talks about what is objective reasonableness and they emphasize that objective reasonableness is based on what an officer and objectively reasonable officer in the same situation with the same information, how they would have behaved, how they would have reacted. So that's where the, without the benefit of hindsight language came in. And, you know, as I, I think Senator Bruce missed my, what I said about the benefit of hindsight, which was just that I reminded the committee that when you were working on the definitions section of Act 165, you thought about the definition, you thought about the, without the benefit of hindsight language that Graham articulated and tried to incorporate it in your definition of totality of the circumstances since that definition means all of the facts that were available to the law enforcement officer at the time. So that's why I've testified that I don't think it's necessary to include that particular language. I understand that you did hear some testimony from witnesses saying that if you don't include it, it may be a signal to the court that you're moving away from Graham. And, you know, I don't necessarily agree with that because I think that you don't need to have every single phrase from the Graham decision in order to signal to the courts that you're using an objectively reasonable standard, especially if you've got a clear set of definitions that indicate to the court that the facts they should be looking at are only the facts that the officer had at the time. I think, yeah, I guess might go ahead. We get hung up here and then we forget section four. We need to make some decisions there to go ahead. And then Jenna, I was just going to say, I think Commissioner Scherling was talking about these changes he wanted in terms of clarification. I don't see them that way. I think it's very clear as written what he is seeking to do I think is to repeat and emphasize certain things by, you know, so that would be one way of looking at it is to repeat for emphasis. Another way to look at it would be to weaken the ability of a prosecutor in these instances. And that makes sense from his perspective that we would get those kind of suggestive changes. I'm just saying, especially after hearing what Brynn is saying, these points are already covered there, but if we go in and we double down on them, we're essentially steering an interpretation of what we're writing. So I keep mulling this over and I still am thinking about the example that Julio gave us. And in the totality of the circumstances, it says all facts known to the law officer, enforcement officer at the time. The law enforcement officer at the time knew the guy was having a mental crisis. He knew it, but he still had to react the way he reacted. I mean, in that split second decision. So he knew that there was a mental crisis going on. So in five then, since he knew it, does that affect his defense of his action? Because he did know that the guy was having a mental crisis. I don't know. Phillip, you used the term yesterday reacting to the sword. Right. And I keep getting this thought in my head that when an officer is called to a location, if there's a mental condition going on or some developmental disability that is causing the incident, it's pretty common for the dispatcher to get that information immediately from whoever the complainer is. So the officer is on their way being forewarned that there's some kind of mental situation going on. But when the officer arrives there, he now has arrived there knowing that the subject's conduct might be the result of that situation. But he's immediately faced with someone coming at him with a knife or a sword. This shawl has me somewhat nervous and I'm listening to a friend trying to wrestle what happens if I'm in court representing an officer who's now been charged with a murder or attempted murder as a result. And what do you do with that information in the instant you're facing lethality? And I'm not sure. How do you take it into account? Well, how do you take it into account in that split second when you arrive and you're defending yourself? The point I was making yesterday was you take it into account, but it pales beside the other consideration, which is that the person is challenging you with a sword. So that's why I think shawl take into account, it sounds strong because there's a shawl but it's actually incredibly weak. All it says is that you will take it into account. It's very difficult to prove that somebody didn't take something into account. And be one. Just for the sake of the argument though, put yourself. If you go to be one. Yeah. It covers exactly what you're talking about. It already uses the word feasible as the standard. So. But it puts a burden on the officer, doesn't it? Yes, it does. Because the reason why we're passing this law is because people are getting killed by police officers. That's, I feel like we forget that all the time and we get locked into a mindset of, gosh, an officer might be wrongly accused. And so let's rewrite the law around that. The whole genesis of this was people with mental conditions being killed for no reason and people who were black and brown being killed for no reason. And so what we set out to do was try to create a standard