Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Back to the house judiciary committee this Wednesday afternoon, February twenty fifth. We're gonna our attention to h one seven one, and we're gonna start with a walk, then we have some witnesses. Over to you, Michelle. Thank you for being here.

[Michelle Childs (Office of Legislative Counsel)]: Thank you. For the record, Michelle Childs, Office of Legislative Counsel, and we're looking at H171 as introduced. I just wanted to start out by saying the bill this morning, this is another one that I did not initially draft but have picked up for this year. So I don't have all the, necessarily, the background information. Again, I'll point So it is at least from a staff from a language And it's pretty straightforward. So you're working in final three in the chapter having to do with the attorney general's office. And this bill has to do with providing some guidance to the attorney general's office around investigations of officer involved shootings. So if you look at the language on the first page, section one, adding a new section to the Attorney General's chapter. Definitions section, we're using definitions that are already in regard to your definition for law enforcement agency and law enforcement officer that are already codified in Title 20 and your public safety title. Look at page two. Subsection B is that the attorney general may commence an investigation, so it's discretionary, it's not mandatory, into any law enforcement officer who unholsters a firearm in the performance of the officer's official duties. So I just wanted to point out that as it was originally drafted, so it's called, naturally, to turn general investigations into law enforcement officers' use of a firearm. But the language that is in here is around upholstering a weapon. So I don't know if we have the benefit of Well, having a I don't know whether or not that was intentional or It

[Rep. Ian Goodnow (Member)]: was an oversight by by me, and and that was corrected by representative Oliver over there. I believe there's some language to propose that.

[Michelle Childs (Office of Legislative Counsel)]: Okay. Sure. I just wanted to point out and just we can do whatever you want. Just wanna be clear on the policy when we do it.

[Rep. Martin LaLonde (Chair)]: Oops, you're

[Michelle Childs (Office of Legislative Counsel)]: So subsection C in Subdivision 1 is that any investigation commenced pursuant to this action is to be completed within ninety days after initiation, although there is an exception in Subdivision 2, which is that investigation can exceed ninety days when the incident investigated involves multiple individuals who were either shot or physically injured by the law enforcement officer's use of firearm. Subsection D is that during the course of the investigations, community general's office has the responsibility to prepare and submit a written report to the officer as well as the officer's law enforcement agency that employs that officer. You'll see in the subdivisions the one of three things that the report has to contain at a minimum, which is a statement of facts, a detailed analysis and conclusion of each investigative inquiry issue, and three recommendations concerning the filing of any criminal charges and proposed changes to law enforcement policies that may be at this vehicle. Subsection E is a directive to the Attorney General's Office to adopt rules with regard to this particular section. And those rules have to include a standard of review for any investigation commenced pursuant to the section and timelines to review each incident investigated. On the last page, on page three, also ensuring public access to information concerning the procedure and timelines for any investigation and any other considerations that the Attorney General is necessary. Because it was something that was introduced last year, does have an old date. If I could date it, but if you decide to proceed, we'll need that.

[Rep. Ian Goodnow (Member)]: Great questions. Go ahead, Ian. So because this bill is proposing to create an investigatory requirement for the agent's office, does that mean so right now, with investigations that are being done, what is compelling? Is there something compelling in those investigations?

[Michelle Childs (Office of Legislative Counsel)]: I think probably your witness from the attorney general's office can talk to you about how they make those decisions. Generally, we see the attorney general's office getting involved oftentimes when there's a conflict within the county, and it wouldn't really be appropriate for a state's attorney to be looking into investigating an officer that they're working with directly all the time. But I think in terms of the protocols and when, how they go about doing the investigations, how long it takes, complicated it is, do they have to bring in expert witnesses, or is it a pretty narrow scope of investigation? And I think hopefully Todd can talk to you about those things.

[Rep. Ian Goodnow (Member)]: Yeah, excellent. Okay, thank you. Do you have

[Rep. Martin LaLonde (Chair)]: questions? It's pretty straightforward, so we'll go to some other witnesses in the have Joe Toro and

[Officer Jeff Bauer (Burlington Police Department)]: Jeff Bauer.

[Rep. Martin LaLonde (Chair)]: Jeff Bauer, okay, yeah. Jeff, if you want, we were supposed to have an officer here from Rutlander invited and events, and they couldn't make it. But if you wanted to sit up there also in the witness chair, I'm sure you've I I know you have things to add potentially,

[Rep. Martin LaLonde (Chair)]: though.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: If you both wanted to go up there Yeah.

[Rep. Martin LaLonde (Chair)]: That's great. That would be great. You can go after Phillips. Want me to speak separately? Outside. You can speak separately. Yeah, can do separately.

[Rep. Martin LaLonde (Chair)]: Okay, great. That works too.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: Can you take a time out for one second? Yeah?

[Rep. Martin LaLonde (Chair)]: In recess. We'll stay live. A bit of a preview of things. I did get the budget memo over to appropriations. Also at 02:00 we're gonna have to switch Blue Bird to Sullivanville because that's when Joe Fonay is available. He's probably gonna take a few minutes, and then we'll go to Julio, and then we'll swing back around to this since we had a little bit of a late start. Yep. So we may be pushing Todd back again, but we'll see. Heads up.

[Rep. Ian Goodnow (Member)]: You They have to fight house, Joe, which I'm game for. Well, we can take house.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Yeah. Can't say this.

[Rep. Martin LaLonde (Chair)]: We'll put Todd up against him.

[Rep. Zachary Harvey (Member)]: Alright. Over to you. We'll see

[Rep. Martin LaLonde (Chair)]: if got any for the record and and and proceed.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: Good afternoon. My name is Joe Coro. I serve as the president of Vermont Order Colonel Order of Police State Lodge. I represent three twenty two law enforcement officers across the state of Vermont. We are an organization of criminal police of about 400,000 members, throughout the country. I've been a police officer with the Brooklyn Police Department for nearly twelve years. I spent my first nine years assigned to patrol where I served as a field training officer, continue to teach patrol procedures focused on officer safety tactics. I'm currently assigned to the Detective Services Bureau, specifically in the drug unit. I serve as a team leader on our emergency response unit. I'm also the immediate past president of the Burlington Police Office Association, FOP Lodge twenty one. During my time in that role, was involved in multiple critical incidents where that were reviewed by the attorney general's office and assisted officers as they navigated that intense and difficult process. So I appreciate the opportunity to speak on this issue. I want to begin with accountability and transparency specifically. Law enforcement officers are held to a high standard every day. It's no surprise everybody knows that. We're expected to conduct thorough investigations and bring them to a timely conclusion. In my current assignment, even high profile cases, are expected to move forward once all available evidence has been collected, with limited accept exceptions, as long term narcotics investigations designed to build stronger prosecution. Most major crimes are investigated and resolved within a matter of months. We also have to recognize that cases submitted to the attorney general's office following a critical incident are complete investigative files. They may require some follow-up, but overall, they are complete investigative files. They have cooperative subjects and witnesses. Evidence is generally all there for them to review. Thoroughly vetted, supported by physical evidence typically involved, like I said, cooperative witnesses and subjects. The major crime unit of Vermont State Police consistently conducts professional and thorough investigations of critical incidents statewide. Historically, those investigations were submitted to the attorney general's office and resolved within a few months at the extreme. Prior to 2020, it was common to see officers either cleared for duty or formally charged within approximately sixty days. So the previous, I can go back to our current chief Burke when he was involved in a officer involved, shooting back in 1998, I believe it was. Forty eight days was when he received his answer. I will fast forward to two years or a year and a half after I became a police officer. An officer that I went through the academy with, who I was good friends with, He was involved in a shooting in Burlington, downtown Burlington. Fifty five days is how long he waited for an answer. Whether you

