 Before we turn to H10 committee, we have an order back, so let's find a time to vote. And we do have the new amendment, 538. So he was after joining the sex worker study. So anyway, we'll figure it out. And Tom is on his way. He's going to be here this late, but he's on his way. And it looks like he is here somewhere. So yeah, OK. So as I usually do, just let's go around the room and see who's here. And I'm Susan Betman from Oracle Media. Laura Steuben, go to the center. Excuse me, go to the center for a moment. Jeffrey Wallen, Vermont Crime Information Center. Caroline Hansen, the Vermont Crime Information Center. Jack Spiderman, I'm here to bring in her chair. I'm your root, I'm entering for Barbara Richardson. Jessica Barquess, Vermont Network. Sarah Robinson, Vermont Network. Heaven News is a month of veterans who are supported as well. Eric, can you just go to the room and watch? Howdy, I'm Lauren Dipper. Christina, right here in the dressing room. In me in the federation, you want to come closer? You like me, like? Like them. Great, OK. Welcome, everybody. Good morning, Eric. Morning. Yeah, thank you, so. So we have a new draft, draft of 4.1 of 610, which Eric, if you could walk us through, not only changes, but really just from the top, a full walkthrough would be helpful. Sure. And again, in this draft, we're trying to respond to some of the concerns that we heard. Again, starting point, the conversation is still continuing. We still have testimony to take, but as Eric goes through, I think the committee members will understand what is and isn't there. Morning, everybody. Morning. Eric Fitzpatrick with the Office of Legislative Council. As the chair was just indicating, we have a new draft in front of you of our proposed amendment to 8.6.10, an act relating to firearms and domestic violence. As the chair was indicating, I took some direction from the chair and from Representative Lawn to see if they were responsible of the amendment to incorporate some of the committee discussion and testimony that was had during the previous couple of meetings that we had talking about the 7.6.10. Most of you may remember this. Some of you may not recall, but just to refresh, sort of how the document looks in front of you, you'll notice that, and it can even look a little bit right here, usually what I do to try and indicate, and as you mentioned, Representative Gratt, I'll certainly mention the whole bill, but it helps to know where are the changes between this draft and the previous one. By the way, I indicate that it's by yellow highlighting, so for example, there's an easy one. Non-controversial, correcting a cross reference. You'll see the way that's displayed is the prior language is struck through and the new language is underlined next to it and the whole thing is highlighted in yellow and that's a way to sort of draw your eye to any change that there may be between this draft and the previous one. So that's just sort of the general thing that you could mind as we take a look at the proposed amendment, page 610. So, with that in mind, let's go through the bill itself as trying to focus on where the changes are as well. Section one, you probably recall, in fact, the only change to section one is exactly that, just correct and an incorrect reference, but other than that, section one is the same. That is the section that deals with background checks and in particular, you remember that when firearm sales are made by firearms dealers under federal law, there has to be a background check. It has to be conducted via the National Institute of Criminal Background Check System, also known as NICS, when NICS comes up with, does the check on the proposed purchaser and the idea behind that is that to determine whether or not this proposed purchaser is prohibited from possessing firearms. If they're a prohibited person, maybe it's because they were convicted of a certain crime. It could be because they're fugitive for justice, maybe they're subject to a relief from abuse order. There's a list of prohibited categories that a person might fit into and the NICS background check, if they discover that, will let the dealer know that the person's can't possess a firearm and the transaction can't control. There's a provision in federal law though, you may recall, known as the default proceed and that means that if there is no answer received from the NICS background check within three days, then the transaction can still go ahead. It can still proceed. So what section one does is it takes a different approach for purposes of Vermont law and says that you're not gonna go the default proceed approach and instead proposes that in order for the transaction to go ahead, there has to be a positive response from the NICS system that says no, this person does not fit into one of the prohibited categories, it's okay for them to possess so the transaction can go forward. So that a three day default proceed process would not be the case for firearm sales in Vermont, whether by dealers or by private persons, assuming that you don't fit into one of the, you know, remember there's exceptions for some firearm transactions between private people aren't subject to the background check like immediate family owners, law enforcement, those kinds of things, but if you don't fit into one of those, then you have to get a positive response from NICS before the transaction can go ahead. Oh, thanks. Where's that going? Under the C in judiciary, on the other side of it. Oh, on this thing. Yep, on this. Yep, yep. Thanks. Well, I keep stealing. You know, you don't want to go there. You know how to disarm it. Thank you. So that's that section. That's anyone has any questions about that? We can move on. So next section of the bill has to do with relief from abuse orders. Next several sections, I should say. And you remember these dealt with orders for relief from abuse both temporary, which are emergency orders. And final orders, which generally happen up to 14 days later. And there are some provisions that are proposed to be added in the original draft, and I'll actually go over those real quickly. So there's this substance that has to be in these orders when they're issued, when a person is able to obtain a relief from a abuse order from the court. Now it starts, I always sort of thought that the should go temporary for emergency second in terms of the order and the statutes, but it doesn't go that way. So we'll start with the final one. Now these are some provisions that the order has to contain. You remember the first time we talked about the bill, there were three provisions, and you see the non underlying language here. So that's the stuff that stays the same. And the same three provisions are really in here, although there are some changes I'll mention in a moment. But these things basically involves immediate relinquishment. That's number one, you see Roman numeral lowercase one there, immediate relinquishment until the expiration of the order of firearms in the defendant's possession. So that has to be in the order, I should say a less subdivision four applied. That was in the original plan. We'll get to that. And second, the second piece involved prohibiting the defendant from residing as a residence where firearms are present. And the third was informing the defendant that they can't possess firearms. So these three things had to be in the order. And the way it was written originally, there was an exception, the subdivision four thing in line 17 that you see. It had to do with, it permitted the defendant to be tested by under oath of the judge. Remember that the judge could question the defendant about whether or not they had firearms. And if that were the case and they testified under oath that they didn't, then they wouldn't require relinquishment. So maybe two real concerns that came up here. One was, remember Judge Gruerson mentioned that could be a self-incrimination constitutional problem that forced someone to do that either. They wouldn't testify or they might be put in the position of incriminating themselves. So there was some concern on the questioning the defendant piece for that reason. So you see what this draft does is it strikes that. So it gets rid of the questioning of the defendant completely. It's because that language is struck there. And then you go down to subdivision four, which is right there, line seven through 11, struck. So the proposal is to get rid of that. There's not gonna be any examining of the, or questioning of the defendant by the judge. Ads, the proposal then adds something to remember. The other concern about this was the mandatory nature of the relinquishment, the way the language had been written back then. Other than this sort of one little outwear based on the judge questioning the defendant, other than that it was written to be mandatory and required that relinquishment be in all the orders. So this language proposes a different path that the court could take if it didn't feel that relinquishment was appropriate in a particular case. And that path you see is the language here. So relinquishment still generally required, but lines 20 to line two, pages four to five. Relinquishment would not be required if the court makes a written finding that by clear and convincing evidence relinquishment is not required to protect the safety of the victim or the public. So the idea is there's a method the court could take if the evidence were sufficient to not find that relinquishment would be appropriate in a given case. Matt. Can we have a review for people that don't know like me what clear and convincing is how the levels are? Yes, absolutely. And right now, I'm actually anticipating that question. So I try. Oh, if you have a better way of doing it then go with your way. No, no, it's exactly what you were asking for. But if you have a method that you're working out to it then go through your presentation the way you want it. No, your timing is perfect. I was going to segue you right into it, so thank you. So yes, the question is right on the money which is with the language there, well, the obvious thought that arises but what is clear and convincing really mean? So there's three general standards of evidence, birth and proof that come up in court and they're sort of from lowest to highest, the lowest of preponderance of the evidence, the middle tier is clear and convincing and the highest tier is beyond a reasonable doubt. So beyond a reasonable doubt, probably very familiar to everybody, that's the standard from criminal cases. Really no doubt whatsoever, a reasonable person could not conclude any other way than in the manner of the finding that is proposed. So beyond a reasonable doubt, really no doubt whatsoever. That's the highest, the lowest, the sort of the least amount of evidence required is preponderance of the evidence and that's what's ordinarily used in civil actions. So you've got criminal one, beyond a reasonable doubt, civil actions, ordinarily preponderance and that means, I'm just quoting from a couple of cases in law dictionaries, preponderance of the evidence means a degree of evidence that while not sufficient to free the mind wholly of all reasonable doubt is still more convincing than the opposing evidence and is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, burden used in most civil trials and generally it says in order, the jury's instructed to find for the party that on the whole has the stronger evidence, however slight the edge may be. So it could be just a very slight difference, more likely one than the other, sometimes in percentages it's been referred to as 51 versus 49%, just barely one side of the other, that's the preponderance standard. So you got your two extremes there, the lowest and highest, middle one, clear and convincing, sometimes used in different statutes, the legislature will do it, sometimes the court will require the standard as well. Clear and convincing evidence means evidence indicating that the theme to be proved is highly probable or reasonably certain. That's the sort of terminology that's often used, highly probable or reasonably certain. And this is sort of self-evident, of course a stronger evidence than a preponderance, but less evidence than a reasonable doubt. So that sort of locates where it is on the continuum, right? But that's sort of the sense of, and in some ways they're. Can I keep going? So this is a civil action, is it unique to have a clear and convincing, you mentioned that it's mostly said preponderance is typically done in civil, is it unique to civil to have clear and convincing used? By unique do you mean it would never come up in a criminal situation? No, as in do we, it's typically in civil cases, preponderance is what's used. Right. What we're seeing here is being the threshold is clear and convincing, so it's asking for a higher threshold. Correct. Is that unique or unusual? No, I think it's, I would say it was less common than preponderance, certainly. But that it's common for the legislature to insert situations, for example, I'm just thinking of one, just because I was just talking about it this morning in a different context. But for example, the civil commitment standard in I-18 when a person is civilly committed for involuntary mental health proceedings is a clear and convincing standard. Involuntary medications are a clear and convincing standard. So the legislature is not unusual, as a policy choice is certainly totally up to you, but it's not unusual for the legislature. But there's precedent for doing it in this area. Another question is sort of trying to compare different rights and sort of one word, the standard that you use to look at what's necessary to take away a right from someone. So what is the standard for a search warrant? Probable cause. So it's even a lower threshold? Probable cause, that's an interesting is, it's a different formulation because it is a burden of proof and you could say it's somewhat similar, it bears elements of some of the others, but it's because it comes up in a different context, it doesn't necessarily fit neatly into the preponderance, clear and convincing, beyond a reasonable doubt, sort of continually. Is there a better example that I should be asking of what's the burden of proof required to take away a right from someone? No, but I think as it happens, that's exactly what the courts have said with respect to the other issue I just mentioned because I haven't been revealing some cases about the voluntary commitment and that sort of thing. And the court specifically said, you're taking away somebody's liberty interest, exactly. And for that reason, you need a higher threshold. Yeah. Is there a definition for probable cause or how would you explain probable cause? There is, that one I was gonna kind of wait just because later on in the bill, you'll see it's set up and the warrants are based on probable cause in one situation and reasonable suspicion in another. I'll give you a little preview now though, but I'll give you that in a little more detail. But I guess in a nutshell, the courts have said that clear and convincing evidence is a appropriate threshold for removing a right from someone who has the right to live. Yep. Thank you. So I'll put that probable cause and the suspicion on this, you must have heard it now. I think that's