that would reign in abuse of use of force. But I feel like we constantly segue back to the horrible possibility that there might be a prosecution for someone who kills someone without needing to. Just because they don't take into account the fact that the person is not in control of their mental state or the fact that the person is black. I just wanna point out that we talked yesterday about the training sequence in the Derek Chauvin trial just yesterday, they used the fact that he had been trained in the chokehold to defend him. So we were talking yesterday about whether we would lift the ban on training. There you go. That's what we're doing now is seeking to weaken all of the already somewhat tenuous mandates that we've put in in the last year. And I have a problem with that. Let me, can I just comment that from my perspective, the one thing that we do know is that we have seen rather than a de-escalation of situations and escalation of situations. If you look at the case in Minnesota, you have a $20 bill. You look at the case in Georgia of the guy shot at a, he was allegedly drunk in his car at a Wendy's parking lot. He ends up getting shot in the back. We have an escalation rather than a de-escalation, not proportional to the event. So we're talking about an officer being shot at. In the case of Floyd, we're talking about a guy being not compliant. In the case of Georgia, we're talking about a guy who allegedly tries to take the officer's taser, I believe, right. So, more, I'm in agreement with Phillip because of those two situations when I look at them. We got already covered with the totalitarian duality of the circumstances. So I think that, and it's also covered in number five, makes clear that it's the use of force. I think we're trying to get to a proportional use of force. If the officer's being shot at, obviously, that's much different from a person refusing to get into the police car and then being killed. That is. The one right here where the guy gets shot and it looks like no matter what is the decision by anybody, he will still, he still will be, could be charged this way because it's unconditionally, it seems like. The officer or? The officer, yeah. I mean, I understand what Bryn is saying and to just take it on faith that they'll do the right, that they'll look through this thing as carefully as she has. Well, it's a reasonableness. I actually have to say that I, Phillip, take exception to your characterization that the commissioner is trying to weaken this. I don't think that's true at all. I think that the testimony also came from Julio Thompson at the AG's office. And so I don't think, I think that really what they are driving at is clarity and it might be confusing to put that in for clarity as Bryn has told us because it would be there and not in other places. But I think that saying that he wants to weaken this and kind of implying that it's for the defense of the law enforcement officers, I can't agree with you at all on that. And I do think that as Joe just pointed out that person is on their way and they're already, what we heard from the chief of South Burlington yesterday was that they're taking into account the de-escalation methods on their way. The dispatcher gives them the information and says, somebody's having a crisis, gotta go deal with it. So they're already thinking about that. But when they get there and they're confronted with the knife or the gun or the sword, they don't have time at that moment to take into account what they're going to, they may have all the best intentions in the world before they get to that point. I'm gonna de-escalate it, I'm going to calm him down. And then they get there and the guy shoots him. And at that moment, which is what we're talking about here at that moment, they're supposed to be taking that into account. So I can see it either way. I just don't want us to characterize them as wanting to weaken our position here. Yeah, I wanna take in with that too because we are beyond the conversation of someone who is being detained. That's not what this is about. The question here is whether or not an officer immediately confronted with lethality has to specifically say that they took into account information in that split second. And I'm not 100% comfortable. Brynn, I guess I'm gonna come back to you and say, if the officer has been given information ahead of time and knows there is a medical situation happening before they ever get out of their car. But at the moment they get out of their car, if they are immediately confronted with lethality and don't take into account, because this says shall take into account the amount of force necessary, are they protected in your mind by subsection one? Our witness doesn't have much time, she's arrived. Oh. So you could answer that question briefly and then we'll come back to this discussion. Sure. So it's been my position all along that because B-1 articulates the standard that the court will use in determining whether an officer's conduct was reasonable, they're going to use the analysis of whether there was a feasible alternative for every situation. Even a situation where an officer new information going on to the scene. Thank you. Uzana, thank you so much for being with us. I know you're