[Rep. Ian Goodnow (Member)]: what year we were

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: That was 2015, I think. So, and then we got to 2020 and past 2020, that has completely changed. Officers across Vermont often wait close to a year for a decision now. During that time, communication from the attorney general's office is minimal. I wanna be clear. I'm not here to jet to to badmouth the attorney general's office. I'm just stating the facts that I'm seeing from where I'm standing. The perspective of the law enforcement community is that this creates appearance of a double standard. So officers are expected to work efficiently, meet deadlines, provide regular updates in the course of their duties. Yet when the professional standing and potentially their entire future is at stake, they are frequently left without meaningful updates for extended periods of time. Accountability and transparency must apply consistently across the system. There are practical consequences to these extended review timelines. Officers placed on administrative leave to start with later moved to restricted duty do not receive the same level of training as full duty police officers do. While on leave, they receive zero training. In the years since 2020, community leaders have consistently called for better trained police officers. Prolonged review processes directly undermine that goal. Policing is a profession built on repetition, judgment, and experience. When officers are sidelined for extended periods, critical skills degrade. I see this personally when I step away from patrol. So I work generally in the drug unit right now in plainclothes. I on my own choice, I I attempt to work five to ten hours of patrol a week if it's available because I know how quickly my skills degrade if I don't do that. And it's very obvious. You can see it in a in a month of being in a role like that, how fast things just kinda disappear for you. Like, you have to continually be doing the things to stay up to date on. It's very easy to forget stuff. There's so many things, as you all know, that we're trying to stay up to date on. It requires you to be in it at all times as much as possible. So sorry. I just lost my voice here. Yeah. Sorry. So I see this personally. I wanna step away from control. Constant immersion sharpens performance, and the current process works against that principle. Retention and recruitment are already significant challenges in this profession. You can say it across the country, but specifically in Vermont. It is a free agency Vermont right now. It is what agency is going to pay you well, what are the benefits, what are the support, all those things matter. Right? And it is very much free agency. You can jump from a from PD to PD because we are a statewide jurisdiction. We all go to the same police academy, so it's easy to move from place to place if you want to. And generally, a lot of agencies fall under VMRs, so you can just move your pension back. Your pension doesn't go anywhere. Just move place to place, you sell the same pension. So we very much have to focus on recruitment retention. Specifically at my agency, we lost 40 police officers after 2020. Between 2020 and 2023, we have not recruited those people back, and we our retention is is poor. So we are struggling in that sense. And when I look at if I'm a prospective police officer thinking about joining a police department and looking at the states because I don't have to stay here. Right? I can go to the places to the places to work. This is something that first of all, if you're talking about laterals, so somebody from another state coming here is going to consider, they will. They're gonna look at this type of thing because this has a huge impact on their life. A new officer is gonna take the time, is going to be looking into these things. And if I can go to New Hampshire and be cleared in, say, a month or two or three months, or I can come to Vermont and possibly be sitting on sidelines for a year, those are very different things. I'm gonna go with the one where I don't have to worry about that scrutiny for that entire amount of time. And that scrutiny that I'm gonna have on myself, not just that's the scrutiny that can come from everyone else. So getting into that, though, we're talking generally about, you know, officer wellness. And I think this is I heard you talking about it earlier, heard it being talked about earlier, but I do think in this specific thing, it is overlooked. When this happens, the officer wellness is completely overlooked. So just going back to the prolonged waiting period, my department itself has lost officers during this prolonged waiting period. And I'm concerned that continually, if we keep doing this, we're just gonna keep losing people in that process.

[Rep. Karen Dolan (Member)]: Thank you. I I apologize. Just hear what you're saying in the appropriate context. Yes. Because what you're describing is current state. Right? And I guess my question is, what is the guideline or statute? Or is there any current state of how these investigations are done? Is that what we're trying to create here, or is there something that we're working with?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I want what we're trying

[Rep. Zachary Harvey (Member)]: to create is a time

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: is a clear guideline and timeline that can be followed for the process. And right now, from where we stand, it appears there is no guideline or process. It's just your case goes from the state police to the attorney general's office, and then it sits to the attorney general's office while they do what they need

[Rep. Thomas “Tom” Burditt (Vice Chair)]: to do that, while it

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: goes to experts that they choose to do that. And when that ends, we do not know.

[Michelle Childs (Office of Legislative Counsel)]: And is it for because in

[Rep. Karen Dolan (Member)]: this one, it's very clear that it's when a firearm is unholstered. Is there a a line of, these cases go to the attorney general's office?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: So I wanna be clear, and I pass forward some language. That portion, I would like to see changed. Yeah. The language I would be speaking to is is more around the lines of when an officer discharges their firearm in the commission of their duty, when someone is injured in that that, incident. Like, those types of cases, which are generally what go to the attorney general's office.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: You could think

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: we can think to officer involved shootings, the the tragic individual that was hit on Chelburn Road and was killed in that that incident that was not a officer involved shooting, but that would have been a critical incident that then was reviewed by the attorney general's office. So it it kinda depends.

[Rep. Karen Dolan (Member)]: I think just if I can get you're saying there's not really a structure, at least that you're aware of. And so this bill is trying to put a structure in place or at least make it transparent.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I need yeah. We're going we're going through some transparency here as well as a guideline and a timeline. So when I when I say to an officer as a union rep, here's how the process works. I can give them an outline of the process right now, but I cannot give them a timeline at all. I can't even give them the most of the time I can give now is it's gonna take probably a year. That's my guess. From everything I've seen over the past five years, the year is the average right now.

[Rep. Karen Dolan (Member)]: Thank you. Just helpful.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: Yeah. Absolutely. Please. I'm happy. I'm just reading through this because I wanna get some of these points across, but I want to answer questions.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I don't have that feedback.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: I have one question. Yes. So number of years ago, it was forty, fifty, sixty days, whatever. Yes. And then around 2020, which is COVID time, that's the type was it COVID issues that you think made this change? Or

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: do not. But I gotta believe

[Rep. Thomas “Tom” Burditt (Vice Chair)]: that if we were still around, you know, the the fifty, sixty days or even eighty or ninety days, we probably wouldn't be here.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I I would not be sitting here right now having this conversation.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: Right. Right. And and so I guess how how did COVID change it?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I would let attorney general's office speak to that if COVID did change it. Okay. I'm not I'm not convinced that COVID was what changed it. But I'm not gonna speak to something that I don't know the answer to.

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: Right.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: So I

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: will let I will let another expert on that speak to that. So just going back to officer wellness. So I'll walk you through kind of a quick example. In a lethal force incident, an officer responds to a rapidly evolving threat, makes a split second decision, then immediately enters this process, which is very intense and can be very isolating, especially at the beginning. They're removed from the scene, taken to a hospital, photographed, separated from their equipment, and transported home. Within days, they'll sit for a detailed interview with Vermont State Police Major Crime Unit. Then from there well, prior to that, they're already placed on administrative leave. When you're placed on administrative leave, you are hired from your workplace for a period of time. And ultimately, you're restricted from full duty until you're cleared by the attorney general's office. I'm giving you a very truncated description of this process, but what follows is the important part. It's the months of uncertainty. And every day, even when you believe that your actions are lawful and justified, you just relive this incident over and over and over. I myself have never been through through that specific incident, but I've been through enough incidents in my career to know how many times I've replayed certain incidents in my head to see if there was a better way to do it. And that being the case, it's incredibly jarring and it's incredibly tough on your mental health as you continually go through that process. So you continue to analyze it over and over and over. You're questioning every decision you make. You're waiting for an outcome that may not just alter your career, your reputation. It's gonna alter your life. It already has to a point that I cannot fully explain. That that trauma of having to take somebody's life or even seriously injure somebody in the commissioner duty, that stays with you no matter what. But let's add on the other side of it of not knowing how this is going to end for that officer. So the isolation in the beginning is incredibly real, and there's still an isolation that goes through it even after you've had time to give your interview and all of that because you still feel very isolated from everyone else. You're the one dealing with this, and you don't know what the outcome's gonna be, and nobody can give you an answer, which we understand. That's the way it works. There's a process that has to play out, but that process cannot extend for three hundred days. There has to be a way to shorten that process. The big concern I have when it comes off to wellness is what are we what are we creating there? We're creating a risk of dependence on substance use, creating a risk of not using good coping mechanisms. We may be creating a risk of of suicide. And if you know anything about law enforcement, officer, officer line of duty deaths, suicides are double to triple the amount of line of duty deaths. So I don't wanna increase that by a process that can be worked. We can collaborate and come to a solution for this process, especially when there's other states to model and to look at that are doing this in a reasonable amount of time.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: The other states have a statute with timelines?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I cannot tell you that. Can just tell you that I know from experience that other states' timelines are they're a lot faster with the timelines.