fine. Great, sounds great, thanks. So that's the one piece of the order that we're talking about, right? That the relinquishment generally stays in, take out the examination of the defendant by the judge but put in that there has to be a clear and convincing finding that relinquishment's not required to protect safety. That's the proposal. Second piece, similar, remember, I also had a piece in the order that it would be required to prohibit the defendant from residing at a residence where firearms are present. This is just the same language we just looked at. Again, provides the court an out to say, well, it doesn't have to necessarily prohibit the defendant from residing at those residences because the option is established here, proposed I should say here, for the court to make a written finding that by clear and convincing evidence, relinquishment's not required to protect safety of the defendant's public. So based on the particular circumstances, whatever they may be, it looks like residing at the residence is not going to be necessary then the court doesn't have to include that in the order as long as there's a finding that that could be done without impacting public safety or the defendant's safety. That makes sense, everybody, how that works. No changes to the next piece. This is just the information piece that has to be in the order to inform the defendant that they're prohibited from possessing firearms. That's the same as it was. There is a new provision order though. You see, this is lines nine through 11. This is added to the order and this would be that if the order does require relinquishment of firearms. Remember, because it's an if because we just proposed in subdivision one up there, relinquishment may not be required. The court finds, well, by clear and convincing evidence not necessary to protect safety then there wouldn't order relinquishment. What this subdivision four says, well, if the order does require relinquishment then there has to be information included in it regarding the type and location of firearms subject to the order. I should say all available information. So it doesn't require a proactive search. Just that there's information available about the nature of the types of firearms and where they are that has to be the right one decision. So we talk and make model. What are we talking about there? That's a good question. It's not specific about that. Just this type and location. You know, you might want more clarity there. That's a good point. Throw in serial number while you're at it please. Yeah. Make model. So that's the fourth piece. That, I have a question or maybe more of a comment. It seems that the information required in that section we're talking about lies nine to 11 presumably could be coming from the affidavit support of the relief for abuse. And that's addressed at page nine. It's the same language essentially. Slight change, seven to 12. And there it talks about plan of stating with particularity the type and location of any firearm. So that clarifies, again, it doesn't say model number or anything like that, but that's tied to this. Right, because it says with particularity there's some specificity and requirement there, yeah. So you'll see, everybody ready to move on from there? So you see, you have a lot of struck language here, right? All the stuff, the second half of that page in a good portion of the next page is all struck. And what this had to do with was the search warrant issue. Remember, there was a big discussion under the previous draft that a search warrant could issue at the same time as the relief from abuse warrant. Same time the RFA was issued, temporary or emergency, the court could also issue a search warrant and a warrant for actually for the search and seizure of firearms from the defendant. The court found probable cause to believe that the defendant had firearms. So it would happen at that stage of the proceeding, right? When the relief from abuse order was issued, the court was given the authority to issue the warrant. So the language, you see the language is struck here, so that's taken out. So this proposal does not have a warrant being issued at that time. It's moved to later in the process, and we'll get to that in a moment, but. So you see it struck, it doesn't mean it's taken out of the bill entirely, but it struck from this stage of the process that the warrant option is provided later in the proceedings after the officer has served the order. And if that gives you the details of it, the big picture is after the law enforcement officer serves the relief from abuse order, which is what happens now under current practice, that's the way it works, but after that happens, and the officer has probable cause or reasonable suspicion to think that the person does have firearms, then he sort of track into the path of how a warrant might be issued. Everybody see that, how it's later in the proceedings? It's not when the order gets served, it's afterward that the officer can go apply for a warrant. So that's the proposed change in the timeline in this draft. So we'll get to that in a moment. So it struck from here. Yeah, Eric. Yeah. So what you're saying, is that leaning more toward, I don't know, right, terminology, but your standard due process? I think. Is this now? Yeah, the way, the new proposal, is that more the way things are usually done as far as due process goes? I think that. You understand what I'm saying? I'm not even sure. So I don't know, I think maybe what you're getting at is it's more of a search and seizure issue. You're right, it's a constitutional issue, but I think the reason it was sort of a novel approach in the way that the language is written at first, is because the warrant is issuing before there's necessarily probable cause to believe that the person's committing a crime, right? And that's why that language was in there. Remember, I discussed this New Jersey Supreme Court case, which had sort of said, well, under these circumstances, you can issue the warrant at that point in time. So this approach, because it moves it later in the proceedings, at that point, there is gonna be, if the court's gonna issue a warrant, there is gonna be probable cause to think that a crime's being committed. So you've moved it to a stage in the proceedings where you don't have that concern anymore. And that, I think, is kind of addressing what you're getting at. Yeah, okay, thank you. Yeah. So as Representative LaMond was mentioning, one of the sections that was in the bill previously also has to do with the form complaints that the court has for relief from abuse. They have these forms that people fill out now and this puts some specific language in there that what the complaint and the affidavit had to include, and this is sort of line 16-ish, includes specific provisions collecting information about the defendant's fire. Now the one change, and then line 18 is what Representative LaMond mentioned, including requiring the plaintiff state for the particularity, the type and location of fire. And Representative Galston just kind of goes to what you were asking about as well, that particularity point. The proposed change here is that as originally drafted, the questions to the plaintiff, to the person asking for the relief from abuse order required him or her to stay with particularity, the type and location of any firearms. Right? This changes the required permit. So not necessarily, not required that the plaintiff answer these questions, but it permits the plaintiff answer. This next section is the emergency relief from abuse orders, everything we just went through in terms of the language regarding relinquishment, residence, information about location of firearms, that all applied to the temporary, sorry, to the final orders. This section deals with emergency orders, the ones that can be issued by the court to the plaintiff with the defendant not present in the initial stage, and they have to have a final hearing within 14 days afterward. Now this is just the same language as we just went through it, so there's no, this is exactly the same points that I already mentioned. So I want to go back to the civil commitment. Yup. Do we allow for that to happen without the defendant there? Yeah, similar. So the other question that I have is sort of, who has the burden of proof in this, other than this bill, or this proposal then? In the court, it looks like the way it's phrased now, the court has to make, you mean the clear and convincing? Who has the proof to that standard for in both sections, I guess, because they're the same? I would read that as requiring the defendant to show that clear and convincing evidence that, you know, sort of put it in more everyday terms. The defendant would have to show by clear and convincing evidence you don't need to take my firearms in order to protect either the victim or the public. Okay, so then going back to the civil commitment, someone's, you know, I don't know the process for who can initiate that action, but someone's trying to civilly commit me. Who has the burden of proof in that situation? So we'll work that out, right? Liberty. It's an interesting question, because the exact nature of the burden of proof is something that's being discussed downstairs in that context right now. And the answer is it can depend on the proceeding. So for example, in the civil commitment proceeding, in other words, not related to a person who's been found not guilty by reason of insanity, they think of how someone might be committed. They can, they could be committed civilly. Had no crime involved at all. You have an interested person, doctor, family member, if you can go to the family division and get an order for commitment of someone because they're dangerous to themselves or others. In that case, the person seeking the commitment has the burden of proof by clear and convincing evidence. But that would be closest to this because we're talking about someone, we're not talking about a criminal situation. We're talking about a civil action. This is a civil action, yep, yep, that's true. So it would probably be closest to, I mean the fairest comparison would be to take it to civil proof, what do you say? I think it's one of those, I have to behold, there are perhaps situations. I think maybe it's more analogous in the sense that they're both civil, but because they're sort of an underlying crime, because here it actually is a crime for the person not to, not to cause you, I should say, it's proposed to be a crime. Because there's language in here that proposes it to be unlawful for the, Is there any crime that our standards get all out of the clock because then we have to deal with that beyond the reason for that? Well, interestingly, so that's what I was gonna say, in some situations, sort of going back, backtracking just a little bit, the person who was found not guilty by reason of insanity, and they want to, and they're committed to treatment, they have to show, they have the burden, they can have the burden of showing by clear and convincing evidence or preponderance that there are no longer the need of treatment. But they were in a criminal court to get there. Correct. Okay, so we're not in a criminal court for this proceeding, we're in a civil action. Right, not at this stage, right? At this stage of where, if someone, if some of her mother's being impacted by this, they're in a civil action. So, in a civil action, do I have, there's a civil action to commit me, which I'm sure there's many people around this table that would like to do. Do I have to prove to clear and convincing, clear and convincing evidence that I do not need to be committed in order for that action to not happen? No, no. Oh, the state has to prove by clear and convincing evidence in that situation. Okay. And you are a danger to yourself or others and therefore should be committed. So in that case, to remove the right of liberty, we've said that the defendant does not have to prove to clear and convincing evidence the plaintiff or whoever, this is a problem whenever someone who isn't a lawyer tries to talk in the judiciary committee, but the other person would have to prove that I should have my liberty removed. And in this case, we're saying that I would have to prove that I should not have my second amendment rights taken away. I would have to prove that, the other person would not have to prove it. That's the way this is written. I think that's fair stare. Thank you. Since we're using civil commitment as a comparison, what's the timeline to how often somebody committed for the orders? Is it, I'm just wondering if it's really apples to apples in terms of a civil commitment procedure and what's here in terms of the timeframe? You know, it's the 10 days, it's the 14 days, this is up to a year in terms of when somebody is civilly committed, who can be civilly committed? The timeline is if the initial order can be up to 90 days. And then within that 90 day period, there has to be a subsequent review to determine again whether the person's dangerous to themselves or others. And then if the court says they are and they will remain committed, then the next order can be up to a year. So they can be committed. I'm continuing orders up to a year at that time. Can I just back up a little bit before the emergency relief? On page six D, that language was struck about law enforcement agencies shall be immune. Yes, but that's gonna be, it's only moved. You'll see it, it's still in the bill. It's still in the bill, just a few pages down. Okay, thank you. Yep, everybody okay so far? So as I was mentioning, the changes to the emergency orders are the same as the changes that we already went through with respect to the final order. So again, immediate relinquishment required unless the court makes the clear and convincing finding that we were just talking about. Same thing with the residents, can't reside at a residence or firearms are present unless the court makes the clear and convincing finding. No change to the basically information piece of the order which is informing the defendant they are prohibited from possessing priorities. And again the same language is added that we mentioned in the final order context as well. And that's if the order requires relinquishment of firearms again, because the order may not. But if it does, has to include all available information regarding type of location. Again, the warrant language is struck here because the warrant is not being issued at this stage of the proceedings anymore. It's being moved further on. So again, it's moved and you'll see it appear later on but for purposes of thinking of the chronology of when this happens. The warrant wouldn't be issued at this stage so the language shouldn't appear here anymore than it does. Yeah, sure. Sorry. I'd like to back off relative to the conversation with Matt. Could you explain the standard that the legislature is under with respect to any kind of regulations related to firearms? What did the Heller case and subsequent cases establish? You mean the standard of how laws are reviewed with respect to the Second Amendment? How is it sort of the... Right, right. As far as... Rational basis, intermediate scrutiny, strict scrutiny, is that kind of what you're talking about? Yeah, and the reason is, I mean that we're