Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Live. Hi welcome back to the House Judiciary Committee this Tuesday afternoon February seventeenth. We are turning our attention to S two zero eight and we are going to start with a walk through and then we have a couple witnesses after that and additional witnesses tomorrow. So welcome, Sophie. Thank you for being here.

[Zachary Harvey (Member)]: If you could give us a

[Sophie Sidatney (Office of Legislative Counsel)]: walk through. Yes. Good afternoon, Sophie Sidatney from the Office of Legislative Council. What I was proposing to do was just doing a quick walk through of some of the constitutional issues around this. And then there's a recent decision out of California, and I thought it might be helpful for the committee to have that information before doing the walkthrough, if that's Great. Yeah. That's good. And this is I'm gonna do a PowerPoint, but this is the printout of it. If I have permission to share my screen. Oh, I think I can still

[Thomas Oliver (Member)]: Thank you. Oh,

[Zachary Harvey (Member)]: One for Tom. I have one for good. Oh, for Alicia.

[Thomas Oliver (Member)]: Yeah. Can use that. So it's on your desk.

[Sophie Sidatney (Office of Legislative Counsel)]: All right. Yeah, so as I mentioned, this has been an area of unsettled law. Different And con constitutional lawyers and experts have had different reads on where this is likely to go. But we did just have a decision out of California. So California had passed two bills. One was called no secret police, and one was called no vigilantes. And they were both passed together in the the summer, signed off by the governor in in September. And those two bills, one dealt with masking and one dealt with identification of law enforcement officers. They were both appealed by the Trump administration. And there was a hearing held in early January, and the decision just came out last Monday from that. So we have a decision. It's from a district court, so the lowest level in the federal system. It may well be appealed. Right now, the decision is on hold pending until the nineteenth to give the administration an opportunity to appeal if they want to. There are bills, similar bills to what we have in front of you in a number of other states. I don't believe any of those have passed, but they're under discussion, and it's entirely possible that other courts would look at this and reach a different conclusion. But I just want to give you a heads up on the fact that we do unlike when this decision was being heard on the Senate side, there was no decision. And so now that we actually have a decision on particularly on one of the really key issues in this case. So just as a quick overview, the tenth Amendment to the United States Constitution provides that powers that aren't specifically delegated to the federal government are then retained by the states and the people. And this means that Vermont has what's called police powers over the safety, health, welfare of the citizens or the people within the boundaries, the territorial boundaries of the state of Vermont. And we have in our own state constitution, again, recognizing that the people of the state have the sole and inherent and exclusive right of governing and regulating the internal police of the same. So we are in a federal system. So there are these interlocking, balancing relationships between the federal and the state. But the state has the ability to regulate. So, for example, anything you chose to do, this was exclusively, if this bill was limited just to law enforcement officers within the state of Vermont, you would absolutely have the power to do that. Where this becomes tricky is when you're seeking to also have the same provisions apply to federal law enforcement officers. So

[Kenneth Goslant (Clerk)]: Is the challenge you said that the challenge coming to to laws that are similar to this?

[Sophie Sidatney (Office of Legislative Counsel)]: The challenge? It didn't In the supreme court or no? I It's at the it's at the court level in California.

[Kenneth Goslant (Clerk)]: Okay. And and they deem that that

[Martin LaLonde (Chair)]: laws similar to this are okay?

[Sophie Sidatney (Office of Legislative Counsel)]: Yes. We'll get into that as we go through. They struck down one of them, and I'll explain why in a second. Oh, okay. Sure.

[Zachary Harvey (Member)]: Oh, yeah, Ken, go ahead. Can we just back up that last screen? So state police powers, right? Maybe I missed this, but does that include municipal police too? They're all part of, it's all part of under the state police coverance or whatever.

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah. And I just wanna be clear. When you talk about state police powers, what they're really talking about is actually the power to govern within the state. It's not limited just to law enforcement officers. This bill is dealing with law enforcement officers, so it's a little sort of confusing. But when we talk about state police powers, that is just the power the state has to regulate how things function within the state. Right? Okay. So, yeah, just anything within the-

[Zachary Harvey (Member)]: Not necessarily just law enforcement.

[Sophie Sidatney (Office of Legislative Counsel)]: Not right, right. It's just confusing because we're talking about state police powers and law enforcement, but state police powers covers way more than just law enforcement.

[Zachary Harvey (Member)]: Try to keep me on track on that.

[Thomas Oliver (Member)]: Thank you.

[Sophie Sidatney (Office of Legislative Counsel)]: All right. So at the federal level, there's the supremacy clause in US constitution, and this is where a lot of the powers that the federal government has come into play. And essentially, again, federal law shall be the supreme law of the land. And so typically, the way this is dealt with is there's a claim that federal law preempts what states are trying to do. So that might be there are these three different types of preemption. So you might have one where a federal law explicitly says, we're deciding this issue. The states are not to to decide it. Field preemption where there's so much regulation at the federal level that it essentially forecloses the ability of of the states to do anything. Or conflict preemption where you've got a federal law and a state law, and you can't comply with both. There's just a conflict there. They're they're they're saying contradictory things. So interestingly, in this case, in the California case, The United States did not invoke express preemption, implied field preemption, or conflict preemption in challenging the the acts. So there is no federal and this is just a quote from from the judge judge Snyder who decided the the decision. There's no federal law or regulation that requires federal law enforcement officers to wear facial coverings or to conceal their agency name or badge number while exercising federal law enforcement duties. In fact, some federal laws and regulations require visible identification in certain circumstances. So there is a federal regulation that does govern ICE officials, that they are required to identify themselves as soon as practical when making an arrest. And similarly, there was a a law that was passed in 2020 following the George Floyd protests that requires federal officers to identify themselves when responding to a civil disturbance. So there are federal laws that would be consistent with what is proposed here in S two zero eight.