[Rep. Martin LaLonde (Chair)]: There

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: obviously are certain states with a full agency directed to do this all the time, and they are able to clear incidents in three weeks. But I'm not speaking to that because there's a lot of states that do not have that and are still able to do this in a reasonable amount of time. I do not consider three hundred days. I don't even consider seven months a reasonable amount of time unless there isn't some serious extenuating circumstances. It's just too much time for somebody to sit and wait for an answer. That may mean it's one of two things. Right? I'm justified in my actions, and my career continues. I'm not justified in my actions. I'm being indicted or charged, and I may my whole life is about to change completely. Those are two very different things.

[Rep. Martin LaLonde (Chair)]: Ian, excellent.

[Rep. Ian Goodnow (Member)]: Thank you very much for your testimony. Really, and thank you for taking our questions. You're welcome. The an officer needing to be taken off of patrol duty when there's investigating investigation pending, where does that requirement come from?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: That they have to be on leave? Yeah. So the the way that it works is it's this is until it's completely resolved, this is a criminal investigation. So they can't continue to perform their duties while they're being investigated for a criminal investigation.

[Rep. Ian Goodnow (Member)]: And is that, like, a statute that obligates that or a policy internal policy? Or

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: Generally, for us and for all agencies, it's internal policy. I would have to pull the statute to see if it specifically speaks to that. But it is an internal policy that when you're involved in critical incident, you're placed on first administrative duty, your administrative leave. And then eventually, after a certain amount of time, you'll be brought back at least an administrative duty function.

[Rep. Ian Goodnow (Member)]: And then also that determination about how long they're on leave, how long they go to administer, is also an internal policy.

[Officer Jeff Bauer (Burlington Police Department)]: That's a very

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: much an internal, usually internal decision in general. I will tell you there's not a policy specific states how long it's going be at our agency. It's mostly based on them having had good services and then also if they're ready to come back and if there's work for them to be able to do at that time period. Yeah. So we ask officers to confront violent and chaotic situations on behalf of the public. Those situations result in critical incidents. We owe them a process that is thorough, fair, transparent, and timely. Delays of this magnitude serve no one, not the officer, the agency, or the community. If we're serious about accountability, professionalism, public trust, we're not sure that critical incident reviews are completed with both rigor and reasonable speed. Our officers deserve clarity, and our community deserves confidence in the system. The integrity of this profession depends on that. I just stand by the fact that we need an established timeline that provides updates from the attorney general's office. If my stance on this is, and this is my opinion, ninety days if you get to ninety days and you still have not come up with a solution, there's no answer. Every thirty days going past that point, the AG's office should be passing along an update to the employer and the employee where that sits, what the status is, what's happening next. And I know one of the holdups heard it through a couple different people. I believe it to be expert testimony or expert witnesses. State police has been given the authority to conduct these investigations. They have the ability to view the reasonable standard. They are police officers themselves. Their findings can lead you to if it's justified or not. From that point, if you need an expert and you cannot get one in a reasonable time, it may be time to consider for the state an expert in house, like a position that is their sole job. And then branch out on that as you will. You have that expert in house. If you don't feel that they have that's that there's not enough things they'll be doing, there's a great place for them to do training at the academy and things like that. But if that is the holdup here, if the holdup is that we need an expert to review almost all of these cases, then an in house expert would

[Rep. Ian Goodnow (Member)]: make the most sense to me.

[Rep. Karen Dolan (Member)]: Thank you for the second question. I don't know if you would have it or maybe you just know where the information would be. Is there data on kind of I'm not gonna know the correct wording of things, but these investigations and, like, how many are resolved in under ninety days, how many are after. Like, is that something that we can we have access to and we can see?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I don't know of a place that keeps the table of data showing, like, this incident was investigated. Maybe it was on the attorney general's office website or somewhere else Okay. That lays out that exactly. I can just go off of all the ones that I know at our agency and outside of our agency that have been over three hundred days.

[Rep. Karen Dolan (Member)]: I just feel like that is important for us to have, not to say do not believe you, but to have that accurate information. And if we're going to change something, then to be able to measure, did what we do actually lead to you or below 90, whatever the threshold is.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: I think you maybe will ask that question a different way of asking how many in the last five years have resolved in, say, under ninety days or under six months. There's probably a shorter list. Okay. But there's not

[Rep. Karen Dolan (Member)]: a place where that data is.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: Not that I know of. Doesn't mean there is not.

[Rep. Zachary Harvey (Member)]: I full heartedly agree with Representative Dolan's point. I just think having the data and having that additional transparency in this process, even for the sake of accountability, in guaranteeing an expeditious review on these cases, really critical. Even if the data doesn't exist in the consolidated place, and I'm sure that the attorney general's office will comment on this, maybe it's something that we can require in this bill. Before I go to my line of question, just want to say thank you to you and your officers for your service to our state. Solsace. I really appreciate it. I think something that a previous witness brought up in terms of officer wellness was a really important point that wasn't something that I had in my line of questioning coming into today, but I think it's it's a really important takeaway that I personally take away, and I'm sure that other colleagues on the committee are taking away as well, something that we need to consider when practicing this legislation to make it the most effective that we can. Something else that you you spoke about even beyond officer wellness, you know, the officer that's involved in the shooting in their wellness, you know, in the line of duty, in in the workplace, but also their families. And I think that's something is that, you know, behind every man and woman, you know, that wears the badge, there is a family that's in turmoil behind this, not knowing, you know, are they gonna keep their job? Are they not? There's media scrutiny that's involved in this. I mean, this is a very public thing that very few of us experience. And so I just you know, I really my heart goes out to those officers that are are dealing with this on on the front lines because it it can really uproot someone's lives. I think anything that takes almost a year, three hundred days to be resolved is fully unacceptable, fully unacceptable. That's why we're all here in this room is to hopefully provide clarity and transparency. My question, specifically looking at the ninety days, do you think that is a long enough timeframe? Do you think it could even be shorter? I

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: will give the ninety days as the longer portion. Sixty days was the average before. I guess my question would be, what changed what did what are we doing different now than we were doing before 2020? Right. That's what that's what I need to fully understand. And I'll tell you right now that I don't fully understand that, and

[Officer Jeff Bauer (Burlington Police Department)]: I wanna understand that.

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: But even if that is the case, there's gotta be a way to shorten this this window because this is incredibly too long

[Rep. Zachary Harvey (Member)]: right now. Yeah. And I would just say, even from my experience, seeing some of these things, not officer involved shooting investigations, but in corporate America, you have insider trading allegations or, you know, other instances where someone's being, you know, investigated for misconduct, it's I I can tell you they're ruthlessly efficient. I mean, it could be twenty four hours, and someone is out the door, or it's resolved within twenty four hours. Right? There's there's no wrong doing this when found. My other question is looking specifically at the attorney general's office. And I'm curious if these investigations are actually I mean, we you talked about the your belief that it would be great to have an expert witness in house with the attorney general's office. Are those currently being reviewed in house? Are these being exported to other states? Can you just kinda talk to your knowledge, can you

[Rep. Ian Goodnow (Member)]: talk about what that process currently looks like?

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: To my knowledge, I understand that generally most of these cases that they consider not straightforward enough to be able to resolve and to review and come a finding to, I generally understand that it goes to, forget his last first name, but Daigle's his last name. I've seen him present. He's a he's a lawyer who takes on these cases and does an expert witness. He's been involved in more than I can count at this point.

[Rep. Zachary Harvey (Member)]: And I'd say that he's not

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: in the state of Vermont. He's not. No.

[Rep. Zachary Harvey (Member)]: He's not. Okay. No. Thank you.

[Rep. Ian Goodnow (Member)]: Did you have more or you That was all I

[Rep. Martin LaLonde (Chair)]: had. Yeah. That was a lot. That was Thank you very much. I really appreciate that. Very helpful. Very helpful. Really appreciate it.

[Rep. Ian Goodnow (Member)]: Jeff Bauer, do you

[Rep. Martin LaLonde (Chair)]: want to add anything? Please identify yourself for the records. Have a seat. Yes.

[Officer Jeff Bauer (Burlington Police Department)]: Name Jeff Bauer, born and raised in the state of Vermont. Police officer in the city of Burlington alongside Detective Coral.

[Rep. Zachary Harvey (Member)]: Thanks for being here. Absolutely.

