 continuation of committee discussion about S-254. I'll lead it off with question. We've heard an awful lot of testimony. And one of the questions, I guess, would be, is there a problem? And then the second question is, if there is one does S-254 help to solve that problem? And my plan is to, after this morning, to take two weeks off and back to it, two weeks from today and see where we're at and perhaps work with Ben on some re-drafts of the bill. I don't know of any bill that we've passed recently that didn't have changes to it. So clearly there's been some good suggestions. For improvement. I guess I will start with that question. Is there a problem? I think there is. I think there is a problem. I don't know how we solve it. I think that the, well, I think that the way that courts currently are interpreting it might be less of a problem than potential courts might interpret. But I think for the most part, what I've heard is that for the most part, not in every case, they are applying it reasonably, but there should be some recourse for victims to be compensated. Well, I guess I'll jump in here. I don't tend to agree there's a problem. We've heard about problems in the federal courts, but this is not something that's going to resolve that particular problem. I've been really uncomfortable with the timing of this bill in the midst of everything else that is going on around us. I've been really low to try to address something in circumstances where we've got so much going on around us. And one of the things that I've got to support the administration on is the optics at a time when we can't find people to get into law enforcement. I'm probably the only one on the screen right now who has actually experienced looking up the barrel of a shotgun held by a police officer. And that's what drove me to law school and it drove me eventually to politics and signing on to the expungement bill. I'm always sympathetic with the idea that people should be entitled to redress their problems with the police. And oddly enough, when I hear witnesses talking about this being a black versus white discussion and systemic racism, I will only say that Mike Schirling when he was chief of police was asked to begin taking data collection on stops by his officers by my Human Rights Commission. And so I am sympathetic with causes but I do not see this as a systemic racism issue at all. Nationally, I'm going to use one example and that is George Floyd. I cannot imagine a more obvious case to talk about when it comes to this, the quest for compensation. I totally disagree with JD as his characterization of this. And I don't know whether he intended that or not but the spin that was put on it was this is an all or nothing situation. And it is definitely not. It is a question of which pocket you are actually attacking in order to try to get compensation. In the case of George Floyd, who is the most obvious example, Derek Chauvin is now in jail. Probably will be for the remainder of his life. I call that with respect to Derek Chauvin, justice. For the family of George Floyd, the Milwaukee city council, I'm sorry, the Minneapolis city council gave that family $27 million as a result of the civil rights violation that took place. I don't know what other success the family could have against Derek Chauvin at this point in time because he has nothing else left to give. But again, we're talking about a federal situation and not a state situation. When I began the practice of law, the Vermont Supreme Court was beginning to spread its wings on the Vermont Constitution and made every attempt it could to demonstrate the distinction between the United States Constitution's parameters and Vermont's Constitution and constantly began siding with Vermont Constitution's desire to broaden the scope of Vermont citizens who were having infractions and or not, that's not the right word. We're having conflicts in various ways with police officers. I cannot for the life of me believe that we need to have a statute in place to dictate to the Vermont Supreme Court what it should be doing in these circumstances. Qualified immunity is not blanket immunity, which is another beef I've had with some of the witnesses we've heard. Qualified immunity was not set up in a vacuum. It was set up to make sure it was a balancing test between what the courts deemed to be appropriate and not with respect to civil rights violations. Our Supreme Court, I have full faith in to resolve any issues that may arise as to somebody unfairly being deprived of compensation as a result of an obvious violation of their civil rights. So I've put all that together and I've come out and having to say I just cannot support this bill. I don't need to pontificate anymore about it, but that's been the position I've been struggling with all along. I will pause to say I've been concerned about some of the testimony we've heard. I just can't countenance people who seem to insult others. And when that happens, I go away after the committee discussion and I find myself very frustrated. But I hope that my position on this does not lead to reactions from some of the witnesses we've heard because I have to frankly say I'm really tired of getting hit from both the right and the left. I try my best to do what I can under circumstances and I guess I will leave it at that and I maybe don't leave it against it, but that's that. Joe, do you? Thank you for your honesty. Mr. Chair. Senator Bruce, go ahead Bill. I'm just wondering Joe, when you say insult other people, do you mean in our hearings that was going on or in email that you're getting? Yeah, I've heard some of our witnesses disparage other witnesses and I just, I'd rather not talk names because I think that's just going to exacerbate the situation. But I felt very uncomfortable when that was happening and all of us deserve to give each other respect whether you're a witness or a committee member. And I think committee members certainly have learned how to do that very well. But I was very uncomfortable with some of the testimony and almost got to the point where I just wanted to turn off my screen and walk away. I hope that answers your question, Phillip. It