[Zachary Harvey (Member)]: Thanks, Chitt. Sophie, just when it says fear The United States is not invoking express preemption or the three different categories, that's talking about the Trump administration, I assume it's the attorney general's office, is not invoking that in the challenge to this case.

[Sophie Sidatney (Office of Legislative Counsel)]: Right, in the California case, that was not where they went to. That wasn't one of the arguments they raised.

[Zachary Harvey (Member)]: Okay, I just wanna make sure I understood that. That was the federal administration speaking there. Like it was, or it's speaking of the federal administration in that instance.

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah, so in essence, this bill is not in conflict with current federal In their bill, right. So what the what the federal government did rely on in their argument in the California case was what's called intergovernmental immunity doctrine. And, again, this is just established as an old case, but establishing that states can't interfere with the operations of the federal government. And so what's called the intergovernmental immunity doctrine is it immunizes the federal government from state and local laws that do either of two things. So one is regulate The United States directly or discriminate against the federal government and those with whom it deals. So that could also be federal contractors. So either one of those grounds, if those exist, then that's going to adversely impact the ability to move forward with the state law. So the real focus in in the bill we have, s two zero eight, was the focus of the California the two California laws was whether or not they regulate The United States directly. And that was kind of the legal question, particularly when we were on the Senate side before we had this decision that that was sort of where the action was. Like, we don't know how courts are going to come out on this. So what happened in the California case was that the first question, does a law enforcement identification and anti masking will regulate The US directly? The California district court held that no, it doesn't. It doesn't interfere with or control federal law enforcement operations, and they analogized it to traffic laws which are enforceable against federal officials. So, for example, you can't if you have a federal officer that is drunk driving and hit someone, like, you can prosecute them for that under state law. So or traffic laws. Right? You can expect federal officers, they're gonna have to, you know, yield at a yield sign, stop at a stop sign, etcetera. And so that was how the California district court analyzed the two California laws, was that they were not interfering with or controlling federal law enforcement operations.

[Zachary Harvey (Member)]: Can you give us an example, Sophie, of where the immunity costs would take effect for federal officers?

[Sophie Sidatney (Office of Legislative Counsel)]: Right. So if you were to say that federal officers, so, for example, there have been issues on their site. Texas wanted to move ahead on enforcing immigration laws. So they had requirements, and Arizona has done the same thing, where they go beyond what is federally required. And the Supreme Court has said no sorry, that's a different issue but that states can't regulate in that space because, again, you've got the preemption issue. But again, if you had federal officers were required to don't know. I mean, there have been just many examples where well, the one example that this case is that this document has come up from was there was an instance back in California a long time ago called In Ray Naval where there was a sheriff marshal who was protecting a Supreme Court justice. The Supreme Court justice was attacked, the marshal killed the person that attacked them. And the California then tried to prosecute the the individual who'd done the shooting for murder. And it was like, no, because he was ex he was doing his law enforcement duties. Right? He was defending the Supreme Court justice who was killed. There was another instance which landed up getting dropped, but there was the Ruby Ridge case where someone was killed. The wife of and I'm forgetting the name of the guy. They'll come to me. Randy. Do you believe Randy? Anyway, his wife was killed, was shot. And there was an issue whether or not the federal officer that had shot her had violated this. And it was held that the prosecution moved forward, but ultimately it landed up being dropped. So what the California courts was really emphasizing was, while there's some immunity that's provided to federal officers, it's not absolute. Right? But it's it's it's pretty broad. I mean, states you know, again, this is where the question is, where is that line on when you're actually regulating directly what a law enforcement officer can do? And here, the decision was that, no, this wasn't interfering with law enforcement operations. And again, analogizing it to a traffic rule, so that that's not interfering with your ability to, you know, to actually execute your duties if you're asking somebody to not wear a mask and to identify themselves.

[Zachary Harvey (Member)]: Okay. And so I know that the appeal hasn't been filed yet in the circuit in California, but we're part of a different circuit. Is that right? That's correct. So in theory, if something was challenged in Vermont or other states, the East Coast, it would not necessarily go to the same appeal.

[Sophie Sidatney (Office of Legislative Counsel)]: Right. So in California, would go to the Ninth Circuit Court of Appeal, and we're in the Second Circuit Court of Appeal. S two zero eight, as originally drafted, was based on a law that was being that is currently under consideration in New York. And one of the reasons for going in that direction was because New York's in the same federal circuit as we are. But again, this is the first case, this California case, the first case to actually look at these issues. So although it's, again, other courts may reach different conclusions, it may go up on appeal. It's It has. Right. It's what we have, and it's helpful to see a court actually go through the analysis and decide how these issues should should be resolved.