[Officer Jeff Bauer (Burlington Police Department)]: It's my pleasure. Thanks for having me. I work in the Burlington Police Department. I apologize. I didn't come prepared with anything written down. I came here more as an observer. I have firsthand knowledge in this situation.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: Right into the fire.

[Rep. Martin LaLonde (Chair)]: I do.

[Officer Jeff Bauer (Burlington Police Department)]: I I don't mind. I don't mind if I can be helpful. A little bit history about myself. Owner raised in of Vermont. My father's a now retired Burlington police officer. I was an officer in Arizona as well. So I grew up kind of in the halls of the Burlington Police Department, if you will. I worked for a year as a police officer in Hampshire as well. Had a little bit of experience in law enforcement outside of Vermont. Previously that, I was in the military for eight years in the Marine Corps as an infantryman, served multiple combat departments. So adversity in rapidly developing situations aren't exactly new to me coming into law enforcement. I'm not gonna speak about the specifics of my case, but on August 9, I

[Rep. Ian Goodnow (Member)]: was involved in a situation in which

[Officer Jeff Bauer (Burlington Police Department)]: I discharged my firearm on a subject. That night, like Detective Coral explained, photos of me and my uniform were taken. My gear was all seized as evidence. I went home and, even my boots, I went home wearing Crocs and shorts. That night, I had my interview about a week later with state police. And now, almost seven months later, I've not heard a single word as to where I am in this situation. Luckily, have a pretty good support system in my life. My father kind of understands. My wife cares a lot. But I'm sure if you brought my wife down here, she would say that it affects us at home. I consider myself a pretty tough person, but there are definitely days where my mind goes, like, the worst possible scenario. Like, what if I do get charged, laps my life then, laps my wife, what happens to my house? And there are moments where my anxiety seeps up, and I have to step away from what I'm doing for like twenty minutes and just breathe and remind myself that we'll get through this one day at a time. I have personal investment interest in this bill for that reason. Having been a cop for nine years, I've investigated. I've been involved with homicides, Red Square. Merrill was mentioned earlier in a previous case. I was the second officer on scene for that. I've been involved in a lot of detective, it was all in some pretty complex investigations. And I've seen situations in which the state attorney's office can do a two way on a homicide the next day. I personally would like to see some form of timeline so I can have some sort of correspondence or answer in less than seven months. Because in the meantime, I'd like to think I make good decisions and I'll be cleared. But ultimately, I don't know until I get that green light from investigating body. The investigator from the state police kinda let me know where he's at. My interview was the last piece of evidence he needed from my case. And he said he was presenting that to the AGs, if not that day, the next. And that, again, that was back roughly a week after August 9, so mid August. I haven't had an update since then. I can tell you firsthand, it's put a lot of strain on myself and my wife. I'm sure there's days where I've been very grumpy with it unintentionally. Think I she does a good job of understanding that. Luckily, I have that support base. When I got into my situation, I conferred with an officer who used to work for us. It took, coincidentally, his badge number of days, three hundred fifty five days for him to hear bad correspondence. And in that time, he left. He left law enforcement entirely in a state of mind. I don't know if that was solely the reason why he left, But that's definitely a factor according to him, that played into him leaving It law is very much a strain, and I don't mean to speak for all of my situation, but I gotta imagine they probably feel a very similar sentiment that is an overwhelming burden. There's days where I'm fine completely for days in a row. And I put on the back burner and not really think about it. And then randomly, it'll just pop at the forefront of my mind. Then I'll sleep that night. Even after my incident, because it's an acting investigation, you can't speak to anyone about it here until your interview is on that week later. So for that days, whatever, I can't even talk to my friends about it. I'm at home just wheels spinning, about a situation by myself. I can't even conquer my dad about it, who was a law enforcement officer himself. Unfortunately, that part, there's nothing you can do. But the part that comes afterward when the investigator from State Police told me my interview was the last thing he needed, and that was back in mid mid August. When I investigate a case, it's expected that I have my evidence turned over. There's never a timeline, but in an expeditious manner. And maybe there is on the other end of my situation now. It just doesn't seem that way from where I'm sitting. I don't mean to unload my emotions on you guys here today. I just figured out off from my side human side of things to this bill. Yeah.

[Rep. Martin LaLonde (Chair)]: It's very helpful. Very helpful.

[Officer Jeff Bauer (Burlington Police Department)]: I'm also open to questions, if you don't mind, not about the particulars of my incident.

[Rep. Ian Goodnow (Member)]: Any questions?

[Rep. Zachary Harvey (Member)]: Zach? I'll start with one. Jeff, thanks for coming in and thank

[Rep. Martin LaLonde (Chair)]: you for your service,

[Rep. Zachary Harvey (Member)]: and I'm very sorry that this is you're going through this. And again, just tell me if this is not a direction that you can go in, and that's and that's fine. But I I think one of the things I mean, I assume that you're very supportive of the ninety day time frame. I am. It certainly is better than three hundred plus days than waiting in limbo. Absolutely. Yes. And, you know, I just think, you know, if I were to put myself in your shoes, right, and this happens mid August, you know, you think you're you at least have finality in the process. You're waiting for a response. Holidays go by. Birthdays go by. Maybe anniversaries.

[Officer Jeff Bauer (Burlington Police Department)]: Two weeks prior to my wedding.

[Rep. Zachary Harvey (Member)]: Yeah. A difficult difficult situation. Can't imagine. And so all that said, I'm wondering if you during this process, if you're allowed to have correspondence with the attorney general, if the attorney general's office has I mean, no communication's been had from from their office regarding your your incident. But I'm wondering if I mean, you said the investigator told you that, you this is kind of the last step in the process. So it seems to me that you've been waiting for, again, three hundred plus days for the next year to drop. Is that a fair disclosure?

[Officer Jeff Bauer (Burlington Police Department)]: Right? Either way. I've I've gotten no correspondence after a state police said they're giving it over to the attorney general's office. So I have a timeline when they receive the case according to a state police investigator. I don't know if this eye has been laid on. I understand it's been outsourced to Dago Law Group in Connecticut. That's also coming from a state police investigator. Other than that, I don't know where my case lies.

[Rep. Martin LaLonde (Chair)]: And I'm

[Rep. Zachary Harvey (Member)]: wondering too, do you feel like you have the resources you need from the beginning of this just to handle this in the department?

[Officer Jeff Bauer (Burlington Police Department)]: I particularly I didn't really look for those resources. I kind of avoided those, I'm gonna be honest, just because I have my own

[Rep. Zachary Harvey (Member)]: You have a great support system.

[Officer Jeff Bauer (Burlington Police Department)]: My own support system I prefer leaning on. I don't really confide in stranger as even if they are an expert in their field. I confide in my own family. Do those resources exist? I believe they do to some extent. I know of at least one former trooper who owns a wellness, first responder wellness society agent in the county. I I don't answer your question, Mark. I'm No. No. No. Not I think the resources are are there if

[Rep. Ian Goodnow (Member)]: I were to seek them out. Yeah.

[Rep. Zachary Harvey (Member)]: That's what I was wondering. It's just to make sure that, you know, if there are other officers who are familiar incident that don't have a great support system that you have, make to sure that they aren't feeling isolated and alone. I agree.

[Officer Jeff Bauer (Burlington Police Department)]: Even with those resources being there, I think the feeling of isolation comes from so few officers in Vermont are put in a situation where they discharge their firearm in the line of duty. Right. And oftentimes, those are gonna be the only people who understand exactly what you're going through. They might have a good concept of it working that line of field, but until they've been truly in that situation, they're not gonna truly understand what that's like. And even with those resources, I feel like it would be difficult for me to confide in them, knowing they don't quite understand that situation the same way. And luckily, luckily is a weird word to use. Someone else had come for me in that situation within the last couple of years. 2022, I think, was this incident, in which I went to him for guidance of what happens next. And he told me the same thing. For three fifty five days, he sat in silence until eventually he had left the same telephone call one day.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Well, thank you. And thank you, mate.