establishing the presumption here that firearms are to be relinquished unless there's this other showing. There are certainly the questions of burden of proof in the form but I think an important burden for us to be watchful of is the burden on the legislature as far as what we can do, what's the scope of our authority and ability to regulate firearms. Right. So I think Representative LaLonde is referring to the fact that because the possession of firearms was held to be a personal right under the Second Amendment by the United States Supreme Court in the Heller case, that means there are limitations on what steps and what laws the legislature can enact with respect to firearms. Now, the US Supreme Court hasn't said much more since Heller to give states a little more detail about how those limitations might look. But lower courts have, so that's sort of been left to the Circuit Courts of Appeal to articulate what that is. So as it happens in the New York State Rifle case, the Second Circuit, which is the circuit that Vermont sits in, adopted an intermediate standard of review for firearms restrictions. So that means that, again, in the middle again, it's similar in that sense, it's similar to clear convincing. You know, the most difficult standard of review, but I think the most difficult law for a legislature to pass would be subject to the most exact judicial review as known as the compelling state interest, the strict scrutiny standard of review. It's often said among lawyers that if something is subject to strict scrutiny, that means it's pretty much gonna be struck down because it's very difficult for a law to survive that level of judicial scrutiny. The law has to be narrowly tailored to fit a compelling state interest. So it's two legs that have to be very specifically tailored to a compelling state interest. The lowest standard is rational basis, which just means rationally related to a reasonable government interest. Complete opposite with that standard of review that almost always state laws are upheld under that standard because it's very easy to articulate a reasonable government interest. Could you say that one more time? Yes, it's hard to follow, right? Just the lower standard. Yes, rational basis. So reasonably rational related to a legitimate government interest. And again, I'm sort of doing this on the fly. I haven't definitely researched this right for today, so I wanna reserve the right to correct my catchphrase. Yeah, and later basis, right. It's actually related to it. And the second survey case that you decided is relevant. Yes, that's the New York State Rifle case. I think it's versus Cuomo. Okay. That's the second survey case. Then that one said that for purposes of firearms regulation, again going off of the US Supreme Court's vision, and Heller didn't say what the standard of review would be. So left that question open, right, the lower courts have had to kind of wrestle with it. Not all courts have reached the same conclusion, but the Second Circuit, the one Vermont sits in, said intermediate scrutiny, which is the middle level of scrutiny, which I think is substantially related to an important government interest. Thank you. So again, you see some of this as semantics, right? So it's sort of like, how do you decide whether an interest is important versus compelling versus reasonable, or legitimate, I should say. And how do you decide whether something is narrowly tailored, substantially related, and sort of going down the tier by saying those. But all I could say with that is that courts have been using those standards for many, many years, and they're familiar to litigants, and they're based on the facts and circumstances of a particular case, but it at least can speak generally to say that the level of review that the court gives in this case, firearms regulation is in the middle, as opposed to the most exacting or the most deferential. I don't understand what the, I don't understand what the relevance is. You explain that more. Yeah, sure. I mean, the relevance is that we are setting up this procedure where there's a relinquishment of firearms, and if I can use your language, that giving up the right to have firearms in a particular situation. And one should look at that with this concept in mind that it's substantially related to the important government interest. I'm saying that that's as important, if not more important, of the standard of paying attention to whether we have preponderance of the evidence, or clear and convincing evidence for this other component of the bill. And if we're looking at what is the extent of our ability to address these rights under the Second Amendment, it's with intermediate scrutiny. If somebody were to challenge, If this were to pass, if somebody were to challenge, it's had what would the court's review be of the legislation. And so that's sort of the overarching thing to keep in mind in terms of constitutional viability. I mean, we can never say something is absolutely constitutional. Well, yeah, yeah. I wasn't trying to make a constitutional argument. I'm trying to understand for myself. Right, no, no. The last thing me as a non-lawyer would do is try to see whether there's something. No, I know you weren't, but I think it's just two ways of looking at it. It's the context of your really focused on preponderance, convincing, which is important. I'm not denying it, but I think that's a good picture of something to keep in mind as well for yourself. Thank you. So, I think we were just sort of finishing up the continued review of the language that's been, the more language that's been moved from the initial stages, proceedings to further down the timeline when the officer serves the relief from a visa order. And typically you'll see here that there's some new language that I mentioned earlier that the court right now has forms for these relief from abuse complaints and forms for the orders. And you see that in the existing language right there, line four, page nine. And this adds, and typically there also are return of service, returns of service that are used. And return of service means when the officer serves the warrant, or sorry, serves the order on the defendant. And the order will say, let's stay away from the plaintiff or restrictions on contact between the two parties, whatever the order happens to say. Typically there is a return of service and that means that the officer takes the return of service and brings it back to the court. It shows the court that the order was served. So there's a record that this service happens, what a return of service means. So that doesn't just happen in this case. It happens when warrants are served generally. It's a standard piece of operating procedure in the court. So this adds, you'll see what the warrant piece here has been moved from the initial stage of proceedings to further down the road, when the officer serves the review from abuse order, there's gonna be some specifics in there about what the return of service has to say. And for that reason, return of service forms are added here to the list of orders that the court has to come up with. So there are gonna be these forms that the court's gonna have for the officer to use when they serve these orders. And also, when they return service to the court and say, hey, the RFA was served and this piece of paper shows that it was and you're gonna see that there's some substitute requirements of what has to be hidden. But as an initial matter, this says, well, the court says to the court, have these forms ready for the officers and the plaintiffs and the defendant and the plaintiffs primarily to you so that it makes it easier for people to cooperate with this whole process. So lines nine and 10, we saw before that again, this is the same thing that was in the final order section that we already looked at. The questions on the complaint from relief from abuse and the affidavit don't require the plaintiff to state anything about the firearms, but it permits the plaintiff to state that. No changes to section four. That's the new criminal provision around a person who's subject to a relief from abuse order, not being allowed to possess firearms similar to the federal law in the sense that the federal law already prohibits, already prohibits someone from possessing firearms if they're subject to a final relief from abuse order. This one, in addition as the emergency temporary relief from abuse order. So for that, that person would be prohibited for purposes of Ramallah, but not federal. Whereas if it were the final order, it would be prohibited by both. Does that make sense, Erwin? All right, so now we're moving on to, now you'll see the warrants, this language added to the section just to sort of add to the title because this is where the warrants piece is being added to service. So it's not happening at the beginning when the order is initially issued, you'll see that it's gonna happen later on. So, this is highlighted here, but actually that's existing law of lines 11 through 17. I just highlighted the whole subdivision there because there's some changes being made to it overall. But there is some, this is existing language that, and you may, we talked about this to it, this initial piece right here actually was discussed when the committee was talking about the domestic violence bill, committee bill. And there were some separate domestic violence issues that were being talked about in the committee bill and there was discussion of what's known as the once-served, always-served language. You might remember that. We went over to the language in the context of this other bill, it's moved into here and that concept was that one, when a person is served with a temporary relief from abuse or a service, that means they are personally served by a law enforcement officer, remember we were just talking to them, they take the return of service, bring it back to the court and say, okay, we serve this person. When that happens, the same person in the same manner can be served with the final order by first class man. I see that. So they've been served once already personally, which is a constitutional requirement for due process. And they say, but this allows the second subsequent, because for example, let's say the person, and actually if you look at lines 14 through 16, so imagine sort of the chronology of how this happens. Frequently, if not mostly, at the emergency temporary relief from abuse order stage, the defendant's not there. They're getting that from the court, the defendant's not there, but the defendant has to have an opportunity to participate at the final hearing that has to be held within 14 days. So you get the final, the emergency one, there has to be a hearing set up within 14 days, the defendant has a right to be at that one. So, and remember they have been personally served with the emergency order. So then let's say the defendant does come to the hearing. That's lines 14 through 16, existing law. If they do come to the hearing, they'll be required to adhere immediately to the provisions of the order. And so, and actually just above that lines 13 to 14, if they're there, and they've already received notice, they're deemed to have been served. In other words, you're there at the hearing, you hear everything that's gonna be in the order. You're, in that case, you're gonna require to adhere to it. So obviously, comports with the process of the demonstration to assume that the person knows about what's just said to them. And that's all, this is all existing. That's all existing, right? So, this addressing situation where, say the defendant wasn't at the final hearing. They weren't at the initial hearing, because usually they're not, the law sort of came, sort of found them, served them personally. So they don't show up for the final hearing. In that case, that's what this language addresses. It says, all right, well, the court shall observe the order I'm sorry, I skipped to line 20. A defendant who's been served with a temporary order issued under section 1103. In other words, they've already been served for the temporary order, right? Maybe served with all subsequent orders, in the case by first class mail to their last known address. So in other words, they got served the first time, rather than require personal service the second time to someone who didn't show up at the final hearing, you can do it by mail. There's also requirements that the defendant form the court of any changes in their address. And also the last line there, that the subsequent order shall be effective when it's issued. So again, similar to the situation where the person was in the court, in this case, the person chooses not to be there, order can be mailed to them, and it's effective when issued by the court. I just have a quick question. I know that I'm looking at line 18 on page 10. I know that in other civil actions, the order is required to be served by certified mail so that the individual receiving it has to sign. Do you know why it's being served in first class mail? Where they wouldn't, they don't have to sign in its first class mail, right? So I think my concern is, how do we know that the person actually receives it if it's first class mail? I don't know if that's actually more for a committee discussion. Well, just for a little bit of background, the language here, I think, and I think you're hearing from someone from, perhaps a judge from New Hampshire this afternoon, but it's based on that statute in New Hampshire. So just the reason why it's first class mail, I think that's what the New Hampshire statute said too. But it doesn't alleviate your concern necessarily. Certainly there are other places where the legislature can say it has certified mail. So it's certainly in a policy discussion for the committee. The reason that it happens to say first class now, I think it's just because that's what the New Hampshire statute said. So do we ever use first class in Vermont as a process certified? I'm sure. I don't know off the top of my head, but I think the answer to that is yes, sometimes you do, and then I'm... I guess for evictions, there's something we talked about. Evictions is first class, I think, so it definitely is for going and getting your time. For divorces, it's certified. For divorces, it's certified, you have a case that turned into a giant issue. It'll be good to find out what we're doing to, you know. Yeah, yeah. Matt. Who's responsible for the cost of all the serving and who changed the certified mail? Would that be a plaintiff? Does that work? So that doesn't need the cost of that, it's usually... I'm not sure they answer that. That'd be a good question for the witnesses, I don't know. My concern would be that in situations like this, I don't want to put an undue financial burden on a person seeking relief from the groups to sort of, you know, to get someone served costs hundreds of dollars to begin with in the first place. So, there's some sort of cost after the night. I want to make sure that people can access this if they need to. I mean, I definitely hear your point, but just a question for Eric, the way I'm reading this is right now, the law enforcement agency has to both physically serve the order of receipts in the proposed change here for the mail, so I can't imagine that's not a production of cost