[Zachary Harvey (Member)]: Thank you.

[Sophie Sidatney (Office of Legislative Counsel)]: And then the second issue is does the bill discriminate against the federal government and those with whom it deals? So s two zero eight does not. S two zero eight covers federal law enforcement, but it also covers all our state local law enforcement officers. In California, one of their bills, the identification bill applied to everybody, and that was that passed the the and this was a preliminary injunction situation in California. So that that was held the the preliminary injunction was denied. But the masking bill did not apply to state police officers in California. It applied to some local officers, but it didn't apply to California state police. And the judge held that that this this test, there's the bill discriminate against the federal government, those with whom it deals. There's no de minimis exception. And so the court held that it was unconstitutional because it had a discriminatory provision in it. And needless to say, the the sponsor of the bill in California was like, well, I'm just gonna reintroduce the bill, and we're gonna make it of a California state police as well. So that will presumably move forward. But this is a distinction with the bill that you have in front of you. This bill does not discriminate in that way. It covers all law enforcement officers operating in Vermont. So, again, to the extent you see news stories about, you know, court struck down this bill in California, the reason they struck it down was on this discrimination piece. The the court did not strike it down on the the the previous question in terms of whether it directly regulated The US. The challenge in California was on the facial validity of the law, like and that was where this intergovernmental immunity doctrine came in. If an individual officer was found responsible for violating the law, they could raise the argument of supremacy clause immunity. So I'm just going to touch on this really quickly. And this would prohibit states from undermining federal rule by criminally charging officials who are properly carrying out their federal duties. So that's the NRA Nagel. I'm sorry. I was confusing before. But that was the one with the individual was shot in California. And this is a two part test, and it's an AND test. So was the official doing something authorized by federal law? Were the officials' actions necessary and proper to fulfill their federal responsibilities? So it has to be both of those two prongs. This is did not come I mean, this was discussed generally by the California court, but this was not, you know, what was at issue because that was a question about the validity of the law on its face, not an individual officer that was facing a prosecution. There was a question on the Senate side in terms of the difference between having a criminal penalty or having a civil penalty, and whether that made a difference. And it really doesn't make a difference at this level, and certainly the California court sort of pointed that out. You know, the the fact that someone could be subject to a criminal penalty is not going to then invalidate the law. But just so you're aware, the California laws do provide for a criminal penalty what S-two zero eight does not. It's an administrative civil penalty. I'm just flagging that for you. But these would be the two questions.

[Zachary Harvey (Member)]: So if you go back, sorry, just one slide, Sophie. So if those two can, if the NRA Nagel tests, for lack of a better term, if those two questions were answered in the affirmative, that would provide immunity to federal law enforcement. Right.

[Sophie Sidatney (Office of Legislative Counsel)]: From civil and criminal. Right. So again, if a federal official was charged under this bill, for example, what would likely happen is they would remove the case to federal court, and they would raise this defense. This would be a supremacy clause immunity defense. And then this would be the test that's looked at. And again, the Supreme Court has not really weighed in on the supremacy clause immunity in, I think, over one hundred years. This is a test that's been evolved at the federal level, but at the lower court level.

[Zachary Harvey (Member)]: And so and I I don't particularly like to get into hypotheticals, but given the instance of border patrol operating on the northern border in our state, if they were carrying out law enforcement action and they were authorized by federal law and they found that And I guess it's kind of subjective, It's a convenience of something that's necessary and proper. It seems rather subjective. I think the courts would have to opine on that. But if those two conditions were met and federal law enforcement never took their mask off to any circumstance, they could just go back to in my navel and say that we were operating with just cause.

[Sophie Sidatney (Office of Legislative Counsel)]: So this would right. That would

[Zachary Harvey (Member)]: be So it nullifies this?

[Sophie Sidatney (Office of Legislative Counsel)]: No, I think not. Mean, this right. Would be Right. This would be a a question that would then be discussed in the court. Right? Whether or not and then if you look at the next keep sticking. I apologize. There we go. So right now, again, there's no federal statute or any officially enacted policy or rule that expressly authorizes or requires masking by federal officers. And the other piece is that the Department of Homeland Security has said they're leaving it up to individual officers and their discretion as to whether or not to mask. So it kind of begs the question as to if the official's actions, for example, were necessary and proper if it's sort of up to them to decide whether or not they want to do that. And again, there is no current rule that authorizes them to be masked or to not identify themselves. So I think these are issues that would then obviously get debated in court.

[Zachary Harvey (Member)]: Who pays the civil fine? It would be the officer themselves or the DHS?

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah, it would be the individual. Now whether someone behind them pays it, I don't know. Alright. And I know you have a constitutional law professor coming up who I'm sure will be able to explain this much better than I did. So you will be able to ask her any of these questions. Alright. I'm gonna do a quick walk through

[Thomas Oliver (Member)]: There we go.