[Rep. Martin LaLonde (Chair)]: I appreciate you, Tony. Thank you very much. So we will go to Todd Neillas on what they have in the attorney general's office next, so you could join us. And so We can stop. No. So Judge Zoning is gonna weigh in on H849, but he says his testimony is very specific. He has a hard stop at 08:45, so I think if we get him in at 02:30. Great. Whatever. I was confused. 02:40. Over to you, Todd.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Good afternoon. For the record, Todd Daylouz, assistant attorney general at the Vermont Attorney General's Office. Before I start kind of bulk of my testimony, I think it is really important to appreciate the human costs that we've

[Detective Joseph Corrow (Burlington Police Department; President, Vermont Fraternal Order of Police State Lodge)]: heard about. And I think

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: it is I just want to acknowledge it's very powerful and important testimony. So I'm going to start there. It's also really important to remember that in these investigations and really the process that there is someone else on the other end of these incidents. And that person may be a perpetrator. That person may be a bystander. That person may be in crisis. But when that firearm is discharged, there is another victim. And to answer the question that was floating around the committee room, what happened in 2020? Is it COVID related? Well, I would point you to act 165 of 2020, which arose out of the awareness of the sanctity of human life and a rebalancing, I would suggest, of law enforcement interactions with civilians. It's the George Floyd moment and the realization around where things are. And that led this body to make pretty significant changes to the standards of use of force for law enforcement that are now held in '20 VSA 2368. And the reason that's important in a lot of these officer involved shooting cases is that, especially if there's a fatality resulting from the use of a firearm in the course of an officer's discharge of their duty, we look at the 13 VSA, Justifiable hindsight is where I'm gonna take us to 13 VSA twenty three zero five. That is the statute under which the AJ's office is operating. And so I want to really caution, as the committee looks at this, to remember that effectively this is a criminal investigation. And it is a criminal investigation looking at whether there's justified use of force. Because if there's not, then criminal charges result. The work that came that this body did on Act 165 was really to center victims. And if you look through 20 BSA twenty three sixty eight, you'll see throughout, and I would really focus on where use of force lies under twenty three sixty eight b, right, which is the authority of law enforcement to use physical force as a serious responsibility that should be exercised judiciously with respect for human rights and dignity and for the sanctity of every human life. So part of what happened in 2020 is a shift in how the analysis around appropriate use of force. When we undertake these OAS investigations, officer involved shooting investigations, the primary focus is on the victim and the victim's experience. The secondary focus is on the officer and the officer's experience. And then the tertiary focus, but very important as well, is ensuring we retain community trust in our law enforcement activities. When we look at placing timelines, and I will say in our fairly cursory review of other states that have timelines, no other state has. New Hampshire doesn't have a timeline. California doesn't have a timeline. Missouri doesn't have a timeline. I'm not aware of other criminal investigations that have timelines in statute. I recognize, as detective Perra said, there are practices within law enforcement to clear cases quickly. When we look at these officer involved shooting cases, we want to ensure that the use of force was appropriate, that it was commensurate with the circumstances that they offer in which the officer found themselves. Most of the time, it is. And that essentially we could prove, if charges were to be brought, we could prove beyond a reasonable doubt that use of force wasn't justified. And so we are essentially looking at the investigation with the eye towards a trial, not towards a charge, but towards a trial. So the process, as has been laid out, there is nothing in statute that creates this process. Essentially, what happens is when there's an officer involved shooting, BSP Major Crimes is made aware of that officer involved shooting. They contact the chief of our criminal division. She then is involved as that investigation rolls forward. We do not perform the investigation. And I think I've talked about that in this committee in the past. But we don't have other than ICAC, the Internet Crimes Against Children Unit, we don't have investigators. So we take that file when VSP has finished their investigation, And we begin to analyze it for a determination on whether the use of force was recent.

[Rep. Karen Dolan (Member)]: Yeah. Karen, go ahead. Just with that investigation and Vermont State Police aren't, there's no outcome that they're coming up with. It's just all the facts and information.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: That's my understanding.

[Rep. Karen Dolan (Member)]: And then handed off to you.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Yes. And sometimes we seek additional information, training records, other elements that may bear upon how much past disciplinary instances, things like that, that may bear upon an assessment of the reasonableness of the use of circumstance. And I guess I'm just

[Rep. Karen Dolan (Member)]: trying to think of the timeline with and me being this I apologize. This is very new to me. Is is there a timeline for Vermont State Police to get that? So that could take days, weeks, months on its own, and then you get it. And is that part of this whole timeline that we're talking about?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Well, I'm not certain what timeline Detective Coral was referring to in terms of the three hundred days. I know that we and I can go back and sort of ask for a more searching review of sort of what our timelines look like. But we would base our timeline on when we get that first case file to when we issue generally a press release or charges. That's the bookends of our process.

[Rep. Karen Dolan (Member)]: It could have taken weeks or months before that

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: It file it certainly takes weeks. Certainly takes weeks.

[Rep. Ian Goodnow (Member)]: Okay.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: And then we have to do an assessment of the reasonableness. You know, we've talked about experts. My understanding is the longer duration cases are ones where we're seeking engagement with the use of force expert. Those are cases where, based on our initial review of dashcam, bodycam footage, witness interviews, it's not clear cut that this was a reasonable use of force. And we certainly clear cases where it is a clear cut reasonable use of force. We just did it last month in a case in Springfield. But when it isn't clear cut, we do reach out because, again, we are looking at, is this a chargeable offense? We this case has been handed to us as a potential prosecutor. I should also say the state's attorney is doing a parallel review and analysis of the same as I think was mentioned before, it's not going to be the state's attorney in the county in which it occurred the conflict to another state's attorney. So there are parallel investigations. And then Of course. What?

[Rep. Karen Dolan (Member)]: Maybe I'm the only one. I'm feeling I'm just learning. So the state's attorney and your office gets the information and are doing these investigations. Is it that the state's attorney can come up to a decision before you? Or how do you coordinate that? It's like, oh, well, they came to a decision. We haven't yet. And then how does that move anything forward?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I am not. I should also say I'm not aware of I have no firsthand knowledge of these investigations, including any active investigations. I learn about them when they become public. In answer to that, I'm not sure exactly. There isn't coordination. Purpose is to have two investigations.

[Rep. Karen Dolan (Member)]: I'm looking for the same thing to see if it was appropriate use of force.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: And a state's attorney could come to a different charging conclusion than the AGR. Absolutely. Okay. That's interesting.

[Michelle Childs (Office of Legislative Counsel)]: Yeah. Is.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Generally speaking, there's a conversation that occurs before a charging decision happens because it's helpful to have if they are differing determinations, it's helpful to understand data.

[Rep. Karen Dolan (Member)]: Is this the timeline that we're talking about right now specifically to you? We're not addressing the state's attorney, seems like that is a question mark as well. Are they processing there? That's a piece that's not addressed in this.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I would look to the state's attorneys for that. My understanding is, generally speaking, we are on the same track, at least when we announce publicly. And it's usually I mean, you can look at any of the press releases on the AGO's website, and it'll say state's attorney so and so looked today, they generally can't

[Rep. Karen Dolan (Member)]: I just think it's an why wouldn't we be looking at both of them? So thank you for clarifying that.

[Rep. Martin LaLonde (Chair)]: I don't think

[Rep. Thomas “Tom” Burditt (Vice Chair)]: maybe someone even disagree we have a problem, And it's probably we didn't used to have. And for whatever reason, around 2020, and you brought up our our new use of force as a potentially a big reason for it. These guys came from Burlington where, you know, they have an issue with timelines. And the reason I brought this bill forward is because of the case in Rutland. So it's it's not isolated, I guess, is where I'm going with it. And the way I look at it,

[Rep. Ian Goodnow (Member)]: I I don't know what we can do to fix it.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: You know, maybe the ninety day thing here is the right way. Maybe it's the wrong way, but but I guess I guess what specifically in the use of force law that we passed caused it? And and from there, how do we fix it?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I I think that's a a very fair question and one that I am not because I I don't have experience beforehand. Don't know as I can speak to it. I can certainly try and get someone to come speak to the committee about before 2020 and the changes that the law might I mean, if you look at at act one sixty five, you'll see a lot of additional language added to the use of force statute and then overlaid upon that is the use of force policy, the statewide policy around it. I think those all added levels of assessment and analysis. I think we also move to a reasonable officer standard, and that shifts how we look at what is justified use of force. Is it?