does. I'll say it doesn't square with my experience of listening to the testimony. There was nothing that I would characterize as insults or, but I suppose it's different people, different perceptions. I'll pick up about where I am. I wouldn't have cosponsored this bill if I didn't believe that there was a problem and I wouldn't have cosponsored the bill if I didn't believe it was a good starting point for a discussion about what kind of bill might fill that need. So after hearing the testimony, that's still basically where I am. I'll just comment on the testimony we had today about insurance risk and risk pools generally. Some of my first experience in politics was as a school board commissioner in Burlington and this was 20 years ago or so. And one thing that struck me was every time we wanted to make a change, a reform in the way things were done, the last thing that we heard was a presentation from our lawyers and our insurance people and their advice was always essentially don't change anything because change produces risk. Risk is no good. Risk is taxpayer money put at risk. And I understand that, but it's a mindset that is, it's not just limiting its stunts reform itself, change itself. So I respect all the professionals who gave their opinion about insurance today, but just to repeat something I said earlier, qualified immunity by definition is limiting the risk artificially for law enforcement agencies, law enforcement officers and municipalities and states. And so they have enjoyed that artificial reduction of risk. So if that reduction of risk is a problem, by definition it means we're gonna have to put a little more risk on those agencies, municipalities and the state itself, but it's in service of justice for victims who've had their constitutional rights and other rights violated. So whatever else we do, I hope we're not guided by exclusively by the warnings of insurance people because I've never heard an insurance professional get behind solid change because that's not where they make their bread and butter. So I am less, certainly less eloquent than either Joe or Phil, but I have, I've done a ton of reading on this issue and research and listened to everything and read everything that's been given to us. I am very uncomfortable. And if I can say that I share the thought that this was not a good time to do it because of the climate that we're in, I share that with Joe. And I know that we've been told the two things that first of all, surveys show that the population really supports law enforcement. And I was sent I think four surveys today and I read them during the break and they're all national surveys and I don't know that saying yes, I support the police is reflected in the actions that communities are taking. And if you look at some of the actions in Burlington and Brattleboro, they are not supportive in general of law enforcement. So I think that those surveys don't convince me that this is a climate that is supportive of law enforcement. And I, so I'm nervous about that. I just, I will throw and I had a conversation. I know that the two of our Capitol Police officers will be retiring within the next year probably. And so they're starting recruitment already and in anticipation of that. And people, what they've heard from people is I'll just reserve my application until I find out what happens with this bill because I'm not gonna come to Vermont if that. So I can't talk about recruitment in general. I can just say that I know that this is already an issue for some places that are recruiting and people have said, I will not come to Vermont if this is passed. The other thing we've heard is that 75% of Vermonters agree that qualified immunity should be repealed. I would say that of that 75%, 80% of them don't even know what qualified immunity is or what the issues are with it because I receive tons of emails from people. And those with whom I have some kind of a relationship I have sent a note back and said, what do you think qualified immunity is and what do you think the issues are with it and why should it, and they don't know for the most part they don't know. So I think that I understand that we need to pay attention to our constituents, but I would posit that most of the constituents do not know what it is and the complexities of it. So I'm not basing any of my decision on 75% of the people supported or I'm trying to figure it out in the best way possible. Thank you. I appreciate all three of you. Senator Nittger, do you have any comment or would you like to withhold from this slide? I do, I just would like to say that I think we've been moving in the right direction with all of the things we've been doing with police situations, training, et cetera. And I'm not sure, I mean those things take time and to have an impact and also one would think that I think this goes too far at this point in terms of allowing some things that we've passed already to get into place. Certainly there are some situations that are terrible. Some of those situations people have been able to sue and get money. I don't think getting money is the only thing of this. I mean, helping victims is what it's really all about. Is the only help for victims getting money? I mean, certainly one of them. But I think a couple of the cases that did get to court and did okay, certainly deserve to and there are others but I don't know that money helps in all of that. But I think really what we're doing is a lot of the stuff to mitigate some of these situations happening. Certainly education and training and just much more awareness of what one should not be doing. So sort of still mulling things over. Yeah, when I started it and marked on this and first signed on to sponsor it like Senator Baruth, I believe there is a problem. I think it's a gap in the access to justice for certain victims. And while it may not be as bad as in Vermont as it is in Tennessee, there's still, in my view, still a problem in the gap. What I also, I'm looking at Colorado's law. I'm looking at what the Supreme Court mean by significant violations as opposed to, I suppose, less significant violations. Our Vermont Supreme Court, I mean, in the Zulu case. So that's