[Sophie Sidatney (Office of Legislative Counsel)]: Alright. So it starts off with the standards for law enforcement identification. This sets the legislative intent. Again, it recognizes that the tenth amendment of the constitution allows Vermont to protect the health, safety and welfare of its residents. And this is going to be providing that law enforcement officers present in the state have these identification standards. Law enforcement agency, again, is looking at the same definition that So I should just double back up here. So Title 20 is the internal safety title in our code, and this would be essentially adding a new chapter into title 20. But it would be looking at definitions that were already in title 20. So law enforcement agency, law enforcement officer, and again, it's a very broad definition in our in our current statute. And then it just simply adds in here that it includes any officer of a federal law enforcement agency or any person acting on behalf of a federal law enforcement agency. So, again, that's would be no issue if you were doing this, no constitutional issue if you were doing this without including the federal law enforcement officer, but that's where the constitutional concerns come in. The identification requirements are that a law enforcement officer shall be clearly identified by the officer's name or their unique radio or badge number visibly displayed on the officer's person. So when there was testimony in front of the senate judiciary, there was a recommendation to include the radio or badge number and the language of visibly displayed on the officer's person because some of the law enforcement officers in the state do not wear uniforms before the language was on their uniform, but they don't all wear uniforms. So that change was made.

[Zachary Harvey (Member)]: Well, I could do you mean that in terms of clothed officers? Is that what you're referring to by not Right.

[Sophie Sidatney (Office of Legislative Counsel)]: So they were testifying, right, there are a number of law enforcement officers that wear just business dress every day. They're not wearing uniforms. And then this would also require that the officer's agency be visibly displayed on the officer's person. And then the prohibition in section subsection two, a law enforcement officer shall not wear any mask or personal disguise while interacting in person with the public in the performance of the officer's duties. Again, the bill was amended to add in the in person language to make clear that, again, if somebody's, for example, working online, doing we will see later on in here, there's talking about sexual exploitation of children, but often we have law enforcement officers that are working online, checking things. They're not in person. So, again, that requirement that they not be masked or wearing it or be in disguise would not apply. So this is really when they're interacting in the public, in person.

[Kenneth Goslant (Clerk)]: We have law enforcement come in here all the time, and sometimes they're in a suit. Does that mean that their suit is now going to have to have their whoever they're working for on it, and they're going to have to have their badge?

[Sophie Sidatney (Office of Legislative Counsel)]: I think as long as it's on

[Kenneth Goslant (Clerk)]: their suit?

[Sophie Sidatney (Office of Legislative Counsel)]: I think as long as it's on the the badge, the agency, the name, and their badge number or radio number. So that information can all be on the badge.

[Kenneth Goslant (Clerk)]: I know some police officers have something that goes on their belt, am I right, with badge on it? Would that suffice?

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah, as long as it's visible and then people can see it, so they're aware of the agency.

[Kenneth Goslant (Clerk)]: The codes aren't gonna be visible,

[Thomas Oliver (Member)]: have all that required information. Name, number.

[Sophie Sidatney (Office of Legislative Counsel)]: And agency. Then it has a list of exceptions here under three. So these are times when a law enforcement officer may wear a particular kind of mask. So these are a variety of situations. And and n nine five respirator medical grade mask to prevent transmission of airborne diseases, protection against exposure to smoke during water rescue, related to exposure to biological or chemical agents. And then the last one is exposure to cold. Originally, the the bill, as introduced, talked about when there's a a a sort of declared weather emergency, there was concern around that because, you know, for what? We don't declare weather emergencies that often. And so the language that's in here is the language that's taken from the the emergency shelter program. This is when the emergency shelters come into play. So that's what the proposed cutoff is. And then there are a number of situations where it's permitted to where I'll

[Zachary Harvey (Member)]: just go back to the National Weather Service section, Sophie. Yes. I'm curious what the intent of the provision is looking to avoid. Is it frostbite? Is it wind chill? Is it hypothermia?

[Sophie Sidatney (Office of Legislative Counsel)]: Right, so this would be minus 10 degrees Fahrenheit, which includes wind chill. And again, this would allow people to wear a protective face covering if they're out when it's bitterly cold.

[Zachary Harvey (Member)]: Well, it's just interesting because I was doing some research on this rough shot before you came in, and with some older individuals, and I'm not going to opine on what older is, but you can go into hypothermic. I

[Martin LaLonde (Chair)]: don't want offend

[Zachary Harvey (Member)]: anybody, but you can go into hypothermic conditions in a home that's 60 degrees overnight. That's just, I'm just kind of curious why we arrived at minus 10 because I mean, I wear a parka when it's 40 degrees out and because it's I'm just kind of curious of what that specifically is looking to prevent, because I think just wind chill at minus 10 below, mean, that's like Arctic temperatures.

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah. So again, the concern in Senate judiciary was around having something in there that was not just a declared weather emergency, because that just seemed too unusual in Vermont.

[Zachary Harvey (Member)]: Yeah.

[Sophie Sidatney (Office of Legislative Counsel)]: And so this was the proposed language was to tie it to something that already is used. And so this is what the is used for the emergency shelter for homeless folks.