[Rep. Martin LaLonde (Chair)]: We ended up with

[Rep. Ian Goodnow (Member)]: an unintended consequence that's putting putting people through hell. Mhmm.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: And the only thing I can compare it to being that I used to be on judicial retention and the hell that judges go through to judicial retention. When I was on judicial retention, I had judges calling me in tears. They were so stressed out about it because they're worried about their job. They're worried about their livelihoods. They're worried about their families. Sound familiar. We resolved those cases pretty quick for those judges. You know? If you wanna put, you know, a

[Rep. Ian Goodnow (Member)]: timeline on it compared to what we're we're doing for our our our police officers. So

[Rep. Thomas “Tom” Burditt (Vice Chair)]: I I thought you mentioned maybe somebody in your office that could, you know, feel have a little more knowledge of what specifically caused it, but

[Rep. Martin LaLonde (Chair)]: we need to fix it.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: You know? Plain and simple, we need to fix it. And and and one thing that I don't know if we you know, if this legislation goes forward, one another thing

[Rep. Ian Goodnow (Member)]: that I don't know if we could put in the statutes, and and I'm not pointing a finger at you. But Go ahead. But the AG's office needs to

[Rep. Martin LaLonde (Chair)]: be better communicating with

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: people. He

[Rep. Ian Goodnow (Member)]: knows nothing about what's going on.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: You know? Even if they if they came forward and said it's gonna be another three months,

[Rep. Ian Goodnow (Member)]: at least, you know, You

[Rep. Thomas “Tom” Burditt (Vice Chair)]: have a timeline. And and and I think it you know, again, it's

[Rep. Ian Goodnow (Member)]: it's not in the bill, but I I think that's probably one of the most important parts of this is communication. Mhmm.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: So you know what's going on. I can't imagine being in that situation.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Totally heard and happy to respond to any further requests from the committee. The response I would also have, though, Robert, is in the infrequent instances where charges are brought, it's really important to remember that this is a prosecutor prosecuting a defendant. And I'm not sure there's another circumstance in which the law would require the prosecutor to inform the defendant on the results of the investigation or the likelihood of charges or the timeline for charges being brought. I recognize most of these cases do not result in charges. Most of these cases are instances of officers well trained, well operating, and responding to awful circumstances with the best experience and ability they've got. That's a gift to Vermont. There are those other cases, and that's the challenge is is I'm not sure how prosecutors can distinguish there early on and say, okay. I'm gonna tell rep Burditt it's gonna be okay, but we gotta go through the process. I'm gonna tell rep Rachelson, we'll see.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: No. Point well taken. So so that just got I go back to 65. +1 65.

[Rep. Martin LaLonde (Chair)]: It needs to be

[Rep. Ian Goodnow (Member)]: Okay. I probably disagree with that, but but I think

[Rep. Martin LaLonde (Chair)]: we need gentleman over here. Well, we need to fix this process. This is what we need to fix. I I don't think we need to fix the the use of force policy or the the law. But and and I don't understand how it's changed so dramatically from it was reasonable person it was a reasonable police officer standard before. I think that I understand there are some changes. You don't look just at the instance of the use of force. You have to look at the cut. Yeah, that's going take more. But what about some other possibilities? Why not consider having a full time investigator at the attorney general's office instead of having to wait for experts to have the time.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I mean, I think there are resource constraints are what the timeline really comes to. Right. So New Hampshire, for example, has a dedicated investigator in this. I think most other states have some kind of measure. I thought I can't remember whether it was rep Harvey or someone else said, you know, what about an in house in state investigate expert? Oh, it was detective who said that. I think there are lots of additional solutions here. I mean, again, another piece, and it may be playing into the experience you've heard about, is we take them in the order they come in. And if you have a simple one that should be cleared easily, but it comes on the heel it comes on the heels of a much more complex and involved case, we're working through the cases as they come to us.

[Officer Jeff Bauer (Burlington Police Department)]: And

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: maybe that's an internal that's feedback I can certainly give to the criminal division. It's the same folks who are prosecuting the ICAC cases or prosecuting and or assisting prosecution of other cases. So it's still just the five folks.

[Rep. Martin LaLonde (Chair)]: Right. So I think it'd be very helpful if you Yeah, it's very difficult for us to put a ninety day period on it, but it's here and it's for us to consider now. But we need to know other ways that this can be fixed? Because I agree it definitely needs to be fixed. Right. And this is one possibility for it. But I'm sorry, Zachary Harvey.

[Rep. Zachary Harvey (Member)]: No. You are the

[Rep. Martin LaLonde (Chair)]: chair. I'm talking a lot.

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: No. No, no.

[Rep. Zachary Harvey (Member)]: I'm fully deferential to the chair's line of questioning. And I think, well, one, I don't envy the position you're in, Todd, because I think this is a very difficult circumstance to defend. And I think that's one of the things that we keep coming back to is the three hundred days, rightly or wrongly, is not really acceptable because you have people whose lives are, you know, totally uprooted and living in turmoil, and it it's really, really quite difficult. I think to piggyback on the vice chair's sentiment that he outlined, communication is a really key aspect of this. Do think that light oftentimes is the best disinfectant to some of these things that are ongoing. That leads me to one of the themes that we talk about in this room pretty much ad nauseam is access to justice and expeditious trials and making sure that people aren't living in limbo and their lives are being tormented by the system that they're looking to protect and serve. I think one of the things that not so much I take issue with, but I think a discrepancy in the comment that you made is, yes, there probably are no instances where we're requiring the AG's office to disclose timelines or give progress reports and status, but it also very few of those cases are with law enforcement officers that are committed to making sure that we live in safe communities and are serving the best interests of Vermonters across the state. So I do think that 's a little bit apples and oranges to me because I I don't think that law enforcement officers would fall under the same umbrella there. One of the questions I have is about the Nagle investigator. Have you worked with this individual before or this law firm?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: So I don't do You don't do anything?

[Rep. Ian Goodnow (Member)]: You're not aware of them?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I am aware of the existence. I'm aware that we have relied on different experts over time. But what you're looking for is someone with law enforcement experience specifically around the training and implementation of use of force who has Vermont knowledge. Right. It's not a big field. And I think we've shifted over time, And I can't speak to exactly why those shifts may.

[Rep. Zachary Harvey (Member)]: And you have confidence that this person's doing the best job that they can?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I I have confidence in the people who are choosing to rely on this person. Is

[Rep. Zachary Harvey (Member)]: there someone in state that you feel like could effectively serve as a expert witness?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I am happy to go back to the criminal division and ask how broadly we cast the net. I have

[Rep. Martin LaLonde (Chair)]: to believe that we would

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: be using Vermont resources if Vermont resources were readily available, but I'm more than happy to ask that question.

[Rep. Zachary Harvey (Member)]: Yeah. I think I think that would be that would be great. And I think I mean, you've been in this committee plenty of times, and you probably know that my aversion to to spending taxpayer resources on pretty much anything. But that being said, if there was a commitment that could be made from the attorney general's office that there would be expeditious reviews with dedicated resources in her office, I mean, that seems like a pretty good use of taxpayer resources to make sure that our law enforcement officers have the answers to the you know, to to these cases. The last thing that I'm curious about is do you know how many cases similar to the the prior witnesses are being processed right now by the AGOs office?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Yeah. As I said, I don't I'm not aware of when they come in. I'm only aware of when we're gonna largely clear or charge them. So, again, I can get a I can see if I can get a sense of that. It's because it's a criminal investigation, there's only so much information I can And have access so in

[Rep. Zachary Harvey (Member)]: the cases that haven't either cleared or charged, do you have an estimation of how long those cases have taken to clear?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I got a very rough sense of the last handful. I'm aware of one that was twelve months. The one that was seven and one that was eight. Those are all expert cases.

[Officer Jeff Bauer (Burlington Police Department)]: And

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: then two, three and four months were the other ones that I was aware of. So you can see the discrepancy when an expert is involved.

[Rep. Zachary Harvey (Member)]: Yeah. But I think waiting I mean, we're approaching another one that's coming up on a year. And I think to the vice chair's point is that something is obviously broken. But I'm all set. Chair, thank you.

[Rep. Barbara Rachelson (Member)]: Barbara? So I'm wondering if certainly have I missed it. And I think you just alluded to possibly in the past there's been in house. So I'm wondering if, you know, what past attorney general's processes were. I think people are, like, referring to the time.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Yeah. I mean so I think between 2020 and now, there have been three separate attorneys general, but I'm not aware of any change in the internal process nor do I think it particularly It's a fair question that I can ask about, but I'm not aware of any change in internal process for OIS, independent of ACT 165, which I just think changed the standard under which we assess these cases.