limited time. We look forward to hearing from you and you're on two screens, so glad to see you in person. Thank you. First, I have to offer my sincerest apologies for being late. I was caught up in another hearing and then there's stuff after. There's only so many things one person can do and we're asking you to be in 17 places at once. Luckily we're assuming so you don't have to climb stairs or run around. Thank you for joining us for a few minutes on this one. So I know that you all have already taken testimony from a number of witnesses on 145. You've heard the admins position. You've heard position from a couple of the advocacy groups and of the other law enforcement, law related groups. So I don't have a tremendous amount to add. I know that this is work that's been continued from last session and so a lot of the major changes have already been made. I note that you all have had discussions about things like hindsight, usability, training on choke holds, et cetera. And those are some of the things that I thought I could just pop in and weigh in on for whatever that was. Yeah, please. Okay, so on the question of training for choke holds I know there was a, it's an odd position to be in, right? We don't want people using choke holds, but we're also saying that if you really, really have to then okay, you can, but also we don't really want to encourage you to do it. So should we even be training on it? But if you're not being trained, you're not doing it right. And it's just so strange to think that there's a proper way to asphyxiate a person, right? So I understand the difficulty in that. I know that the ACLU has testified that they don't want to propose language to allow for choke hold training. I'm inclined to agree with that. And it's a difficult place to come down. It's difficult to come down on one side or the other here. But I think that the potential for increased use based on recency or the appearance of it being allowed through training outweighs the benefit we could get from teaching people how to do it properly. I don't know if it makes sense the way I phrased that, but I hope it's the same, okay. So I would probably agree that it's perhaps not to train on that, yeah. Feasibility, I do note that DPS has testified that section B5 currently says that officers shall take into account if subjects conduct as a result of a certain list of items or conditions. And the proposal was to add when feasible. I personally don't oppose that. I don't think it's necessary. And I think it might be a little too permissive. I appreciate that clause in its current form because it requires taking certain things into account, especially like language barrier, which is listed in there and is very much a racial justice issue. So, yeah, I'm not certain that feasibility is necessary there, but if it were included, I think the harm would probably be minimal. The last one I wanted to note was without benefit of hindsight, section B1. As it currently reads, it says that objective reasonableness is determined by what an objectively reasonable officer would do in the same situation. The proposal was to add without the benefit of hindsight. I know that others have already testified on this and that phrases like totality of circumstances implies without the benefit of hindsight and that the sort of temporal state there is implied. I'm not certain that it's necessary, but again, I don't oppose the addition of that language. I do recognize that we're talking about incorporating different standards from Graham and whether the exclusion of one standard somehow creates a new standard in so doing. And I think you've heard from real experts who have weighed in on that, so I'll not give an opinion on that, but I do think that when it comes to that language, it's probably not needed, but probably won't hurt us if we include it. That's what I got for you. Great, any questions for Zana? Very helpful. Any other comments on the bill at all? We were a little surprised at the word in section four, the words burglary and robbery. And that troubles me a great deal, frankly, that I got through the house with that because I'm thinking of that case in Georgia where three people killed the guy who was only going into a vacant house to get a drink of water, but may have, they thought he might be stealing something from the construction site, but there's no, I mean, even this seems to allow that. Yeah, that was another curious note that I recall from previous testimony you all had received. And the tricky thing, well, first of all, with robbery, there's actual or threat of use of force, right? And it's usually against the person. So that's a little bit easier. Something like burglary is different. We often, people often equate it with breaking and entering, they're different because there's an additional intent element to commit a crime inside the structure. So that makes it a little tricky because if you think someone's gonna burglarize a place, you don't know what they intend to do there. And if you kill the person, then you might just be killing for a normal being, a normal breaking and entering if there was no actual intent to commit a crime inside the premises. It seems as if it is a great concern and I think perhaps that language should