savings all around. I understand that, I'm actually supportive of the language of first-class mail in this case. This change I like, I would be, if the financial burden applies to the plaintiff, I wouldn't want to make it tougher. Probably a question for Jeff first. Yeah. So we talked about that the change is in the way in which the order is transmitted to the defendant. Now, we're going to move on to the warrant issue. As I mentioned, I always move to this subsequent stage in the process, and I'll go through this language and sort of, it should be familiar because we looked at very, very similar language initially when it was part of the order itself, but it's some differences here, so let's take a closer look at how we read now. So the idea is that when, as I mentioned, when the order is served, that's when this law, the person officer is going to also accompany the order with this return of service form, okay? And you see that lines 19 through 20, this goes back to as you were just saying that there has to be a form, right? Now for the return of service form, and that makes sense because there's going to be some specifics that have to be on that form. See it right there, on line 19 and 20. The law enforcement officer has to indicate with specificity whether firearms were relinquished by the defendant. So it would be a new element of the form because the returns of service happen already, but this requires there to be something additional on the form, and that has to say some indication, some specific indication of whether or not firearms were relinquished, here they were, they weren't. Now, then goes on and say, okay, that's the case. You think about the chronology officer, serves the order, going to have to put on the order whether or not firearms were relinquished. Now, now one possibility of course is that the firearms are relinquished, right? That's one thing that could happen. If they don't, that's subdivision two kicks in. If the defendant does not relinquish firearms upon service of the order, and the law enforcement officer has probable cause to believe that the defendant possesses owns or controls firearms, but see that? So they're serving the order, they don't relinquish, but the officer has probable cause to think this person still has firearms. Then, I'm on line three, the officer is required to submit the return of service from the court, along with an affidavit, requesting that a warrant procedure of the firearms be issued. Now, at that point in time, you think about what we just looked at, the language that makes it a crime for a person to possess a firearm, whether subject to a relief or abuse order. At that point in time, if the officer has probable cause to think that the person still has firearms, because they've been served with the order, and it's a crime to possess firearms at that point, the officer has PC, has probable cause to think that the person's committing a crime. See that? At that stage of the game, there is probable cause to think that the person's committing a crime. As opposed to, remember when we looked at it earlier, it was a little squishier in that question when it was happening earlier in proceedings. Because they have this probable cause, there's under, you know, it's well established that the court has the basis for issuing a warrant in that situation. It's the officer has probable cause to think that the person's got firearms at that point. The officer still needs to submit this to the court. Correct. The officer can't do anything right in there. Right, that's right. Officer, back to the court with the return of service and say, I'm with an affidavit, say, I've got probable, here's what I think. You know, whether they were ordinary with the affidavit, whatever facts and circumstances support, the officers believe that the person still has firearms, they have to be in the affidavit, go back to the court. Court looks at it and can then issue the warrant. And does say, the return of service in the affidavit shall be filed with the court at the earliest possible time and shall take precedence over other summonses in orders. And the idea there is obviously a speedy, trying to speed up the proceedings at that point. Yeah, that. Is that typical? Yes, that's done sometimes as well. In fact, it's already, if you look, the service about, oh, there it is. So if you see the existing law on page 11. Okay, so we do that of taking precedence for serving the individual. Exactly. So it's consistent, thank you. Yeah. Because I'm gonna ask them in the next section, I'm gonna ask the same questions, if you want to just talk about that. The next section. The next paragraph. Oh, right. The 48 hours. Oh, right. So yeah, so the return of service has to come back to the court, has to take precedence over other summons in orders. Now again, this is a different, you're sort of looking at two and three again here for a moment on the legal standard. See the difference here in the very beginning is subdivision two, the person doesn't relinquish, but the officer has probable cause to think they've got firearms. So that is your initial fact. And that happens, officer has to submit an affidavit and for a warrant to be issued. But subdivision three is a slightly different scenario. Then it doesn't relinquish, but the officer has a reasonable suspicion that the defendant possesses her own firearms. Now, obvious question is, well, wait, what's the difference between reasonable suspicion and probable cause, right? So, because they're different. They're different evidentiary thresholds. And the idea is there is more evidence that will support a probable cause finding and less evidence will support a reasonable suspicion. Reasonable suspicion will not support a warrant and otherwise legally speaking. Probable cause does. So as the courts have often said, the probable cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. However, the various efforts to define it, and that's a quote from a Vermont Supreme Court case, by the way, and a US Supreme Court case as well. The various efforts to define the term typically rely on the same concept. Probable cause means there are reasonable grounds for a belief and that the belief must be based on particular facts and circumstances. Those are quotes from a couple of Vermont Supreme Court cases. The US Supreme Court made a similar point, articulating precisely what reasonable suspicion and probable cause mean is not possible. So, I put that out there. It's an immediate principle to keep in mind. But the court went on to say, they are a common sense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, as such, the standards are not readily or even usefully produced to a neat set of legal rules. So, obviously, it depends on the particular facts and circumstances of each case. Having said that, the court went on to say in a different case, reasonable suspicion, oh, sorry, that's a generally probable cause means reasonable grounds based on particular facts and circumstances. Particular facts and circumstances are reasonable grounds. Reasonable suspicion is a less demanding standard than probable cause, not only in the sense that reasonable suspicion can be established with information that is different in quantity for content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. So there can be less of an amount of information and the information itself can be less reliable than the facts and circumstances that would go toward probable cause. So those are concepts that are useful to keep in mind because as you see, the two procedures that are proposed in the legislation depend on which threshold of proof exists. In the first one, if the threshold is these more particular facts and circumstances, the evidence is more established, then the officer has probable cause based on those facts, then the officer goes to the court, submits the affidavit, can get a warrant. Directly. Right, right. Exactly, but they don't have enough evidence, either not enough, or the evidence isn't similarly reliable, they don't have probable cause, but they do have a reasonable suspicion, some other lower level of evidence, then there's a different requirement and that's the line 10s and 11s that you were just referring to, line 10 and 11. Officers required to investigate the matter within 30, within, sorry, within 48 hours or as soon as practical. If the officer determines that there is probable cause to believe that defending has fire, in other words, they conduct this initial investigation and gather more evidence, determine, oh, now my level of belief about this has risen to the probable cause standard, then they, lines 13 and 14, they submit the return of service that just means they followed the process we just talked about. They develop probable cause, they go back to the procedure we just mentioned, they fill out the affidavit, they bring the return of service, they ask the court for a warrant. But if they don't, this line's 14, they don't determine the probable cause exists, so they've conducted this initial investigation, haven't come up with any additional evidence or enough to justify asking for a warrant, they still submit the return of service, but they have to include a statement that describes the efforts that were made to establish probable cause during the investigation. It's supposed to be something in the statement that says, well, I tried A, B, and C, but still didn't get enough facts to develop probable cause. So those are the two tracks. So then it goes to the court, right? This is subdivision four. This is, and then again, this is virtually identical language too. You looked at it previously when it was earlier in the procedure, but now it's later on. So the court has to issue the warrant. If the court finds there is probable cause to believe, A, there's firearms in the defendant's possession or ownership or control, while the order is in effect. Remember, that's illegal under another provision of the bill. And in fact, in some circumstances, they're already illegal under federal law. And then a search is necessary to protect the life, health, or well-being of the victim. Again, that might be just a track on the New Jersey Supreme Court case, similar provision there. And then just real quick point, Representative Goswant, you see there the immunity language you had mentioned earlier. It's all down here now as well. I got some new immunity language, an additional immunity I want to mention, but what you had identified earlier, that's lines 11 to 16 now. So it just got moved from a different place in the bill. It's forward to here. Actually, and lines eight through 16 are all identical. It's just moved. So Eric, this is a two-part test. The one is issued if A and B. Correct. Yep, exactly. So the law enforcement agency may be immune from civil or criminal liability for damage or deterioration. So let's talk about municipalities. Are they equipped to handle storage for these without deterioration? I think that's a, not a question for Eric, but we will have, hopefully the commissioner will address that. That's an important question. Right, Eric, I mean, that's not. Yeah, that's a good question, but not one that I have the answer to in my disposal. I didn't hear a discussion on the time. So does the legislature tell law enforcement the order in which they have to pay attention to different activities or their duties? Are you referring to the 48-hour investigation piece? Yeah, it strikes me as strange that we're dictating the order in which law enforcement has to conduct an investigation. And I don't know if that's something that a legislature does. Maybe there's some place in statute where we lay out priorities for investigations. I'm not, I think, sort of separate your question a little bit. In terms of prioritization of activities, I think, for example, sometimes saying, as we just, the service, yeah. But the 48-hour piece, I'm not thinking of another, I'll take a look, but I'm not thinking of another place where, with that degree of specificity, I'd say there is, and I haven't wrote for that. Or as soon as possible. But I'd just say it is, or as it is, correct? Yeah, I think that, but it still strikes me as strange to put a time limit on something unless it's something that you typically do. Is there still looking at a 48-hour stand? Well, Eric, maybe you can help us understand. If it is 48 hours, like, how does the 48-hour explore a student's practical, you know, how does that language work together? I think that, or as soon as practicable language does modify 48 hours, in what way a court would interpret that, I think they would have to view the 48-hour as not necessarily mandatory because of the option for a student's practical. But obviously, it means something. Right. So it might be a good question for someone who's representing the grant who would make those decisions. So, yeah, we're winning out a requirement for how law enforcement retains the war. Does this in any manner impact the discretion that law enforcement has with respect to service of the ward, other than saying this is a priority? In other words, it's discretion to determine safety precautions for serving the ward, timing of serving the ward, et cetera. Nope. No, it's just, the only thing it's talking about is it's relative priority. And process for getting the ward. Sure, that's right. Yeah. So one piece that I did want to mention, because it's another immunity piece, I mentioned the, and Representative Goslin mentioned as well, the existing, and this does exist already because of this whole process for when firearms are subject to seizure for relief from abuse orders. There's a separate section of law that was dealt with several years ago that does provide for how they are transported and how they are stored. And that language is just repeated right here in lines eight through 16. And that existing procedure also does provide for immunity to law enforcement agencies for any deterioration or damage that happens while they're seizing it, sorry, with transporting it, storing it, that kind of thing. But this provision here is new, and this is lines three through seven, some additional immunity for law enforcement agencies because it's sort of tied to these additional requirements that they are searching for firearms on the basis of RFA. So this provides them immunity from civil or criminal liability for, this is line four, for failing to learn of, locate or seize a firearm while executing a warrant. So it's not just to do with the transportation and storage. If you're law-executing the warrant they haven't learned about or found it or seized it, they can't be sued for that as well as they have immunity for anything that happens while they're returning a seized weapon or sorry, before returning a seized weapon to its owner, provided the owner is not a prohibited person for possessing firearms. So now if they end up returning it, they can't be sued for that either as long as the person isn't prohibited. So I read this is saying they, because it's an or, right? That they could learn of and locate the firearm and just not seize it and still not be held liable under this provision? I think it's for failing to learn of. But it says failing to learn of, comma, locate or seize. So I guess I'm asking if the seize operates intermittently of learning of and locating. Oh, I