[Martin LaLonde (Chair)]: And we can definitely ask we have a

[Zachary Harvey (Member)]: lot of law enforcement witnesses coming in Kilmore, and we can definitely ask them to vote about these different exceptions. So

[Sophie Sidatney (Office of Legislative Counsel)]: And then there are some additional

[Kenneth Goslant (Clerk)]: Yeah. Sorry. Yeah. It's along the same lines in temperature. It's gonna pretty much ask us if they're ask and say the same things. You can get frog at 32 degrees and below. I think that's like I know it's not your decision, but I'm just curious if anything like that came up that you can get frostbite at 32 degrees. I mean, having to wait to minus 10, whether there's no wind or wind or whatever seems

[Sophie Sidatney (Office of Legislative Counsel)]: So there was a lot of discussion around the the temperature one. The other the other thing that we've pointed out was that it's when interacting in person with the public. So it's not that you can never wear a face covering. It's just when you're interacting with the public is when you need to not be masked. So it's not that you can't wear one at all. It's simply when you're interacting that people can see your face when you're interacting with them.

[Kenneth Goslant (Clerk)]: Again, I know it's not you, that was another thing I was going to bring up that Zach brought up, depending on somebody's age and health and that type of thing, they might not be able to take it at 15 degrees, where they feel they need a mask to be able to breathe that warmer air. I think we're gonna have some

[Martin LaLonde (Chair)]: discussions. One

[Thomas Oliver (Member)]: thing jumping out at me reading it is, was there any discussion regarding criminal justice counsel not being the broker for any type of punitive penalty towards a law enforcement officer. Instead, we came out I'm already as a law enforcement officer, I'm already easily, I can violate any civil or criminal law that anybody else can violate. And now we have a civil penalty that's directed only at law enforcement officers, but there's already a layer of protection for law enforcement officers it bears penalty, and that would be the Criminal Justice Training Council.

[Sophie Sidatney (Office of Legislative Counsel)]: So yeah, we can get to that in just a second. So then there's some addition I just to understand

[Unidentified Committee Member (time-bound override)]: what it's a truth thing. What it's tied to?

[Martin LaLonde (Chair)]: Oh, what the 10 degrees was tied to?

[Zachary Harvey (Member)]: Yeah, just want to

[Unidentified Committee Member (time-bound override)]: I think I might be making an assumption, and I want to check that assumption with you. So currently, is it to

[Sophie Sidatney (Office of Legislative Counsel)]: for people who are unhoused to qualify for emergency shelter? It's when communities start putting up the emergency shelter. So communities can provide emergency shelters, you know, at other times. But I think for for reimbursement purposes, once it hits that trigger and then they put them up, then there's reimbursement involved. And that's not my area of expertise. But I I've got the policy. I can I can share it with you?

[Unidentified Committee Member (time-bound override)]: So just to be clear, you've agreed as a state that it can be 32 degrees, and people will not be reimbursed for standing up emergency shelters.

[Sophie Sidatney (Office of Legislative Counsel)]: And that language does change periodically. Even the timing, December 1 to April 1, and the inbox, I think it changes annually. Okay. Thank you.

[Thomas Oliver (Member)]: And I also noticed, as long as we're talking about temperature, there's no time of exposure, because that has a lot to do with wind chill and temperature.

[Sophie Sidatney (Office of Legislative Counsel)]: Right. Like, again, like, you're interacting with the public. So how long are

[Thomas Oliver (Member)]: you interacting with public? Hours or fifty five minutes.

[Sophie Sidatney (Office of Legislative Counsel)]: Right. So a couple of other exceptions here. So, again, for officers protecting their faces from physical harm while performing DSU responsibilities. Those are essentially your SWAT teams. Subdivision B law enforcement officers working with or in conjunction with the Vermont Drug Task Force who participate in active undercover drug related operations or assignments may use a personal disguise when necessary. And then law enforcement officers who participate in active undercover investigations relating to child sexual exploitation may also use a personal disguise when necessary. There was testimony in the Senate judiciary from the Vermont Criminal Justice Council. And again, there was concern around different agencies around the state handling it in different ways. So there was a recommendation that the criminal justice council establish a statewide policy governing those standards, and then they would have an additional again, assuming if this were to pass and and be effective as of July 1, it would give them six months to have that display. There was also a discussion around sort of professional misconduct and under the Vermont Criminal Justice Council. And this would be a category b, which if you violate a policy that's being put out by the criminal justice counsel, is how that would

[Thomas Oliver (Member)]: So if I have a category b violation of the criminal justice counsel, do I not

[Zachary Harvey (Member)]: get a thousand dollars of what's it doing?

[Sophie Sidatney (Office of Legislative Counsel)]: I don't know that that would be the case. I think that's the yeah.

[Thomas Oliver (Member)]: I don't know that it's an existing problem already. That's why I'm a little taken by this.

[Sophie Sidatney (Office of Legislative Counsel)]: So this was yeah. Again, this was a request to make sure that it's a statewide policy, so it's not being handled differently in different places. And there was also a question around, you know, professional misconduct. And rather than including something specifically in here, having the statewide policy that would then trigger the category B under the criminal justice council. So

[Thomas Oliver (Member)]: we're having

[Sophie Sidatney (Office of Legislative Counsel)]: So it could be both, right? Could be that you would receive a penalty. So

[Thomas Oliver (Member)]: if I get a thousand dollars of a violation, I might not get called in for a category b violation or vice versa. And so some might get both. It's nothing to determine which it's gonna be. One's handled in the courts and one's handled

[Sophie Sidatney (Office of Legislative Counsel)]: by the Right. And then depending

[Thomas Oliver (Member)]: on penalties.