be amended because otherwise, I think the example used yesterday, what you were saying, the person broke into a shed. Is that really enough? And when we see so often people who are described as suspicious, one of the things that people tend to have in common when they're described as suspicious is they're often brown. And so I just, I feel very uncomfortable with the leeway that that could provide as written. Several years ago, when we wrote a statute, I think it was under youth offenders. It took burglary into an occupied dwelling and made it so that it hadn't to be actually occupied. Yeah, that's the expungement statute. Is that where it is? Yeah, okay, I know it was somewhere. And I think you may wanna try that so that it's burglary into an occupied dwelling is actually occupied. I mean, if somebody breaks into my house at three o'clock in the morning, I think I have a right to take some action. On the other hand, to breaking into my garage, there's nobody in there. I'm not sure we would require the same action. Well, how about if they break in and you're not there, but then you come home and then... Well, that was an occupied dwelling. But wasn't that... I think that's how we worded it. We left it at that? I don't, yeah, I don't remember exactly how we worded it, but I think we should look at that. And I don't want to spend some self in their own home when someone came in before or came into their garage, even, scared. I'm sorry. Go ahead. I think also a lot about the protests for justice that have been happening over the last year and the incredible focus that people have placed on things like property damage. We've got people saying things like, well, it's a shame they're killing civilians in the street, but they really shouldn't be destroying property. As opposed to saying, well, it's a shame that property is getting destroyed, but we really shouldn't be killing civilians on the street. And I think that in this country, we have gotten to a point where we tend to center the protection of things in a way that we are now justifying a lot more harm than is necessary to protect sneakers and TVs and rakes and shovels. And so I think about the implications of occupied dwelling versus any kind of a structure and what kind of leeway are we giving to people to protect persons versus property? And if we're talking about things like lethal use of force, we really have to ask ourselves, what's worth killing over? Yeah, especially because it's not a very nuanced piece of law. It says the person shall be blameless if they kill someone in the middle of a robbery or a burglary. And it's just cut and dried. It's like just get out of jail free if you can say that you thought they were committing a robbery. Sometime in the 80s, a representative posed a bill that would have allowed you to shoot somebody for coming onto your property. And the headlines were of former Senator Aluzzi saying, calling it the shoot your neighbor bill. And it's an interesting article and obviously much for some of these current discussions, but certainly it's somebody we don't want to have a shoot your neighbor bill here or you described it as suspicious. Somebody suspicious in there breaking into my shed. So it gives me a right to do it again. Thank you very much. I know you're very busy. We'll try to find our way around the mining robbery. All right, thank you. Thank you, sir. Well, that's another challenge. It's another challenge. Well, the house is like this. You know, in there, what did we have before? What did we have before? Was it burglary and robbery before? And current law? Yes, it's in current law. I did have a suggestion about this section if now is a good time for that. Yeah. I would be curious to hear from some other witnesses, prosecutors and defense attorneys about the extent to which the statute is actually used how it influences charging decisions or if it's used as a defense in these types of cases because the suggestion I have would be to sort of line up the language with our jury instructions for self defense. So at the end of subdivision two, add language like if the person reasonably believed they were in peril of imminent bodily harm or something similar to that, just to make it clear that they have to be in fear for their life in order to justifiably use deadly force on a person. And reasonably in fear? Yep. Yeah. Well, then if you did that, then why would you need to? Right, I think that's why I'm asking it would be interesting to hear from prosecutors and defense attorneys about it. I mean, one basically says that. Yep. It's a just and necessary defense of his or well of the person's own life or life of and why we leave it. You know, what if I want to protect my? Marley. My dog from being killed. I do that. I mean, I don't want actually, I don't want to use Marley. What if I want to protect? I'm having a cup of coffee with my neighbor. Can't I protect him too? He stopped over and somebody is, I feel I need to defend him. This thing, one limits me to certain members of my family. That's a good point. I mean, I think there could be an argument that you could fear for your own life if you were having coffee with your neighbor and your neighbor was not allowed to be attacked, but I see your point. I just want to