an important statement. The legislature may provide the limit of statutory remedy for constitutionally based tort violations as long as the remedy provides meaningful redress for significant violations. Absent legislation provided meaningful remedy for constitutional tort violations. In the term, the scope and limits of sovereign immunity, we conclude that the judge made doctrine does not supersede the right of the people to seek redress from the state for violations of fundamental constitutional rights. I suspect they were talking when they say significant of fundamental constitutional rights. Regarding the idea that I can't tell you how many groups I've heard from that are having a hard time getting workers. I don't think it's limited to police. I think it's a national and statewide huge problem. I don't know if even discussing this legislation is inhibiting maybe for some people. But I think we have to recognize that the pandemic has created a shortage of workers in so many different areas, whether it be a restaurant, CVS farmers, excuse me, Walgreens and Bennington closed at four in the afternoon because they couldn't get anybody to work one day. Somebody called in sick and they didn't have enough workers to even keep the store open. So I don't know how much impact discussing a bill has on recruitment. Maybe it has some. The other thing that I said was I would listen and I have listened. I've been listening to... No, there's not just two sides, but all sides on this issue. And I've tried to better understand where everybody is coming from, but it seems like for individual officers and for everyone, I don't think anyone wants frivolous lawsuits. And to the extent that this might create some frivolous lawsuits, I certainly don't want to be a part of that too. So that's kind of where my feelings are at. I want to continue to look at this issue. Maybe scale back would be one way to get a majority vote. After all, it takes three votes to get a bill out. And I just, you know, goes without saying that I have great respect for people on... People have talked from the Department of Public Safety, from state troopers to local police, local officials. I also have great respect for the ACLU and the folks that have spoken on that, on their side, the people who have come forward, some of them in law enforcement who have suggested that this is a problem. It may not be as widespread, it may not be as much a problem in Vermont, but if we can... Senator Sears, I think you froze. I have people working. Am I alive now? Yeah. There's some people working on the lines out by the house. Hopefully they won't leave any contaminated construction material before the effective date of 166. But I think there might be affecting my internet. Senator Barouf, did you want to comment? I was just going to say, keep Marley inside so she doesn't eat the... So he doesn't eat any contaminants that they might throw away. I don't know what they're doing there. They look like they're working on the house next door. There's two trucks out there. Yeah. I'm not an attorney. And so I don't understand a lot of the differences between common law, case law. I know that that's common law is case law. Case law is common law, I think. And I don't understand tort liability. I'm not an attorney, but I was really compelled by one of the things that Dan Richardson said in terms of the breadth of this bill. And he was talking about tort liability and I'm not... So the two examples that he... And so the Supreme Court talked about a significant violation. And he talked about the two examples. One was the DUI versus the domestic violence and which should the officer go to. And the other one was around the closure of a road or icy conditions. And if the officer made the decision to close a road and somebody couldn't get out because of the closure, would they be able to sue the law enforcement officer for that decision, or conversely that he didn't close the road and somebody was killed on it? And what he said was that if this was... The tort liability was or common law was all of these were included in the bill, that in that case the law enforcement officer would not be able to use his best judgment or qualified immunity. But the public works department employee, if he had made the decision, he would be able to use it because he has qualified immunity. So I'm just really concerned about... And what he talked about was what are the hard decisions? And that might be the same thing that you were pointing out in the Zulu case where they were talking about significant violations as opposed to... But under this bill, the way he presented it is that this would be swept into that. So I... Yeah. Well, I think Ben is here to give us... Help us. ...kind of a lesson. Yeah. Well, and yeah, thank you, Senator Sears. And Senator White, to that point, if I recall correctly about what Mr. Richardson was saying is that there are different analysis for the different types of wrongs, right? So we've talked about the constitutional torts, which Zulu talks about, but he was referring to negligence. And currently, those negligence claims are made against the state under the Vermont Tort Claims Act, which is exempted from this statute. The provisions of that would not apply. And when he was talking about discretionary functions, that's a specific exemption under that law. And so the analysis that would be undertaken is one that's derived from that. So it's kind of... And I know it's confusing because this confuses... It could be lawyers and non-lawyers, but there are different... The different analyses that go on. And so I think in that case, it wouldn't... This bill would not apply to those sort of discretionary functions because these go towards... The discretionary function exemption is something that is afforded to the Vermont Tort Claims Act. It's not a part of this analysis that would happen. And I think what this bill is attempting to do is to create a uniform standard for various violations that are not touched by other statutes. So is that what... Thank you, Ben. Is that on page two? Those lines completely confuse me because I don't have a clue what they mean. And that's what you're... So