see what you mean. Like could they just say, yep, it's there, it's, I mean, does it just provide a blanket of immunity in the instance that they're aware of the firearm? Do you use not seize it? Yep, I see what you mean. I don't think that's the intent of the language, but that might be a cleanup that we're going to make if assuming that the committee wants to keep it and not go that route. Yeah, there might be an ambiguity there that needs to be corrected, I think. Would it be corrected by just changing the warrant to end under this? I mean, it's something we could work on later, but. Yeah, maybe, yeah. That's a new tip. You don't frame me. So I think we've taken most of the means so there's some stroke language here in subsection F is relating to Mary Paul, this was an initial thought in this proposal had been that there would be a separate proceeding, a show cause proceeding, but that's not going to be provided for anyway, it's not going to happen. So this was some reporting language for the court to report on the number of show cause proceedings that happened, but since there aren't going to be a show cause proceedings anymore, no reason to have the reporting for it. So that's the end of the warrant section. Now we're moving on to, and we're just about done, I agree, that's really the bulk of the changes between the past, previous draft and this one. Now we're moving on to street and risk protectional. Remember, those are orders that were established in Vermont a couple of years ago that allow a state's attorney or the attorney general to file in court for an order prohibiting a person from possessing firearms if the person's essentially dangerous to themselves or others, that's essentially the standard now. The proposal here, and you looked at this in the previous draft, was under the existing law that was passed a couple of years ago, it's only the state's attorney or the AG that can file for one of these third focus. So the proposal in the language that we looked at last time was to expand that to include family and household members, which a number of other states do as well. So the change in this draft, it keeps that option. So a family or household member could still file for an IRPOP, but the difference is, you'll see line 15, that if it's filed by a family or household member, it has to be done during the court's regular business hours only. So that's the proposal. Can I just back up and ask this question, if you address this in my memory, it was flipping out during it, I apologize, but on page 14 before we move into, maybe literally just like this, on page 14 before we move into the IRPOP provisions, wire line is nine through 12 struck. Because under a previous thought with the bill, there was going to be a procedure known as a show cause hearing. That's not the case anymore. So I'm sorry. That's okay. Yeah? I'm sorry. Yeah? Catch it up to you, Eric. That's okay. You caught my language, I'm going to give you the orders. So can you speak to why, and maybe I need to ask the presenters of the amendment, why it changed business hours? That's probably a better question for witnesses, for why. Generally speaking, I think it has to do with accessibility of court staff to receive these applications. So it's the concern that Judge Gerison raised for this testimony as far as anthropology and respect. I'm just, so what happens, because I imagine more family members would be doing this outside of business hours. It might be somebody gets drunk at night, but that's fine. So I'm just wondering how our people might be very vulnerable after business hours. They would need to go through law enforcement, essentially. The current process that we need to talk about. Okay. I mean, it's not for phone number hours, it's just that there has to be one of the state's attorneys between the people in the court, essentially. Yeah, so we're not saying to them, we need to wait until tomorrow. Correct. Only if they want to file it directly themselves. That's actually it. All the rest of it is just adding the family or household member in each instance wise. That's very, oh, this doesn't change either. You may recall, this is also a provision that remains in the IRFO section having to do with permitting health care providers to notify law enforcement officers when they think information is necessary to be disclosed when there's a serious or imminent threat to health and safety of persons in the result of firearms. And that's intended to make sure that that information can be passed on without letting HIPAA, Federal Health Privacy Act. And that does not change from the previous crime that you looked at. Nor is the conditions of relief section, conditions of relief section, sorry, which provides that one of the conditions of release that a court can order would include requiring and defending not to do the firearms or other weapons. And that's modifying, of course, can do that now. Correct. Yes, that's right. But they may, but again, in terms of consistency and what we often refer to as geographic justice, it may not be concerning, it's not your concern. Like I said, it may not be happening to you. This kind of by standardizes. That's right. Thank you, Eric. Very thorough. I know the committee, it took a while, but I think it was important to make sure everybody understands what's here. So for the record, my name is Jeffrey Wallin. I'm the director of the Vermont Climate Information Center with the Department of Public Safety. And it's simple, I'm really here to answer any questions. I do have a few statistics that may be of interest to the committee. I did work with some colleagues at the Federal Bureau of Investigation, the NICS section, who were actually due to firearms checks to gather some Vermont-specific statistics. So I'm going to share those with the committee to start the discussion. From January, 2017 until November, 2016, which is the latest I can get statistics and reports that I couldn't get all of 2019, they didn't quite have December's numbers ready yet. That's pretty good. So during that period, so basically 35 months or almost three years, there were 111,519 firearms checks done in Vermont. So period of three years, which is an average of 3,186 per month. During that period, the average number of denials per month were 23. So of the 3,186, 23 of those checks resulted in denials. But the firearm purchase. And the percentage of checks completed within three days of the initial request was 97.93% that are completed within the three day. Additionally, just to put a sense of scale on this, during those same 35 months nationally, there were 76,850,007 firearms checks conducted during that same period. So you can see we're a small fish in that much larger pond. So I was able to work with some colleagues at the FBI to get some of those Vermont specific statistics. And I thought that might be useful to have a sense of scale as any discussion around this moves forward. Thank you. Did you have the information regarding those that were not completed within three days and called in a denial or sent to ATF for a retreat? I didn't. I wasn't able to get any information on the numbers that were sent for a retreat. I can reach out to the ATF on that, and that's a separate inquiry, but I can reach out to ATF on that. And just one other question. Would the ATF have any information on why they were retreat, but why they received the retreat, the basis? What the prohibition was that they determined, I guess, as their point of view? I won't speak for them, but I don't know that they would. My guess is they're simply going to receive a notice from the FFL and or the FBI that their retreat is needed, but they're not going to go into why necessarily. If the ATF has a question, they could potentially get that from the FBI. Part of the challenge with that representative is there may be multiple reasons why someone has prohibited. Just as a refresher, there are, and I know Eric spoke about this before, there are a number of categories with someone may be prohibited and they may fall in multiple boxes. Some of them are more easy to identify. If someone has multiple felony convictions, that's a fairly easy thing to identify. If they are dishonorably discharged from the military, it might be harder. There are one of 630 approximate individuals that have voluntarily given up their citizenship in the United States. Those individuals are prohibited. It may be more tricky to nail down on that. So there may not be a single reason but multiple reasons why someone has a firearm. But when I reach out to them, I'll ask them if they have any statistics on that, particularly for Vermont. There have been some national studies done and those are useful, but they may not necessarily apply to any individual state. So I know one particular national study on the GAO report, and I don't know if you've had a chance to look at that. The Government Cone Ability Office did a report in July of 2016 analyzing data. And I don't know if you had a chance to look at that or have you seen that before? I did. I have seen that and I did have a chance to look at that. Any comments as far as the basis and whether that's consistent with your understanding of what's happening in Vermont or if you're able to just explain that? Probably the best perspective I can provide around that is one of the focuses of the report was on misdemeanor crimes of domestic violence. And there's a definition that exists for that and it may be more inclusive than individuals convicted in Vermont of a quote-unquote domestic violence crime where domestic violence is part of the statute name and the relationship thereof. And for those particular crimes, there may need to be additional research that is done to determine whether or not a victim and an offender, for example, a simple assault, someone is convicted in Vermont of simple assault. If the nature of the relationship between a victim and the offender meets a federal definition of a misdemeanor crime of domestic violence, that individual would be prohibited. It wouldn't be on its face apparent just from the fact that an individual was convicted of simple assault but they were a bring-with-it person and that relationship may not exist. That is one of the areas that requires the most legwork as I understand from talking to folks at the FBI next section where they have to do reach out and research on that. The IC comes into that particular discussion if the FBI next section is questioning that, they will reach out to us with information and we will point them to the investigating agency to get the narrative or to do any analysis that may help them make that determination. For individuals in Vermont convicted of actually domestic violence statutes, we actually preflag those as prohibited at the state level so that we've removed as much uncertainty as we can from that, but there may be circumstances where it's still not clear. I would also take the moment to point out that in Vermont, we have what I call sometimes a reverse economy of scale. We're so small, we're able to do things that larger states may struggle with. We have a reasonably unified court system and a fairly robust way that we exchange data with the courts and talking with my colleagues in other states just because of the physical size or population base, they may not have a single streamlined path to get data from the courts to the criminal history repository, which is one of the things that the FBI uses when they're doing a query to determine if someone is prohibited or not. We're fortunate that we have that good working relationship with the courts and that good data exchange. If someone is convicted in a Vermont court, chances are we hear about it fairly quickly and we can then make that available in some states that can be challenging if in a remote town or county court that doesn't share data with the state more largely to run down what is this person actually convicted of and is qualifying of that. We're fortunate in Vermont that we don't have to deal with that typically very often. That would be, as I read through the report, one of the key things they were looking at and that's something in talking with other states that has been a real challenge is how to try to pre-analyze certain misdemeanor convictions to see if they have a domestic violence component or not, which is something that's difficult for folks in the repository to do because it may involve legal analysis of federal statutes which we're not always prepared to do. Kind of jumping around a little bit, but of course you mentioned the three days and that brought to my mind the default process and I'm just wondering, I don't know if you have the numbers and it's a kind of a two or three part question in a sense. How many, in Vermont, how many firearms were, I guess the term would be sold or taken into possession because of the default process and out of those firearms, of course how many were, then people had to be investigated because it turned out there was an issue with them so they needed to, the FBI needed to go take those guns and it was during that timeframe when a prohibited person did end up with a firearm in Vermont, how many of those people committed a crime with a firearm? I'll start with the first question which is probably the one I can most directly answer and unfortunately my answer is going to be there's not really a way to know. After three days, as I understand it, a federal firearms dealer, if they don't have a response back from the FBI next section may release that firearm but they're not required to. So it to some degree falls upon the judgment of that FFL and I'm not sure that there's any way to necessarily track that short of speaking with FFLs directly and trying to have them analyze their records to determine when they did or didn't release a firearm to someone. There's nothing, we have a VCIC or the, I'm aware of it, where they can simply provide some numbers around that. So unfortunately I'm not sure how often that does or doesn't happen. That would then lead into it's very difficult to know how many individuals were potentially in possession of firearms when they, if I may use a term shouldn't have been and then how many crimes were committed by those individuals I'm not sure as well. There may be some. You said it'd be really difficult to get that information. It would be, it would be certainly from my perspective as the repository coordinator to get that information. I'll give you an analogy that we sometimes are asked that may sort of be helpful where we have a lot of information but drawing conclusions is challenging. I often get asked how many crimes were committed in Vermont so that the individual could then turn around and sell stolen property, finances, etc. to use that money to purchase drugs. There's no way for me to know with the burglary what the purpose of that was. Short of reading case files to try to determine in this case was it, in that case was it. There's nothing in the statistics that necessarily just jumps out at you. And to me that's kind of unfortunate because with the default process changes that we're talking, if there's no crimes committed in the end with a firearm that somebody wasn't supposed to have, fixing a problem we don't have. Colloquially, we've all seen national incidents where this has happened. It's