be careful if we went down that road because there's been a very polarized argument about whether or not good guys with a gun should be able to stop bad guys. And so you do have people who are, especially in open carry states carrying pistols and then they spot someone, they believe there was a case where someone was shoplifting and they pulled a gun to stop the crime if they were to kill the person. So in other words, in your situation, Dick, if we expanded to neighbors, how far does the concept of neighbor expand? If it's in two, and if we keep two, in the forceful and violent suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, and what we have to do is redefine burglary so that it's not just the shoplifting because shoplifting is burglary, right? Is it? No, I think that's different. The elements to burglary are different. We're about robbery, how do we define robbery and burglary? Oh yeah, let me pull those up, hold on. I just concerned that we're going down a rabbit's hole here with burglary and robbery and having it similar to committing murder, sexual assault, and aggravated sexual assaults. I would go back to Zuzana's point. If the person is in fear for their life because of the burglary or robbery, then it seems like it should be here. If it's just that they're spotted stealing a thing or in the case of George Floyd, accusedly passing a $20 bill that's counterfeit, should you be able to kill someone observing those crimes of commerce or property? And I would say no. It's just a question for me of which robbery or burglary involves more of the threat to the person occupying a dwelling, I guess. Back in the day, they used to cool a pie out on the front porch. Right. Shouldn't you be able to murder somebody for stealing your aunt's pie, sitting on the front porch? Then Huckleberry Finn would be dead. I'm just, you know, but that's robbery or burglary. Yeah, yeah. Is it not? It is. That's for that. So my own point here, I think we're getting far afoot. I'm at fault for that. We need to better define burglary and robbery. Definition. Couldn't one and two somehow be combined so that you're talking about justifiable if there's a fear of your own life or somebody else's life? And then just get rid of burglary and robbery and all of that. And just if somebody is in fear of their own life or the life of somebody else, I don't know why we can't just combine one and two and make it. Well, let me give, it wasn't death, but a former actual Patriot, New England Patriot football player and another man came across a woman being sexually assaulted and they grabbed her, grabbed the guy attended to the woman and held the Salem for the police. And of course, the guy was in big line, Minnesota, he was 300-something pounds, and I'm sure the Salem was terrified, but they held him. But if, what this section two does is allows you to do that if you're witnessing somebody being attacked or sexually assaulted, so not aware. And I think what Jeanette's saying accounts for that. And Bryn, correct me if I'm wrong, when you proposed your language, were you thinking about eliminating the list of crimes and just using the standard or were you talking about adding that to the list of crimes? No, I was thinking about adding it. I see. I think Jeanette's right, it's for me at least, it has to have the element of threat to your life or the life of somebody else. Otherwise, why would we allow you to kill somebody if it's a lesser threat? It's even wounds another, W-O-U-N-D-S wounds another. Not just. Yeah. When I look at the language we struck about mobs and riots and it has originally written it was just a super expansive statute. It was sort of like, there are all kinds of ways that you could be justified, let's make sure we include them all. And I feel like now in hindsight, there it is in hindsight, we're going back and looking at it and realizing that it opens up so many loopholes for the defense. But three was limited to officers or military. Right, but I mean, that was the language I was most surprised by when we saw it because it seems, if you could say there was a riot going on, you could do anything. Or if you were serving papers. So I just sent the committee the two statutes that you're talking about now. Burglary and robbery. Have a sense of what the elements are. But as you heard yesterday, robbery contains an element of violence and burglary contains the element that you have to enter a dwelling or some other structure that you know that you are not licensed to enter. You don't have permission to enter with an intent to commit a crime inside the structure. I guess that's the one that gets me because that's the shed one. Yep. And it's also, it includes. It could be two kids going into the dugout to smoke a cigarette. Right. Yeah, if they're underage, it's a crime. Well, you've got to have the intent to commit a felony, petite larceny, simple assault or unlawful mischief. Oh, okay. What's petite larceny? What's unlawful mischief? Petty larceny. I got charged with that a lot. Or accused of it, I should say. Yeah, we don't, I think we'll have. Well, isn't Petty larceny shoplifting, Bryn? It could be, to Mr. Mayor. It could be, but again, that element is required that you have to either enter knowing you're not lawfully