[Sophie Sidatney (Office of Legislative Counsel)]: Then depending on what the the penalty is, again, there are all those sort of just force factors that they look at. There's there's, like, 12 different factors they look at in terms of what the level of discipline would be.

[Thomas Oliver (Member)]: So it could be a real reasonable expectation to move this off from a civil violation and put a standard best practice in to the criminal justice council in writing that we all know we have to abide by at an appropriate category of violation if we don't follow it?

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah. So this is the statewide policy would be by the Vermont Criminal Justice Council that would affect Vermont law enforcement agencies. Again, the the goal here is to also loop in the federal officers, and you can't discriminate by treating having them, you know

[Thomas Oliver (Member)]: Well, I get that.

[Sophie Sidatney (Office of Legislative Counsel)]: Have any different approach.

[Thomas Oliver (Member)]: Right. I I understand. I just didn't know it was a problem with Vermont law enforcement.

[Kenneth Goslant (Clerk)]: I don't want anybody. So

[Sophie Sidatney (Office of Legislative Counsel)]: then the penalty provision, as we just touched on, is a civil penalty. So it's up to a thousand dollars for the first offense and then $2,500 for a second or subsequent offense. Okay.

[Zachary Harvey (Member)]: So if you just scroll up, Sophie, on the fees, the $1,000 and 2,500, I'm just wondering if where they were derived from, if there's a similar schedule for other civil penalties where you pulled this from.

[Sophie Sidatney (Office of Legislative Counsel)]: Those were just what the committee- Just arbitrary. But the committee came up with those.

[Zachary Harvey (Member)]: And I assume they were informed by some I'm just kind of wondering, and I can always obviously talk to a Senate machine or others on the committee, but I'm just curious where that lingered, like why 1,000, why 2,500? I see that there's no cap in terms of how many times an individual officer could be charged this. So I mean, if you had multiple incidents, I mean, if it was a very cold winter and it was a cold week and there was a lot of law enforcement activity, you could have an individual charged four times and they're paying $10,000 in fines.

[Sophie Sidatney (Office of Legislative Counsel)]: This was- That

[Zachary Harvey (Member)]: just seems draconian to me.

[Sophie Sidatney (Office of Legislative Counsel)]: Yeah. So this was discussed pretty extensively. The penalty phase was whether to have criminal penalty, whether to have a civil penalty, whether to have civil and then for multiple violations, you get to a criminal. So there was extensive discussion with the committee on on the best approach, and this is where they landed up on the final version.

[Zachary Harvey (Member)]: And is there precedent for it? I guess that's kind of what I I wanna get to.

[Sophie Sidatney (Office of Legislative Counsel)]: There there are. Yeah. For those you mean for the amount of the fines? Yeah. Yeah. Yeah. There

[Zachary Harvey (Member)]: are. Like, what are those offenses? I don't know off the top of

[Sophie Sidatney (Office of Legislative Counsel)]: my head. Could look for you and tell you.

[Zachary Harvey (Member)]: Yeah. That'd be great. Thank you.

[Martin LaLonde (Chair)]: Is the California law a criminal penalty or civil penalty?

[Sophie Sidatney (Office of Legislative Counsel)]: So California law does have criminal penalties in it as well. So they have a willful and knowing violation, punishable or infraction or misdemeanor. Criminal penalties aren't applicable if the law enforcement officer was working for an agency that has a policy. And then any person who commits assault, battery, false imprisonment, false arrest, abuse of process or malicious prosecution while wearing a facial covering in violation of the law shall not be entitled to assert any privilege or immunity for their tortious conduct against the claim of civil liability, and she'll be liable to that individual for the greater of actual damages or statutory damages of not less than $10,000, whichever is greater. It's definitely more punitive than what is proposed in this bill.

[Thomas Oliver (Member)]: Thank you.

[Kenneth Goslant (Clerk)]: Wonder if the senate had any union representatives come in for any law enforcement agencies, and if it this has been a butt up against any contracts.

[Sophie Sidatney (Office of Legislative Counsel)]: I don't recall there being any discussion around union contracts. They did have a number of witnesses, and I don't have that this right in front of me, but it's it's on the website. There were a number of I think you're seeing you've got a number of them coming back in here, the same folks that testified in senate judiciary. But there was no to my recollection, there was no discussion about how this would interact with the union contracts.

[Zachary Harvey (Member)]: Yeah. Only because you've heard from the California statute, there was a phrase that no infraction if the agency has policy. Or what was that you had

[Sophie Sidatney (Office of Legislative Counsel)]: said So very in the California law, they provide they have a requirement that every agency has a policy, and they post it on their website, etcetera. And so if a law enforcement officer works for an agency that has a policy, then they don't face the criminal penalty. So I think it's an incentive, I assume

[Zachary Harvey (Member)]: agency to cut the policy. I mean, seems reasonable, whatever that policy might be.