been on the news where in the last couple of years there have been some shootings where an individual should not have had a firearm and they did. It's one of the areas where there have been some federal changes, the Fix and Ex Act, which may have come up to the committee prior. From my perspective primarily focused on federal data getting into this, but the federal government didn't always know what data they had because the federal government is a very large institution. But also there was some work at the state level for us to look at our records to make sure we were getting as much as possible and making that available. And again in Vermont we were in a strong position to make that data available when we have it to the next section. So we were in a good position there. So I don't want to tutorialize, we do know unfortunately there are instances where individuals get firearms where they shouldn't and they do commit crimes, but the prevalence of that is somewhat difficult to analyze. Okay. Yeah, Martin. Yeah, so the 2.07% default proceeds, just to clarify, that's not necessarily because they had to look at a Vermont record of the admission or any other kind of thing. It could be, it would be a nationwide. So we don't know what the problem was necessary. It may not be Vermont. And I guess the question for a lot of people can confirm that, but the question is, do you know about other states and quality of data from other states? It sounds like we do a pretty good job in Vermont getting their stuff into the mixed system on a timely basis that we have a separate domestic violence crime that can easily be flagged. But what about other states? What's your knowledge of it? So sure, the initial question, yes, for those 2.0% of individuals or transactions, I should say, is a better way to phrase it, it may or may not have anything to do with a question in Vermont. It could be that the individual, I'm from Tennessee, so I will default to pick on my home state of Tennessee as an example. It may be that there was an arrest, an arrest even, and an arraignment and an individual was arraigned for a felony, but they don't have a disposition for a person convicted or not, so they need to reach out to Tennessee to say what happened with this with the person convicted of it or not to get that information. Similarly, it may be that someone has a similar name or date of birth and they have a protection order or a warrant out for the arrest, and they need to verify that's not the same person. If there was a Jeffrey Wallin born September 12th, 1973, my birthday is December 9th, 1973, they may want to check back in a warrant or a protection order case, so they may want to double check that just to make sure. So it's any number of things, but it's not directly linked to an issue in Vermont. It's that between the 50 states, federal government, tribes, and territories, there may be some information that is not complete or unclear, and so the FBI and the next staff need to do that additional research. So the clarification for myself, for not only for domestic violence, how many cases in the last 35 months have involved firearms? So how many I'm sorry, could you rephrase the question? I want to make sure you understand what you're looking for. I'm only talking about my questions. I think you said you have the information for the last 35 months. How many domestic violence cases involved firearms in Vermont? So individuals that were incidents of domestic violence involving firearms, that's what you're looking for. I don't have that information available. I can certainly research it and see what we have. So you wouldn't know how many deaths happened with firearms during that time either. So we can get to it. I think we can have that test signed. Yeah, it sounds like you're going to be reaching out to ATF to ask a couple of questions. Could I see if I could piggyback onto some of the requests there? Just figuring out what they're when they're when they're sent over a retrieved order how often that happens in this state and what's their success rate in retrieving the firearm and how long it typically takes. Anything related to those types of things? How long? Certainly, I'm absolutely happy to reach out to them to find out the number. If they have any information on why they may not, but I'll ask what their success rate in recovering those arms in what it typically takes. I'm happy to ask those questions and see what they have. If they have anything else that's irrelevant I'll certainly gather that as well. Thank you very much. Any additional questions I can answer? Maybe just one more thing and I know it's been asked but you brought up to 35 months. Again, in Vermont, I'd like to know how many domestic violence people have left their partner that caused this then returned later and then the bad stuff happened. They were killed there. I'm not sure that type of analysis so if you're looking to see the number of individuals in the past 35 months that left a partner and then returned to commit some type of violence is that? Let's just say the woman was attacked or she filed the charges and then she decided she dropped the charges and they're going to work things out and then it happened again only this time it involved the firearm. That's really what I'm looking for and at 35 months time. So maybe has a temporary order doesn't pursue the finals? Right. She drops it they move back in together you know everything's broken out fine and then trouble there's a bigger situation. I'm not sure candidly I'm not sure from the information we have if we could assign that type of motive just based on arrest information there might be others who do more comprehensive studies of domestic violence that might be able to speak to that and if I can provide any data I'm happy to I wouldn't want to step outside of our expertise and provide you any inaccurate information. Thank you. I just if you could explain how our information from Vermont gets into the NICS system. Absolutely that's a great question and I appreciate that. The way I describe the NICS section and it's really a group of people NICS isn't a single list of prohibited persons but rather a group of people at the federal level that undertake analysis to determine if someone is ineligible or eligible to receive a firearm and to do that they query multiple data sources they have some fairly sophisticated architecture to do that. Among those include federal criminal history databases state criminal history databases the national crime information center which is where watch warrants protection orders etc. are entered into as well then they will check military records as I use it sort of as the individuals who have voluntarily given up their citizenship that's the state department that maintains that and makes that data available so Vermont provides their information to them electronically and it's really real time we don't send anything in the mail we don't email we update our systems and then the SDI NICS section have the data available to them at that moment and there's no real lag to it so when I get back to the office the courts have sent over a file and now an individual is now prohibited because they have a felony conviction then once that information is updated which we do it daily when necessary that information is then available to the FBI to make that determination similarly if someone has an expungement we process that it's also records of individuals who have been judged to be dangerous to themselves so then I would defer to the judiciary because they're the ones that provide that information for the next section that doesn't come through us because it's not actually a criminal not a criminal matter it doesn't come through us I do know and I would defer to the judiciary they have an automated process for that to make the data exchange so I would defer to them on the operations I don't expect you to know the answer but you might and you might be able to find out and it's got to do with what we're talking about the fix and one of the shooters a couple years ago was dishonorably discharged I think from the Air Force if I remember right and because things weren't done the way they're supposed to never got into the system as being a prohibited person how was that fixed so that particular I believe that was the Fort Worth Texas shooting I believe that's the case you're talking about as I understand in that instance the the military branch in question I believe that individual was actually had it was a domestic violence issue that led to their disarmament discharge so that information was not shared with the FBI it was a siloed in a DOD or Air Force only database so when that person went to the FFL and the FBI queried it they had no visibility into that Department of Defense or Air Force data part of that fix NICS acts that I mentioned which was a federal statute a few years ago required various federal entities including the Department of Defense with any other as well to make sure that the FBI any data that they had available to them and required some change at the federal level was fix NICS before that fix NICS was after that that's what I thought that was one of the drivers so to speak of that particular that particular change I apologize I'm kind of backing up because I just thought one other piece of information would be very valuable to know if you know it or the ATF and that is those default proceeds that subsequently were deemed to be to a prohibitive person that they have to do a retreat how long would it take to get to the point where ATF has been notified from the time of of the start of that check on NICS to the time that it was what would really be helpful was to know the average time or how much time it takes to determine that in fact this person should have been prohibited I know in the GAO report it had that kind of information nationally but I'm wondering if we have any of that kind of data for Vermont I will add that to my query to see I will say when I've chatted with either the FBI or ATF on this they work very closely obviously very closely together on that given that this is kind of a one hand in hand scenario but I will absolutely reach out to them and see the data that I received from the FBI we didn't contain anything of that nature but I'll check with the ATF and see if they have it or they can gather them from some area for Vermont specifically again there are some national statistics but I'm wary of promoting generalizing questions or information thank you very much did we give you enough work to fill your afternoon? no problem morning Eric Davis from gun owners Vermont first time I've ever done anything like this so pair with me if I'm a little bit nervous stumble through my testimony a little bit we'll try to do that welcome thank you very much I appreciate you guys having me here testimony today is mostly going to focus on the Charleston loophole part of the bill as the rest of it was changed obviously very recently and we haven't had a chance to really cover that thoroughly and give a good analysis but I have my prepared testimony here which I'd like to read you guys and I have actually a copy of it for everybody it's resources and stuff that I used to to get here we are the Charleston loophole to understand this obscure occurrence one must first be familiar with the process of purchasing a firearm when a person buys a firearm through an FFL a background check is conducted through the national incident criminal check or NICS system operated by the FBI under current Vermont law all transfers of a firearm including private sales must be done in this fashion upon enforcing the dealer of their intent to purchase the firearm prior to the buyer to complete the ATF form 4473 which I've enclosed a copy with my testimony so you guys can see what that looks like and produce a valid picture identification when the form is completed and signed the dealer then initiates the background check through the NICS system either electronically or by phone the moment the call comes through on the FBI's end the transaction is issued a unique identification number which stays with it throughout the process usually the instant background check is exactly that and will report back to the dealer within a few minutes one of three ways either proceed with the transaction denied which means the person has been found to be prohibited from owning firearms or delay which as we've heard means they need to do a little more homework on the buyer under the current federal law the FBI has three full business days from that point before the default proceed status is reached and it's important to notice that this default proceed order does not mean that the FFL must proceed with the transaction rather they have the option to use their discretion in such cases after the three day window is up and regardless if the transaction proceeds or not the FBI will continue to gather information and try to make a determination on the buyer for up to 88 days or three months past the original attempt to purchase until the federal law requires that the transaction be purged from the NICS system during this so up to 88 days 88 days after the three month window expires so a total of three months that the FBI will investigate into this person before the law says that it has to be purged from the system and they move on to you know whatever else they're doing um sorry during this time if the FBI determines the buyer to be a prohibited person that triggers an order of operations in response to that information and I've also attached a flow chart of the sort of an action flow chart for the NICS system of to how they handle different things that come up the FBI will first call the FFL determine if the transaction was completed they also call the ATF to inform them of their findings if the transaction was completed the ATF will then take measures to retrieve the firearm from the prohibited individual if the transaction did not proceed they will notify the ATF of the dial at which point it will be the ATF's judgment whether to pursue the individual for attempting to illegally acquire a firearm using the FBI data from 2017 approximately 31% of transactions turns up hits on the initial search which means that they inquired further investigation that didn't come back instantly 20% of those were completed during the three day window while the other 11% were delayed for additional research past three days ultimately the FBI found that 1.2% of delayed transactions resulted in denial this means that 98.8% of initial hits on the NICS system resulting in further investigation where false positives and the purchaser was not a prohibited person furthermore the FBI's own research shows that the NICS system allows a huge number of these delayed background checks to go uncompleted every year past the 90 day period the FBI failed to complete approximately 1.3 million background checks from 2003 to 2013 at another 1.1 million from 2014 to 2019 respectively now remember this a lot of this was before the fixed NICS came through and we don't have some up to date data if this has gotten better but still it's a big number prohibiting the transfer of a firearm while waiting on a large government agency to deliver a report could have profound implications for good people who seek to awfully acquire a firearm