allowed to enter. It can't be something that's open to the public like a store where shoplifting happens. Or you have to, I think there's another element that, so- But you have to go into the dugout to steal the gloves that are there. My brother and his- The baseball gloves. Best friend were caught burglarizing people's sheds. And they did it because there were things there that they could use or sell and they weren't gonna encounter anybody. So they were intending to have it be a form of burglary that would be the least disruptive to other people. But if I think back on it, you know, he had to pay the money back to the guy that he stole from and he had to go apologize to him. But what if that guy had killed him? Under this statute, he would have been perfectly justified. So I don't know. Well, that's where Bryn's language would come in that he would add in the jury instruction, right? Yep. I would like to hear as Bryn suggested from people, how often this is used if it's ever, ever even used. Maybe we should just get rid of it. I don't, again, if you could also send us the language we used in the expungement statute regarding the occupied building. Sure. So look at perhaps using that for the burglary. Yeah, it's, once would be too many if it got used inappropriately. Yeah, I still think about it. There's no reason to believe that it couldn't happen here like the case in Georgia where the guy walked into a building under construction, also under construction and was going to get water while he was out. Dick ends up dead. Can I, oops, go ahead, Jeannette. No, I was just gonna ask, is this the statute that would be used in the instance of a domestic violence case where either partner was in fear for their life? Is this what would be used or is there something else? We, I'm sorry, I didn't hear the first part of your question. Yeah, is this the statute that would be used in the case of a domestic violence where one of the partners was in fear for their life, they'd been beaten repeatedly and now they were in fear for their life and so they shot their partner? Is this what would be used? I need to check the domestic violence chapter to make sure there's not some specific defense that's available there. Okay. I don't typically work in those statutes so I don't know what's stuck in my head but I'll check and let you know. I just wondered if that was an instance where it would be used? Simple little bill. Simple little bill 3.0. Yeah. So I just sent you the language from the expungement chapter about occupied dwelling and it refers back to the burglary statute and it provides that it can be expunged as long as it did not constitute a burglary into an occupied dwelling and it refers back to the burglary statute which defines occupied dwelling as a building used as a residence either full-time or part-time regardless of whether someone is actually present in the building at the time of entry. That goes back to Alice's question I think about when they went in there was nobody there but then if somebody comes home. Yeah. I mean, this is clear what it means even if someone's not there you're it's an occupied dwelling. Well, you could just simplest thing would be to just describe you know, burglary into an occupied dwelling. This one, this is a good definition here because the one about occupied dwelling. The one that Bryn just sent us? Yes. Yeah. So it's fine. Just a question, Bryn. If I'm passing a neighbor's house and I see that I know they're away and I see somebody in their house would this allow me to shoot them? I see, I mean, that's the direct reading of it. I don't think that there's anything in the language that would require it be your own home burglary into your own residence. So what makes me uncomfortable about this is that it does seem to empower somebody who if you think about Trayvon Martin was killed by a guy who wanted to be a policeman and so he set himself up as a kind of self-appointed neighborhood watch person and then he followed Trayvon Martin after he got out of a store and chased him down and struggled with him and killed him. And so I guess the problem I have here and I would go back to Susanna's testimony if there's an unarmed person and they've gone into a dwelling, they've committed a crime, I'm not justifying it but do we wanna say that a person is to be held blameless if they go ahead and shoot that person may not be their house, may not be any threat to them. So that's where my problem with this piece lies is it's not based on threat. That's why I liked what Jeanette was saying because it feels like there should be a threat to the life or the health of yourself or another person if there's not, that should be the test of whether you're allowed to kill. Are we talking about all people or just law enforcement? I'm trying to figure out how- I'll call people. So this bill deals with law enforcement and are we now- They're also, no, it's what's in the bill right now currently as it came from the house deals with justifiable homicide. What am I missing? In section four of the bill- In the course of- It's on page 13 of your hard copy, page six, I'm great. Remember, Joe, in the course of putting together 219, I think it was, or 119, we realized that the justifiable homicide statute had