[Sophie Sidatney (Office of Legislative Counsel)]: In this Right. And again, different approach here, but it's to have the federal justice council just develop a policy that then would apply statewide. So again, really

[Zachary Harvey (Member)]: Right. I guess my concern goes to what representative Oliver was saying, is that it seems like two divergent systems that are trying to provide hopelessly, at least the way it took.

[Sophie Sidatney (Office of Legislative Counsel)]: Well, the state Vermont Criminal Justice Council wouldn't have any authority over any federal agency, over any federal law enforcement.

[Zachary Harvey (Member)]: They couldn't enforce the law that's passed anyways.

[Sophie Sidatney (Office of Legislative Counsel)]: They can enforce the penalty provisions that are listed here, but the the criminal justice council is overseeing state law enforcement. I

[Thomas Oliver (Member)]: was just gonna mention, like, California, I don't believe they have a a central law enforcement education oversight group. I think it's by department that that would, go to figure why they had that policy. If have your policy, then you'll be exempt from criminal. We don't have that same network. Or concern. Right. But if we we only had a if we had a standard like that for for Vermont law enforcement only, like I would we were just talking, then we wouldn't be able if we didn't include Vermont law enforcement, then we wouldn't be able to because of the supremacy.

[Sophie Sidatney (Office of Legislative Counsel)]: Right. And then the final section on this is just amending the judicial bureau jurisdiction that's entitled for. Just it lists out all the different things that the judicial bureau has jurisdiction over, and this would just add in that it would then have jurisdiction over enforcing the penalties in this particular case.

[Zachary Harvey (Member)]: I'm just curious if this came up in conversation. If a law enforcement officer was stopped and they were injured, harmed, or killed, would there be remediation for the families of law enforcement victims? Did that come up at all?

[Sophie Sidatney (Office of Legislative Counsel)]: No, there's a public safety officer benefit at the federal level that I believe is up to $460,000, a one time lump sum for officers killed in the line of duty. But that wasn't part of this discussion. The the federal government did raise the argument around being doxed as a justification for why folks were masked. Mhmm. I think the California court noted that any public figures, right, including legislators as well as others, face those same doxing and online abuse issues that that, you know, law enforcement officers face. So that was certainly something that was discussed at California court.

[Martin LaLonde (Chair)]: Any other questions? Thank you very much. That was a thorough walkthrough, lots of questions on that. Helped us understand. Thank you for the help. Lots more from our

[Sophie Sidatney (Office of Legislative Counsel)]: law enforcement. Professor Bowman Posen, I'm sure you'll correct anything I've read that was wrong or give better examples.

[Martin LaLonde (Chair)]: Alright, so we'll go to Professor Bohlman Posen and after her testimony, will take a short break before our last witness of the day. So thank you very much for being here, Professor. If you identify yourself for the record and proceed to weigh in. Thank you.

[Jessica Bulman-Pozen (Professor of Law, Columbia University)]: Hi, good afternoon. Thank you for having me. My name is Jessica Bohlman Posen. I'm the Betts Professor of Law and also a co director of the Center for Constitutional Governance at Columbia University, where I have taught since 2012. Previously, I served as an attorney advisor in the United States Department of Justice's Office of Legal Counsel. I'm happy to have a chance to talk with you today about S-two zero eight. I think Sophie did a terrific job walking you through the legal questions that will arise from the bill, so I think I will be much shorter in my testimony than I initially intended so as not to just repeat matters and maybe just underscore a few points that she already began to tee up for you all, then I'm happy to answer any questions you may have. So the first point I just want to underscore, again, has to do with the police power. As she explained, the police power is best understood not to be limited to police, but really to reflect the fact that in our constitutional system, states have plenary power to act to protect the health and the safety and the welfare of their people. This is different from the federal constitution's grant of authority to the federal government, where the federal government is one of limited and enumerated powers. States do not have to look in the Constitution for a grant of authority to act in the first place. They have pre existing plenary authority and that is reserved to them by the tenth amendment. So most protections for liberty, for security in our country come from state and not from federal law. As Sophie also explained, the main questions about a bill like S-two zero eight are not therefore whether the state has the authority to adopt it in the first instance, which it certainly does, but whether a supremacy clause challenge based on the federal government's supremacy over the states would succeed. In our constitutional system, most supremacy clause challenges to federal law are preemption challenges. As she explained, there is not likely to be a preemption challenge and certainly I think not a successful one to S-two zero eight. And the main reason for that is just because there is no federal law that speaks about masking one way or the other. If there were in fact a federal statute that governed masking or even a federal regulation that carried the force of law, it would be an entirely different question. And so that is something that could change in the future. But as it stands, there is no federal law speaking to the question. And so we're really dealing with just federal executive branch decisions. And I think as far as I can tell, just the discretionary decisions made by individual officers about masking. And so a preemption claim would be unlikely to succeed, unlikely maybe even to be brought. So that brings us really to the important legal issue, which is intergovernmental immunity. The heart of intergovernmental immunity doctrine is discrimination. And as Sophie explained, that was fatal to the California bill. I'll note when the California bill was introduced, it did actually evenly and equal handedly, even handedly and equally cover state and local, as well as federal law enforcement. That would have saved it from what ultimately became the successful legal challenge, that it was discriminating against the federal government. And the concern about states discriminating against the federal government, again, goes back all the way to Chief Justice Marshall's opinion in McCulloch versus Maryland, and it has really been at the core of intergovernmental immunity doctrine in the centuries since. The basic idea is states should be willing to hold themselves to the same standards that they're attempting to apply to other actors, including federal actors. The way the Vermont S-two zero eight is drafted does not present any discrimination claims. It applies to state, to local, to federal actors in the same way, even handedly. And this has been a critical feature of the bill. It's one in talking to the Senate that I emphasized. It's one that I'm glad to see remains, and I think it saves the bill from any discrimination problems. So then lastly, the question is, does it amount to an impermissible direct regulation of the federal government? And this is the hardest question about a bill like this. There's not, as Sophie noted, much doctrine, certainly not much Supreme Court doctrine. But I think Vermont has a very compelling argument about its constitutionality. And with respect to the question that was asked about how we think about where the line is between direct regulation that is impermissible and other forms of regulation that might be permissible. I think the important way that the Supreme Court has described this distinction turns on whether what the state is doing is attempting to, in the Supreme Court towards, control federal officers as they carry out their duties, as they carry out their employment, or instead whether the state law is simply affecting the mode of carrying out the employment. So the traffic laws that Sophie mentioned come from a case Johnson versus Maryland, in which the court said the state of Maryland couldn't require police, excuse me, postal workers to have a state license to be able to do their job. They were authorized to do their job by the federal government, but they could be required to comply with general rules, traffic rules of the sort. Sophie mentioned that regulate something like turning, the court said, at the corners of streets. And so insofar as a bill that requires state, local, and federal law enforcement not to wear masks except in certain contexts, and to identify themselves, I think is best understood as affecting the mode of carrying out their work. It doesn't amount to the kind of direct regulation that would be impermissible, for example, if the state purported to say that federal officers could not arrest individuals, something that would speak, in fact, whether the officers could carry out their duties, could carry out the assignments they have been given by federal law, rather than simply affecting more incidentally, the mode of how they're carrying out that law. So I think that is the really key distinction. It is a complicated one, but I think Vermont has a very strong argument as to why it is not directly regulating the federal government, and it is certainly not discriminating against federal government. So there's much more to say on all of this, but in the interest of protecting your time, I'll stop there and just see if there are any questions I can help answer.