especially when compounded by such high rates of misidentification in the NICS system under this law lawful citizens could well be denied their constitutional rights indefinitely and with limited mechanism of appeal we believe the implementation of such provision in the current law will burden once again the burden will once again fall unfairly on the good people of Vermont we also think that it's prudent to acknowledge an important piece of context in that the right to keep and bear arms is the only right which is both protected by the constitution and also requires the prescreening of any and all individuals attempting to exercise that right we don't require background checks for peaceful assembly nor for petitioning our elected officials we don't require a background check for non-lawful search and seizure nor to have a timely trial by an impartial jury of their peers we do not require background checks to guarantee that our people should not be subject to slavery and involuntary servitude as protected by the 13th amendment nor is there any sort of vetting required for women to vote as protected by the 19th amendment we do not require a pre-approval to speak one's mind openly through the press or by individual expression and we certainly do not require it religious zealotries by far the leading cause of murder, oppression, and genocide over the history of mankind yet the idea of a public safety measure requiring people to obtain the government's permission each time before attending church sounds downright ludicrous as it should when it comes to the right to keep and bear arms which is at its core the fundamental right of self-defense with which we're all born and the right that preserves all the others we have only for the last 26 years impose this restriction which most everyone now considers to be routine article 16 in the second amendment have become the well it depends amendments regardless of one's personal opinions on the constitutionality of background checks for firearm sales the fact remains that we do require them and for the most part the next system does a good job of screening prohibited curses sometimes they even do a little too well as we previously indicated research shows the overwhelming majority of delays on the next system are false positives due to similar names and other assorted reasons I get delayed by a firearm quite often Eric Davis is out there sorry lost my play when this happens the best case scenario for the wrongfully identified purchaser is a delay in the sale and their ability to obtain a weapon for protection the worst case scenario which takes months of legal action and personal hardship to correct just to maintain one's rights in this scenario the question must be asked if we are not only violating this person's right to self-defense but also their right not to be deprived of life, liberty or property without due process of law is guaranteed by the fifth and sixth amendments the point is that even without this proposed change in law the system already airs heavily on the side of restricting people's rights on the chance that they might be a threat to public safety as the committee heard from Henry Perrill last week whose local firearms dealer with over 30 years of experience it's already extremely rare occurrence that a firearm is sold to a prohibited person past a three day waiting period in each case the ATF is immediately on the task of separating that individual from the firearm the term Charleston loophole which identifies this obscure corner of the law is a misnomer created by gun control advocates for what might be best described as a microscopic pinhole in an otherwise broad and heavy canvas of law it is disingenuous at best when researching this specific phenomenon we came up with some very interesting results after many hours of searching for a statistic on how many crimes are committed annually with firearms that slip through this alleged loophole we found clear documentation of exactly one the Charleston shooting itself for which this is named now this is not to suggest that no crimes have otherwise been committed with a firearm obtained through a default procedure but to recognize that the problem is so very miniscule that there is no observable data if in fact the problem even exists it also bears noting that upon completion of the investigation into the Charleston shooting the FBI determined that the drug possession charge on the shooter's record was a misdemeanor and not a felony which means that at the time of purchase the shooter was not a prohibited person under the criteria while this information in no way lessens the importance of the crime that was eventually committed it does show that the next system worked as designed this information also points to one very important conclusion and that is that for all intents and purposes the problem that this law proposes to address exists almost exclusively in theory given this information section one appears clearly to us as a solution in search of a problem and if implemented this policy will most certainly catch far more innocent people than criminals and we strongly oppose this part of the bill did you call me sir um you don't have to answer this but just wondering because you're the first person to come in here with some personal anecdote so if you wouldn't mind sharing what the experience has been like when your name comes up on the list and you're trying to purchase a firearm what is the process that you have to do to well sir um I absolutely I remember the first time it happened was actually up at the powder horn in Williston and I was attempting to buy a pistol and um you know I'm a gun guy I buy and sell guns I collect old military stuff you know so it's a fairly regular occurrence for me to be in a gun shop I filled out the paperwork like I always do and was waiting and usually the check comes back like I said almost instantly and the guy comes up and he said um sorry you've been delayed what do you mean delayed and he said well you know they're not sure they gotta do some homework you have to come back in three business days and I said ok well you know come back Saturday and he said well in the all three business days so it's actually into next week and I was kind of taking it back like well what do you mean I have to wait I'm not a criminal I'm not a felon you know I don't have any bad stuff on my record and he said well they're just not sure about you so I left the gun shop feeling you know rather dejected like kind of like my rights have been violated you know what the heck um but I mean that's the way the system works like I said they air heavily on the side of caution in such instances and you know after two days it came back and I went back and picked up the proactively do anything I did not no it came back and it's happened since then it usually takes about two days for it to come back but I have heard of you know numerous people where it does not come back and in that instance like you heard from Henry Perrow you know the FFL has a discretion that if you know we're not too sure about this guy they'll say they're still checking up on you so there are safeguards in place sorry in your testimony do you use when talking about the referral to the ATF it's like immediately on the it's immediately referred they're immediately on the job of using the word immediately is something I'm just kind of curious of what that what the is and sort of how that looks when it is the referral instantaneous does the firearm get or does it extend period of time do you know any of that information from your research I have I gain most of that from listening to Henry's testimony last week in his experiences that he I believe he said usually within 24 hours they're on the job of that but I don't know specifically if there's an average time or anything like that I'd be happy to reach out to ATF to find out I just didn't know if you because you I just didn't know if you had any data in there I do not have any specific data on the time that it takes them to retrieve the firearm thank you very much just a quick question you had a number of statistics do you have site history or the documents from which you I do I actually my testimony work excellent thank you you did great thank you here's all the copies of my testimony references and one for Mike if he got great thank you good morning for the record Brian Greerson the Chief Superior Judge offering testimony on H-610 the draft I have in front of me is 4.1 I did receive it late yesterday I have circulated it to the judges and I appreciate the opportunity perhaps to come back after I heard from more judges than myself with that in mind I would just go to assuming the committee has my testimony of mine from last week so I'll just go to the new sections so the first one I come to and the way the bill is set up understandably it talks about relief from abuse hearing but it talks about it first as a final hearing as opposed to an emergency the language that I'm concerned about is reflected both in both sections it's section 3a beginning on line 16 on page 4 that relates to the final hearing with respect to the emergency hearing page 7 being on line 12 through 18 the new language is found on line 16 I'd like to focus in on the emergency proceeding first I'm looking at this as the way I would it would be presented to me and obviously the emergency request comes first and if I understand in part the rationale behind both these provisions as we talked last week the idea was should it be mandatory that every temporary order and final order have the requirement of relinquishment and non-discussion and you recall my concerns about that from last week with the new language I don't think it changes anything and I'll explain why first of all the emergency process comes about by the individual contacting for lack of a better term I'll call it a hotline emergency line and then they're referred to a court personnel that court personnel could be a staff person or it could be someone contracted by the court consistently what I've testified to before that's because we have fewer and fewer staff people willing to do this on a voluntary basis we are now down to I'm going to say four counties where staff are still willing to do this so when we've contracted out with folks some of those folks are actually covering more than one county and for the most part they're covering it by telephone so the person that is talking with a court employee if you will or contract via the phone getting this information so I have always approached relief from abuse proceedings they are civil proceeding as opposed to criminal process the big difference for me sitting on these cases is that means that it's the individual who brings the claim the plaintiff who decides what they're looking for what relief they want and how long the order will remain in effect they control that this provision and again I'm looking at page 7 of the emergency there is no opportunity for me to gather any information that one o'clock in the morning other than what the staff person tells me in other words the individual contacts the staff person tells them the type of order they're looking for the staff person calls me gives me a summary or reads the affidavit of the facts and I either issue an order or I don't and I decide what conditions this provides that unless the court makes written findings by clear and convincing evidence that relinquishment is not required to protect the safety of the victim or the public so first of all there's no opportunity for me to explore with the individual or take any testimony and I need testimony and facts in order to make findings findings by the court are based on the evidence that's been presented more to the point with this requirement is if there is no evidence presented by the plaintiff that suggests that firearms were either part of the incident that brings them to court after hours or there's some history of firearms if there's no evidence of firearms there's nothing for me no basis, no factual basis for me to order a relinquishment and there's clearly no evidence by which I could find by clear and convincing evidence that it's not required to protect safety of the victim if the information, if the evidence has not been brought to us there's no basis for me to make such a finding I wouldn't have the opportunity or the ability to make written findings that's not the way the process works if if the individual and I know from the prior testimony and there's an amendment in the bill talks about the plaintiff did not want to be required to provide information about firearms they wanted to be given the opportunity if they so so desired we've got the page that's on but it's a change from if you look at page 6 15 through 20 the change there is the plaintiff made it says to permit the plaintiff to provide that information and so consistently what I was saying earlier about the court that this is civil proceeding that the plaintiff, the individual bringing it has to tell us what they want and the basis for it if they want an order if they feel an order of a relinquishment it is necessary they have to provide us the evidence and the committee may want to consider if that evidence is presented that under those circumstances the court shall order relinquishment if there's evidence of firearms before the court I'm not taking a position one way or another but that's that's what I think this is driving at in other words you're asking the court to make a decision based on the lack of evidence as opposed to saying to the individual this is your case you decide what you want and if there's evidence of firearms being involved in the incident or history involving firearms or whatever the concern is it's expressed that would provide a substantial basis to say relinquishment non-possession we need that evidence to do that I think it's also consistent with what we were saying last week about there are many types of restraining or requests that come before us and not every single one requires relinquishment some of them aren't even no contact no abuse or harassment so I would ask the committee to consider that but first of all we don't make findings written findings certainly we don't have the ability to do we don't we don't have any evidence before us other than what the plaintiff provides by way of asking so your concerns are the after hours yes that's why I'm focusing on them and I'll go back to the final because that's where the process starts I want the committee to understand I'm looking at this as it moves through the court so we would have findings by clear and convincing evidence is a higher standard of proof than granting the order for relief from abuse and we can't do it in a vacuum and that's the way I'm viewing this the other thing that I found interesting was that it says not required to protect the safety of the victim or the public these orders are designed for the protection for the protection of the individual bringing the action as opposed to for instance an IRPA order which the criteria for an IRPA order is this person represent the danger to themselves or others and it's a somewhat broader category and if you look at page 13 just by way of contrast on page 13 this is talking about the search warrant assuming that it's been granted and the police are