wildly expansive language and we were gonna hold off on it but then the house went ahead and struck four or five sentences from it. And so now we're just continuing that discussion of it, I think. I don't have my hard copy here, I'm at home. And three does deal with law enforcement but one and two deal with everybody. What was the law before this was changed? Was this whole thing changed or- No, no. In the law, burglary and- It's, yep, it's there already. And if you remember, the idea was to change that subdivision three, which sort of has this probably unconstitutional provision that law enforcement can kill or wound another in the course of their duties. And so the original idea was to change that provision. And then as the committees were looking at the justifiable homicide statute, you realized that there was quite a bit of outdated and odd language. So you updated the language and subdivisions one and two without really amending the scope of those sections. So now you're talking about amending the scope of those sections. Cause I think you were really, you're mostly thinking of it in the context of law enforcement when you initially- Could you try an amendment for us to look at the next time we take the bill up? Sure. That would make it burglary into an occupied dwelling and putting your language of pure instruction in. In addition? Yeah. Okay. So we can look at something as opposed to this. We'll do. The building, the definition for the purpose, the burglary into an occupied dwelling is the same as the residents. House passed a bill on April 8th, 428. The rent drafted. What number did you say? 428. It basically all it does is add for the National Guard to the, to your would have an enhanced penalty. It also removes an element that the prosecutor would have to prove in order to successfully bring. Yeah. I love you. I should have you walked through the bill. Okay. I'd be glad to. Does everybody have it in front of them or would you like me to put it up on the screen? Okay. So as Senator Sears just mentioned, it is pretty straightforward actually. Changes that it makes to the hate motivated crime statute are pretty straightforward. So this is the section of law that a prosecutor can bring in addition to another crime as a, as an enhanced sentence. So just adds a subdivision or a subsection heading there for enhanced penalty. And then you'll see on down below. I don't know if you have line numbers on your document, but there's a, there's a structure word maliciously. Can you see it, Senator Nica? I can't. Okay. Would you like me to share my screen? Why don't you share the screen? The screen, the screen. The screen, scream? Screen, the screen. Be very quiet. I thought you said scream. I did. I meant screen. I said scream. I just have to pull it up. Give me one moment. I was trying to imitate. What's his name? Elmer Fudd. No, the scream. Oh, oh, Monk. Yeah. Monk's the screen. Okay, hold on. Quick story. I waited on Elmer Fudd one time. I was working in a restaurant and the hostess said, I just sat you Elmer Fudd and I laughed. I walked over to the table and it's this little short man with a little hat. And he looks up at me and he goes, hello. Hello. Hello. Hello. Can everybody see H428 now? Yes. Okay. So you'll see that what the bill does is it strikes the word maliciously right here. Partway, partway down the page. So this essentially removes the element that a prosecutor would have to prove that the person's conduct was motivated by malice. So instead of having to prove that the person's conduct was maliciously motivated by the victim's protected status, the prosecutor would just have to prove that the underlying crime was motivated by the victim's protected status. Also, they've added the words or the National Guard that adds the National Guard to the categories of protected classes under this enhanced penalty. So the U.S. Armed Forces are the Army, the Marine Corps, the Navy, the Air Force, Space Force, and Coast Guard. And then the Army National Guard and Air National Guard are reserve components of those services and they operate in part under state authority. So the National Guard really has a dual federal and state role. So the House Judiciary Committee wanted to specify that the National Guard is included to just eliminate any uncertainty about that. To ensure that the statute covers those individuals. And then subsection B adds to the hate crime statute and annual report requirements from the Executive Director of States Attorneys and Sheriffs, Attorney General, and that annual report is going to come to the Judiciary Committees. And detail for the prior year, those incidents that are reported to the National Incident-Based Reporting System, the detailed categories of bias motivation and types of offenses that were coded with an offender bias motivation. Also, that report has to detail any convictions that were established in the criminal division for which the sentence was enhanced under the hate motivated crime statute. And also any reported bias incidents that resulted in a final judgment in the civil division. And then subdivision two just creates some parameters on this report. So as to the extent feasible, the report shall include demographic information about the defendants and protect