what it says is this bill wouldn't be subject to common law doctrines of immunity. What does that even mean? Common law... And I think what I've taken from this is that this is an area to clarify as far as... And I think a simple change to... These do not apply to actions under the section would maybe be a way to change it. But the common law doctrines of immunity intent behind that was absolute immunity, qualified immunity. And I know today there was discussion about the good faith affirmative defense and that being an immunity. Now, there may be different trains of thought on this, but an affirmative defense is not an immunity. It can include an immunity like qualified immunity. I know it's confusing. But specifically talking about chapter 189 of this title, so subdivision three there, that's the Vermont Tort Claims Act. So this section is saying that it's not subject. So the provisions of the Vermont Tort Claims Act does not apply to actions brought under this. And the discretionary function exception is part of chapter 189. So what does one and two mean? So one and two means says subdivision one is an attempt to say that absolute immunity and qualified immunity are not defenses to liability in this. So the action brought under this section, those cannot be used. And then the statutory immunities and limitations and liability are what we had talked about before about, and it could be overly inclusive as well as far as the Vermont Tort Claims Act, the municipal equivalent, but also the provisions about insurance waivers of immunity because there are statutes that say qualified immunity is waived to the extent that you've purchased an insurance policy. So that's designed to cover those statutes as well. And just to say that the liability standards that we create here, the damages standards that we create under this law are what's to apply when an action is brought. So number one says that absolute immunity or qualified immunity cannot be used as a defense. Correct. Okay, so we are eliminating absolute immunity and qualified immunity for everyone, not just for law enforcement officers. No, it would just be for law enforcement officers because that's who the action could be brought against. And admittedly, it would probably be a rare occurrence where absolute immunity would be used as a defense because most law enforcement officers are not in the position of like a commissioner or a legislator. And it would only be if they were acting pursuant to their authority as a law enforcement officer. So I guess I don't understand the construct of C because it says that one and two don't, can't be used, but three and four are not even affected by this bill. So I don't under that. Well, it means that they can't be used in this as well. They're separate and apart. And that's the intent. And again, I think that as I go back and work through my markup, this is an area to clarify. And that's something that I will make clear. Okay. All right. Thanks. I do apologize for being so dense, but I just... I don't think you're done. I think it's very, the testimony from both sides has left a lot of confusion in our minds. And frankly, I'm not sure if I don't think it was by design, but... And Ben, I have a question for you. Yes, Senator Sears. It's an icy night, a car overturns. The police come to investigate and the driver of the vehicle is a little unsteady. So they decide he might be driving while under the influence. So they take him to a police station and try to find a drug recognition expert on this icy night. But one is not available in the immediate area. So they have to wait to get one from somewhere else. And that person, you know, it's about an hour later. And the drug recognition expert comes in and says there's no evidence of drug driving. But evidently, there was evidence of a concussion. And nobody treated that. Where would that stand with this qualified immunity? So Senator Sears, are you asking if they continued to hold this person because they had a concussion? Is that sort of... Well, they continued to believe he was intoxicated. Well, the short answer is... I mean, I don't know exactly in that situation because I guess I'm struggling to figure out exactly what you're asking as far as... Well, would this be a case where qualified immunity under current law would come in? And this was an actual case. And what he was really seeking was an apology from the officers. Well, I suppose, I mean, the effect of this is to essentially put law enforcement officers in the shoes of everyday people as far as what the liability that they're exposed to. And so if there was a claim that this individual had against the police officer, you know, other for negligence, that he had a duty to this person during the scope of... While he was working as a law enforcement officer and somehow breached that duty and caused him harm, theoretically, yes, this person could bring an action against the law enforcement officer. And he would not be able to use qualified immunity in that situation. If this passed. Correct. But if it... Yeah. Yeah. Other comments, questions? So one of the... Yeah, go ahead, Albus. One of the other recommendations to, you know, to do something to perhaps mitigate something happening in the future was to do like Jeanette's committee is looking at and look at licensing of police officers. We already do that. And there is under the new criminal justice council, just for your information, there is a new subcommittee made up of professional, subcommittee of professional regulation and discipline. And it is co-chaired by Sheriff Mark Anderson and Susanna Davis. They co-chair the committee and they are working really hard to make sure that in this environment, we know that it's hard to... It took them a while to get organized, but it took them a while to get organized. And so, I think that's why we have a new criminal justice council, because we added like 15 members, but they are working on that. And so there is that work going on. And they are currently not... Licensed certified under the level one, level two and level three. And so, yeah. That is happening. Anything else? All right. Why don't we meet here tomorrow morning at 9 a.m.?