searching as search and seizure of firearms is necessary to protect the life, health and well-being of the victim and that's that would be appropriate but I don't understand why on the emergency basis we're looking at anything other than protecting the victim so I don't think I can say much more about that part the same arguments there would be a little different beginning on page 4 which is really a final order so now presumably we've granted an order a temporary order restraining order unless there's evidence before us I don't think it's you'll find the situation where the court will grant the request for relinquishment there's no evidence to support that there's two ways it could come in for final here we could grant the temporary order or if the evidence we don't feel the evidence is there to warrant the granting of the order we could deny the order but every order that's denied the person is informed that they have the right to request a final here so it could still come in to us with or without the temporary order and again these are driven by the requests made by the individual these are cases where for the most part they are self-represented litigants and the court is always trying to balance the need to get information to make the decision without being an advocate for one side or the other or even being perceived as an advocate for one side or another and I have been in enough situations where the perception is sometimes greater than the reality and by that I and I've seen examples of someone feeling the court is favoring one side because they ask more questions on one side than they do the other so it's the perception oftentimes of how the court is proceeding that can make a difference what I'm getting at is again this is fact driven the committee that sits in this building that doesn't talk about evidence based decision making in terms of whether the legislature does and what we do day in and day out it's up to the plaintiffs to tell us what they want relief they're looking for and what they feel they need to be safe and so you're going to find that many judges and believe me not on myself but judges as a group as a whole understand the risks of danger attendant to domestic violence and the potential for violence that's increased enhanced by the presence for existence of firearms so it's not a question of the court not understanding the seriousness and the complexity of domestic violence but we still ultimately have to make our decisions based on the evidence that's presented to us so you're going to find that unless the plaintiff comes forward with the evidence to support the request for relinquishment judges will take the view many of that it is not their role to create issues that aren't created raised by the parties and so again I think you will find obviously I can't guarantee anything but it has been my experience that when the presence of firearms are before the court whether it's in relief from abuse proceeding or in a criminal proceeding where the allegation is domestic assault the court will act on that information and prohibit the possession of firearms as a mandatory but it's driven by the evidence we talked last week about the conditions of release that even though there's a part of this bill that asks that language about firearms to be made part of this statute what I said last week and what I said before when that issue comes before the committees we do that as a matter of course it's already built into the conditions of release and the chair asked about the other counties I haven't had a chance to hear from every county but the website where the courts go to get the order for conditions of release has a standard condition 13 that you must not buy, have or use any firearms or dangerous or deadly weapons these are the conditions that are imposed when someone comes in on a criminal charge of domestic assault it is almost a matter of routine for that box to be checked whether or not firearms are part of that particular incident because of the recognition of the risk it presents but when you're at that is a criminal offense the state is involved and the state will often ask for that condition but in the civil proceeding again it's the individual who is making the decision or asking us to make a decision and we can only do that based on the evidence so with respect to the final hearing again I think it depends on what is presented to us if the plaintiff does not indicate that guns are an issue it is entirely possible that the court will not inquire further having said that a final order if it's issued there's repercussions beyond and you're going to find that in some instances the court will order relinquishment with or without that evidence but in other instances the judge will not but they know that a federal order will prohibit the process so I'm concerned that this sets up again the standard of by clear and convincing evidence again we need having in mind that the plaintiff controls the evidence if they have not brought out the evidence of guns this would almost require us to ask the plaintiff questions but they may not want to ask and that's why they didn't bring the court in so we're caught in every situation deciding it hasn't been brought out even if I'm curious I have to make the decision in a given case is the plaintiff not asking out of fear that they will be the source of the court's order or that it's not an issue and that's the balance we have to address in every one of these situations this would force us to perhaps in the final hearing if it's left in that way to ask questions the plaintiff may not want to ask one of the representatives about how many orders are issued and then they're dropped that's not our decision to make and when that person says they want to drop normally in my case and I think it's true of most judges there will be a dialogue about the options that are available someone going from a no contact to a limited order of no abuse or harassment they can live together but ultimately it's the person making that decision I think that's why it's important to honor their decision attack and to honor their request up front of what they want they don't create the evidence bring the evidence to us I don't think it's our position to make that or otherwise try to create it so I just want to back up to what you were saying on the final order so if the issuance of the final order means that the federal law the individual is not allowed to possess firearms could the court then because once that order is issued the person is not supposed to have the firearms I understand why the court could issue a relinquishment order there or shouldn't just automatically because it's under federal law of firearms now the question though is it legitimate in that instance well maybe I didn't make myself clear the thing was that a final order is different and there may be some judges giving the facts before them and the history that's presented to them will order in addition to knowing that the federal is a federal provision may in fact order relinquishment of any firearms which could start presumably the process of law enforcement investigating to see if that there are firearms present that's one option or whether it's legitimate in that situation for the court to ask about the presence of firearms because they are would be deemed illegal once it was issued right but keep in mind that if the evidence isn't before we're just ordering relinquishment I can't speak for the police law enforcement I wouldn't attempt to but the essence of any warrant is what specific evidence is there and where is it located right and that's why I'm saying just in order to relinquish I don't think it's going to assist the police in searching unless they know unless there's more evidence and we may not have that so there's two components here I'm asking is one is it legitimate for the court in that instance in your view because once that order is issued possession of firearms is illegal under federal law is it legitimate for the court to ask any questions about that if the plaintiff hasn't brought it up probably it's in the court's discretion to do that I'm saying I don't know that every judge can do that under those circumstances but they may in fact order relinquishment without making that inquiry because there is what if we put in law that the court should in the final order I'm talking about make that inquiry to start getting that information then I'm going back to what I was saying earlier that if the plaintiff isn't presenting that evidence are they not doing it because it's not a concern for them or they're out of fear and by my asking those questions my then putting that individual at greater risk that's always the issue of the force so the next step though is are you issue the order it has relinquishment in there whether or not you heard from the plaintiff because it's tied to the fact that it's against law that way that it goes to the law enforcement for service and I mean it's separate from what the court is doing at this point what we do as far as if there's any requirement for the law enforcement to actually investigate to determine if there are firearms that need to be doing that so if again every case is different let's assume there's an order issue the court has not made the inquiry there's been no evidence but they order relinquishment because they understand or they know that there's going to be a federal prohibition and that order includes relinquishment and they go to serve the order and then they well two things can happen they can certainly talk with the individual separate apart the plaintiff separate apart from what happens in court about any knowledge they may have about firearms not only what firearms but where so that when the officer goes to serve the order they can have that inquiry with the defendant they may admit or rely on self-report at that time but once the order is issued the police may be able to develop a basis for them coming back to the court for a search warrant so going back to the order from the court relinquishment it would seem to me and you can comment on this that requiring the court to always put in relinquishment component in such an order is also of service to that defendant because you're essentially letting the defendant know if they don't otherwise know that now their possession of firearms isn't in fact against the law I can't tell you whether the defendant can see that as a service or not well admittedly but I mean it's a transparency it is providing that information which might not otherwise be known I can't can't speculate on that I wouldn't speculate on this I could but I wouldn't want to speculate but I think that's a different way the relinquishment would be ordered even without the evidence it's different but it's there and then it's up to again the law enforcement and the plaintiff would be that in any instance of any real basis for securing firearms or searching firearms the plaintiff is going to have to be probably the primary source of that information but that's why the police need to be involved before they issue a warrant to be able to have the best information available to Matt and then we're going to have to wrap up I've been asking a ton of questions so if someone else wanted if someone else was on the line anybody so we'll go with your question and then we'll break and then we'll come back after the I'm sympathetic to what you're saying about the awkward place that this could be putting the court in but at the same time I'm trying to figure out how we've talked about how the person who would be before you is probably in a pretty difficult situation usually self-represented so not necessarily getting information that he or she may need to know what they can ask the court possibly and sort of intimidate anything or try not to be too intimidating but it's still in front of the the process is intimidating and so I'm just trying to figure out how we do sort of level the playing field so that a person coming in at any point would know what they're can you see a path to making sure that anyone going through that process knows that they can bring up those issues if they are comfortable to make sure that that the court can evaluate that in a way that's somewhat different this is back for a minute to the first part of your question it's awkward for the court, it's not awkward that's what we do every day is this a balance whether it's this type of proceeding or another, anytime there are self-purpose evidence there's always a difficulty in the balance the court has to make in trying to get information and not being viewed as advocating one way or another and so it's not an awkwardness it's just that's what we do and that's what we have to do but in this situation I think that information has to come before the individual gets to court and how they get that information I'm not sure I have the path for it but if there are venues out there I mean when someone finds themselves in this situation certainly the advocates are out there they're able to reach out to them it's been a long time since I've viewed the a little piece of video that they have to appear in court both sides have to observe the video of what the proceedings are I don't remember off the top of my head whether that video even references prior terms, I should know but I just don't remember is that available on the others? it believes that it is because one of the things certainly if it's not now as we're going forward with our new case plan for the system it would be successful that way but it may in fact beyond the court page now I'm just not sure but that would be another if it's not there then maybe that's maybe it's time to update so the information has to come to them we can't be there to educate during the course of that proceeding but so it has to they have to have that information beforehand and make the decision actually trying to educate them in the course of that hearing would be overwhelming that's the difficulty and that's obviously these hearings are fraught with emotions and that that can change from the time they've requested the order usually within more than 10 days a lot of things can change I'm not sure I answer your question but I think that information has to come it gives me a flavor you can't educate them during the course of hearing so a follow up question is there some form that has to fill up for seeking an RFA there's a complaint form so it could be on a complaint form whether there are firearms could that be a question that's on such a form there is a question thank you so this is actually the affidavit that the person would have to file so when they make that call and they're connected with the court staff court personnel there's a complaint about the affidavit and that's the information which is related to the court via telephone and because of the reduced number of individual staff people that actually have person to person contact most of this is being done over the phone so the court personnel is essentially a scrivener filling in the blanks on this form and then taking the persons over so the question on this affidavit actually the first question is to my knowledge the defendant is or is not in possession of the dangerous weapon if we could get that form just so we can have it sure so I'm going to stop us here