victim confidentiality when the statistical information is maybe identifying. So if there's such a small number that victim identification is possible, they should protect that information in the report. So just a little bit of background, this reporting requirement was initially a part of H-128, the Gay and Transpanic Defense Bill as it was introduced, that the committee wanted to change it, amend it and work on it a little bit more. So it got moved to this bill. It seems, is that information readily available or is that going to take a lot of research to get some of that information? So the language was worked on with several stakeholders that would be responsible, including the Attorney General's office and the state's attorneys. And so they really worked on crafting this language. So I'm sure you'll hear from them when you hear about this bill, but I think that this information, there was testimony that would be challenging to get it, but there was some pushback from the committee that they really wanted this information. I think it's important to find it in whatever way we can. So this was the language that they came up with that they'll be able to gather. So I'm sure you'll hear from them. So the real issues are the striking the word maliciously in this and in the section two, Burning Cross or other religious. Right, can I ask a question about that? So this whole report thing, could you repeat what? Yeah, go ahead, ask a question about burning crosses. Well, my question is clearly we know the origins of the why we don't want crosses burned or but why would it be limited to burning if somebody hats apart a religious symbol at a church or someplace else? I mean, why would we limit it to burning? I'm just curious. I know that that was what it was, but... So cross burning has been found by the US Supreme Court to be constitutionally outside the protection of constitutional speech because it's intended. There's a long history of cross burning as intending to threaten the life of certain people. So it's sort of been specifically targeted as non-protectable activity. So state criminalize it. All right, I get it. That answers my question. Thank you. Sure. Why do we need this report? I should ask the witnesses. Yes, you may also want to hear from the, maybe a member of the House Judiciary Committee. I can tell you the testimony was that that they just, like all of the other bills that are moving this year and previous years about really wanting to make policy based on data. They felt like there wasn't access to this type of information and they wanted access to it. Well, but they went ahead and changed the law. I mean, if you're really looking for data to make the law, then you wouldn't have changed the law until you got the data. Not arguing with you, Bryn. I know, I'm just trying to be clear. And I think that what I'm trying to say is this report initially came up in context of the defenses based on victim identity bill. So it was really initially started out as wanting to collect information about any kind of cases that may fall under that bill, those kinds of defenses, defenses based on a victim's gender identity or sexual orientation. So I just want to be clear about the genesis of it. May I ask a question about this report? So just remind me what demographic information covers and also if all our reports, because this says annual report, does that mean it isn't subject to the five year sunset? Right, that's correct. And also if you'll note that it's placed directly into the statute, so it would be an ongoing requirement. Okay. And remind me what demographic information covers. That would be like the age, the race information like that of the defendant. Would it include things like the place where you lived or the, I mean... Yep, probably so. It would be information that the courts have access to. So I imagine that their residents would also be included, yes. Okay, thank you. We have listed as witnesses the Attorney General, State Attorneys, ACLU, and Rebecca Turner and Zana Davis and somebody from the Human Rights Commission. Sound like a quick thing we could do next Friday, Peggy? We have from 10th, 45 to 11th, 30 free. Yep, that sounds like a way to fill that, if it brings me. I don't think it's going to go as fast as we think. Why? Easy, I think the report is the piece that's... Well, take the report out. Yeah, I think it would be. Well, I mean, it is a way to get data, but this is like overboard. Right, so let's take the report out and focus on moving the word maliciously. You know, there's a difference between requiring a report and asking people to report to you about certain data that they have. And when we require a report, it's this big deal and people put it together and they submit a report but sometimes we can't get the information we want by just asking people to report to us. I'd rather focus on taking out the word maliciously and I don't know how art... I don't see that adding the word or National Guard is a real... Seems like that's technically the way. So the focus would be on the word maliciously and you're taking out that word. What does that mean? That's what I was planning on looking at necessarily. Let's, if we take out the report, then the house would have to be used. Thanks.