[Zachary Harvey (Member)]: Thanks, Chair, and thanks, Jessica, Professor Palinpozzi for being here. I guess my first question is wondering whether you're in support of the bill as written. And I think I know the answer to that, but I'm just kind of curious if you can provide your justification.

[Jessica Bulman-Pozen (Professor of Law, Columbia University)]: Yeah, so I do support the bill. I think, again, it's not a law professor question so much as a policy question, I would say I think the double concerns that, and as far as I understand, the bill is addressing, on the one hand, incidents that we have seen reported around the country of people impersonating law enforcement, people engaging in dangerous and unlawful behavior, including kidnapping from wearing masks and seeming to be law enforcement, I think is a concern that should be taken seriously and that the legislature should be addressing. And secondly, when it comes to law enforcement itself, I think in a free society, we do not have masked police except in the special kinds of circumstances that are provided for and that the protection of individual safety and liberty is a really high order of state legislation. So I support the bill for those reasons.

[Zachary Harvey (Member)]: I appreciate that. I wouldn't want to opine on the political illusions there, but I'm wondering if you've advised on any other specific pieces of legislation similar to this. Were you involved with the California legislation at all?

[Jessica Bulman-Pozen (Professor of Law, Columbia University)]: I've not provided official testimony in California. I have talked to other law professors and other actors around the country about state measures of various sorts and their constitutionality, because I'm a federalism scholar. I have a lot of different conversations I'm a part of. The only other state that I have provided any kind of official testimony with respect to is I submitted a written memorandum in New York.

[Zachary Harvey (Member)]: And I guess just to double click on some of the work that you've done as a scholar, I think some of it has focused on resisting federal directives and executive orders that have been issued by the current administration. Is that right?

[Jessica Bulman-Pozen (Professor of Law, Columbia University)]: Resisting could you clarify?

[Zachary Harvey (Member)]: I guess mean, resisting federal directives. I mean, right? Not if a municipality or a state came to you and were asking your opinion on very specific instances where they did not want to abide by an executive order issued by the president, then that would kind of be your subject matter expertise.

[Jessica Bulman-Pozen (Professor of Law, Columbia University)]: It potentially could be. I haven't, to my knowledge, advised on that, but I believe in our constitutional system that the states as separate sovereigns have independent responsibility to uphold And the so I have certainly written in accordance with that belief.

[Zachary Harvey (Member)]: Yeah. So I actually read some of your academic work before testimony today. And so there's a specific piece called States and the Strongman, I think, where you talk about some of this, as it relates to the federal administration. So I would love to send that to Nate, who just may include it in the record as one of the academic pieces that you've authored, but I'll go back to the chair.

[Martin LaLonde (Chair)]: Okay, any other questions for professor? I don't see any. Thank you very much. It's good to have the expertise on how our federal system is supposed to work. So I do appreciate that. And we will take a break until ten after, and then we will have one more witness on this