[Rep. Barbara Rachelson (Member)]: I don't know how this works either, but is there either a bid process that periodically you go out to bid and solicit attorneys experts? Right.

[Rep. Ian Goodnow (Member)]: I'm

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: now casting my mind in a slightly different direction to when I was a civil attorney at the office. And we would largely seek out experts based on their areas of expertise, their experience. Candidly, you also look at who they generally testify for, whether it's defense or prosecution. Ideally, it's somebody who does both because it suggests even hands. But I can ask these questions about expertise. I don't believe it's an open bid process, though.

[Rep. Barbara Rachelson (Member)]: I don't even mean you have to go with the highest, the lowest bid, but just more of the aim to And I don't know if you can have many people on retainer or contract where some of the expectations are laid out to them about timeframe or whatever, because I get the balance and for sure, I can't imagine what it's like to not know. And I don't know if there are, you know, people have talked about communication. There's like, it's limited what you can communicate.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Or even what I know.

[Rep. Barbara Rachelson (Member)]: Right. Which that's good. I mean, I'm glad that you don't know. But but I'm just wondering if, like others, you know, when you bring us off to the AG conference, hey, how do you keep people, you know?

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: I think those are fair questions.

[Rep. Martin LaLonde (Chair)]: Okay, so we need to actually Can you hold your question? Yes. This conversation needs to continue, and we need to get some ideas from the AG's office on how to move this. And if that means we need to start begging for some more appropriations on this, we will do that in this committee. But I think that we're still looking at this, but I think there perhaps are better ideas from getting some of the testimony to us. So we'll return to this. We have a week after this week and we'd like to be But as soon as you can get back to us.

[Todd Daloz (Assistant Attorney General, Vermont AGO)]: Yeah, I'm happy to circle back.

[Rep. Martin LaLonde (Chair)]: Yeah, thank you, Absolutely. Tom and Tom would be the folks that you want to join with. So thank you for the testimony. Thank you for your testimony. It's important issues that we don't have a clear answer on

[Officer Jeff Bauer (Burlington Police Department)]: yet, but we'll figure out.

[Rep. Martin LaLonde (Chair)]: So we're gonna move to 08:49, and we have two witnesses on that. And we'll start with Judge Zone, if you could join us at the chair, and then we'll go to a preopen. I think Tadsonia. I understand will be pretty quick. And I don't think they're leaving because you just sat down.

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: I had that up. That's okay.

[Rep. Ian Goodnow (Member)]: That was an all rise kind of thing.

[Rep. Martin LaLonde (Chair)]: They

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: leave. Thomas Burditt, Chief Superior Judge. Thank you for being here. I suspect they're not

[Rep. Thomas “Tom” Burditt (Vice Chair)]: gonna feel as though they

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: missed much because the bill is essentially what it does is it becomes a state version of 42 USC section nineteen eighty three. And there is not much I can say about it because it's the type of situation where obviously it's going to find its way into the courts. I'm sure you've heard or will hear testimony about federal supremacy, removal of cases, federal court claims, and a host of other things that the courts whether it's the state or federal courts, will have to rule upon it. So I really don't have much I can offer.

[Rep. Martin LaLonde (Chair)]: I guess you could have said you are significantly I

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: was next door anyway.

[Rep. Martin LaLonde (Chair)]: We have any questions. So

[Rep. Ian Goodnow (Member)]: any questions? Do you think that this could I'll give you at least one option. So this will create a state right of action where currently there's only a federal one. Do you think that this could increase the number of civil cases that we're seeing in Vermont? And do you feel like the civil division has capacity to handle

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: Could it increase the number of cases? Certainly. Anytime you create a new cause of action, there may be additional cases. Can the civil division handle them? I would think yes. Great. I did not read this bill and think that it would cause issues in the courts with us needing additional reasons. I think we can handle it.

[Rep. Martin LaLonde (Chair)]: Great. Thank you for your help. I appreciate My pleasure. Coming in and we'll

[Rep. Zachary Harvey (Member)]: bring you

[Rep. Martin LaLonde (Chair)]: in on something more stuff soon.

[Rep. Thomas “Tom” Burditt (Vice Chair)]: I think

[Rep. Martin LaLonde (Chair)]: So I think we have you in next tomorrow afternoon.

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: I'm in tomorrow and Friday, I believe.

[Rep. Martin LaLonde (Chair)]: Three eighty five is, yes.

[Hon. Thomas Zonay (Chief Superior Judge, Vermont Judiciary)]: Will be remote both days, though.

[Rep. Ian Goodnow (Member)]: Okay, alright,

[Rep. Martin LaLonde (Chair)]: thank you. So I have actually a draft 2.1, which I've just printed out the book printer of August this? This is the calendar version section 1983. And Julio, if you could join us. If you could just go grab Certainly.

[Rep. Zachary Harvey (Member)]: And could you have it sent in

[Rep. Ian Goodnow (Member)]: two so I could post

[Rep. Martin LaLonde (Chair)]: it? I absolutely was about to do that at

[Officer Jeff Bauer (Burlington Police Department)]: the end the call.

[Rep. Martin LaLonde (Chair)]: And I know I I did send the the draft out to a little bit earlier, but just to add some of the language you were talking about, Ralph and Tucker Communities. As far as yeah. Communities. What's the billing number? That's 849. That's right. And we're gonna have an updated draft that he just read. But

[Rep. Zachary Harvey (Member)]: but you can go

[Rep. Martin LaLonde (Chair)]: ahead and identify yourself for the record and and proceed as we are getting the draft because I most of the language we're gonna start with, at least, I assume, is already in our current draft. Sure.

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: My name's Julio Thompson. I'm an assistant attorney general. I'm also co director of the civil rights unit. Part of the civil rights unit's duties are to enforce Vermont's anti discrimination laws. We are also involved periodically in national litigation relating to various civil rights issues, and that's part of my experience relates to kind of the issues of federal and state sovereignty and immunities and likewise. I do not, as a practitioner, defend the state in lawsuits. I just the state, you know, as often I'm not sure how often officials are defendants in section nineteen eighty three actions. I don't litigate those. And I'm also not a practitioner currently under the federal claims act, but I'm familiar with the tort claims act process. Just want to outline sort of the limits of my knowledge and hope that'll be shared by any questions that you direct me. That's my introduction. Would you like me to mister chair, to start first with your language or with the bill of challenge?

[Rep. Martin LaLonde (Chair)]: Whichever way you wanna start. I

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: think I would prefer to talk about the bill in general. I follow you know, I listened to the testimony that you've had so far as well as the very helpful walk through from the council present in the room this afternoon. I I think there are some issues that haven't been addressed or spelled out that I thought would be useful background for the committee as part of its assessment of the bill, both in terms of how it will work mechanically, but also to assess what I you know, its prospect for surviving a challenge from either the The United States itself on, like, relating to federal employees or as a challenge in an individual lawsuit should a federal official be sued for an elect violation of the US constitution. One or perhaps two of your witnesses previously testified that h eight forty nine doesn't really create any new rights because it's simply enforcing the constitution. I think I would respectfully disagree with that. Both that it is a new right, which is a right to sue any of the 3,000,000 or more federal employees that did not exist before, and to allow a type of constitutional litigation to occur that in in to my knowledge, hasn't occurred in US history. That's not to say there's not merit to the bill, but I think it is selling the bill well short to say that it's a mere, you know, adjustment adjustment mechanism to enforce The US constitution. It's modeled the bill is modeled on section section nineteen eighty three, which congress originally acted as section one of the 1871 Ku Klux Klan Act, which allowed, of course, actions against state and municipal officers. It's important to for context of this bill to understand that since at least 1871, the US Congress has understood that government officials might violate constitutional rights. From 1871 until today, congress has never chosen to offer a remedy if those government officials are employed by the federal government. Congress has created other remedies for negligence. So for example, it's Christmas time and your package arrives damaged or destroyed. You may have a claim under the Federal Tort Claims Act for the negligence of the postal carrier, and there's a specific process for that. You can't go straight to court. You have to file a form that's called I think it's the form 95, if I'm not mistaken. It's a two page form. Oh, yeah. Here's a copy of it. Form 95, you have to file that with the post office about your you have to allege the facts. The form says that if you're signing this claim before you send it, you're you're advised that that you could be civilly liable for making false statements. The form also says that you could be criminally punished for making false statements, and then you submit it to the post office for their review. They have six months to decide whether to act on it, to settle the case or deny the case. And then after that, you have six months to go to court. And if you wait six months and one day, you're out of luck. So congress for a common negligence claim that something could happen to any of us, damaged package, damaged mailbox, would be you know, that that's been carefully prescribed by congress. But congress hasn't set any standards for what you would do if if the allegation for the same package was not that the postal carrier was negligent, but that he was violating my First Amendment rights because I made a complaint to a supervisor about how late his service has been lately. And then my allegation is that he intentionally destroyed the the package because I had exercised my first amendment right to complain to the government to voice my grievances to the government. Under existing federal law, that example that I gave at the letter carrier and the retaliation for first amendment, there is no such right. Supreme Court has never recognized in the so called Bivens cases, has never recognized any First Amendment constitutional claim that you could bring. And so this law would, on its face, permit those causes of action for anyone who claimed that their speech against the government resulted in something that they think was something bad happened to them, and they think it was punishment for a protected speech or political activity. So that's brand new. There's no telling how many of those cases would be filed, but I would flag that as a significant change to the legislative landscape. And one that the court has, at least in its most recent decisions, by recent, I would say, going back fifteen years, has has cautioned that those decisions are not the province of legislatures, but of congress. We heard testimony the other day that the supreme court has diminished that so called Bivens common law right where you can just sue in court for violation of the constitution, that they said that's a legislative question. And that and this is legislation, and so that it it kind of the suggestion is that, therefore, it would have smooth sailing because Supreme Court has said that. But when the court talks about suits against federal officers, it very it most frequently talks about congress being best positioned to evaluate what remedies should be permitted when, what the statute of limitations should be, because congress is in the best position to evaluate the impacts on the federal workforce because litigation can affect how zealously employees perform their duties. That's something the supreme court said thirty years ago in a case called Harlow versus Fitzgerald. The language that we have from the US Supreme Court seems to suggest while they don't say that states can't do it, their discussion about the you know, legislating these issues has consistently and and, again, most recently been voiced as the role of congress. There's no supreme court decision that I'm aware of where the court has said, we won't create a common law clause of action because state legislatures can do that. I've never seen that. And if there are such cases, I'd be interested in reading them. I know there have been lines here and there the last fifty years of the court's decisions where there are references to state court remedies. But in the case of the and, you know, the the jurisprudence, the the common law, the supreme court over the last fifty years bear bears no resemblance back then to what it is today. So Bivens was a case just briefly, just to fill in kind of the backbone. That was a case that came to the court in 1971. Mister Bivens was a you know, he was a resident of Brooklyn. We had Webster Bivens who was a resident of Brooklyn, New York, and he claimed that DEA agents broke into his apartment and manacled him in front of his family and brought him to court without any warrant, without any probable cause. And he did not have a claim. He he he pursued a constitutional claim, the Supreme Court had to decide, knowing that there was no federal statute authorizing a suit for constitutional violations, what the Supreme Court was going to do that. So various different Supreme Court justice Brennan wrote for the court that under the constitution, courts generally have the right to decide cases of controversies arising under the laws in the constitution. And the court's thinking back then in 1971 was, well, that gives us inherent authority to fashion common law remedies as judges have in the common law going back to the days of England. And so under these circumstances, we think there there should be a remedy. Even if congress hasn't acted, we as co equals in government deciding cases and arising under the constitution, we think we can recognize that claim. That was 1971. There's only been two other cases where the Supreme Court has extended other constitutional rights in the fifty one years or fifty five years since Bivens was decided. The next case was the 1979 case involving a congressional aide who was working for a member of congress and received a note from the congressman saying, quote, although she was able, energetic, and a very hard worker, it was essential that the understudy to and my administrative assistant be a man. And so she brought an equal protection claim by a lady claiming a violation of equal protection, and Supreme Court using the same rationale. It's a violation of the constitution. Congress doesn't authorize a cause of action, but surely she should have a remedy. In the last case, just nineteen eighty, so that was forty six years ago, was a case called Carlson versus Green, brought by the family of an inmate who, in a federal prison in Indiana, who had died during an asthma attack where he did not receive medical treatment. And so the allegation there was that it was cruel and unusual and deliberate indifference to his welfare by federal officials in violation of the eighth amendment, and the supreme court recognized the Bivens action for that violation. And in the in the last forty six years, the supreme court hasn't recognized any other cases. I might count at least as of the most recent decision by the Supreme Court in 2022 is that on the Supreme Court has issued 11 different cases where it declined to extend those remedies. And over time, the rationale for the court has shifted from seeing whether there was a remedy that the court had the power to provide to, is this the role of a court or is this the role of Congress? And that's where the court is today. The most recent case involved a fourth amendment excessive force and a first amendment retaliation case happening in Washington state, a case called Egbert versus Boole, the supreme the majority of the supreme court said, you know, it's not clear if we decided Bivens today that we would provide the right. But it's a precedent, and it doesn't qualify. Extending it to these facts is not appropriate that congress is uniquely positioned to decide these issues, particularly whereas in that case, the defendant in the case was a customs and border patrol officer who was accused of using excessive force against a motel owner who objected to his entering his property. And then later, after he learned that the motel owner had made a complaint against them, He allegedly noted the the IRS or alerted the IRS and encouraged the IRS to audit the motel owner, which he claimed was retaliation for the First Amendment activity of complaining. And while the court divided on why there would not be a First Amendment remedy, all nine justices said that there would not be a a remedy under those circumstances because the questions about where to draw the line on First Amendment claims is so complicated, and it could so impact the federal civil service because it would affect all employees, not just law enforcement employees, that that was an issue, at least sort of justice Sotomayor articulated in her concurrence, that that was an issue that was left to congress. There was no suggestion in that court that that was also that could also be an issue that was left to state legislators. And so the question you know? So the environment that we're in is is an environment where the supreme court is looking at when you're dealing with federal officers that congress is uniquely situated, and we haven't heard anything from them to suggest that state legislators would. Immunities, like intergovernmental immunities are judge created doctrines. So it is relevant, think, and a bit of the legal realism school to try to assess where we think the court would vote, because they don't ask to follow precedent. They routinely overrule cases. There's a fair argument that they have implicitly overruled the Bivens rationale. And so I think that picture presents, I think, stiffer winds than than had been, I think, protruded from some of the witnesses. I think it is it it would be challenged as Illinois is facing a challenge now. And and a related issue, which I think is relevant to your amendment here, is that since this applies to both state and local actors as well as federal actors, one way one way for the committee to assess, you know, their satisfaction because I as I understand that there isn't much of the motivation for the bill isn't behind state and local actors. I could be wrong about that, but I haven't heard that. It's been more about expanding it towards federal actors. And I've heard plenty of good reasons why people are interested in that for sure. But if the legislature you know, wants to include state and local actors and doesn't wanna change the law, then, you know, it's it's a good idea to invest the time to make sure that happens. Because I I can't, you know, handicap percentages here, but the but the chances that a year or two from now, if the Vermont law passes, that the only thing left standing is the state and local provision and not the federal provision, then you'd wanna make sure the bill the law is being applied in a way that that you want. And so I think the test the testimony yesterday about adding language, I think, was very helpful. Supreme Court always tells us when we appear before, you know, their first job is to try to bring into effect the intent of the legislature. And so if your concern is that you want your intent to be effectuated, the easiest way to do that is to state what it is, either in finding its purpose or in provision. So I think that was a positive development to put in black and white what it is you think you want to have happen. We've talked in a while,

[Rep. Thomas “Tom” Burditt (Vice Chair)]: so we're gonna

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: take a breath and see if there are any questions about what I've talked about so far. I'm happy to talk about any of those kind of bulleted topics in more depth if you want or going in another direction if you'd like.

[Rep. Martin LaLonde (Chair)]: I thought so the new language subsection c and d, it's you find that that includes

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: yeah. As I understand C, and D really, they only really address cases involving state or federal actors. Because C refers to people who act only under state or municipal laws. C doesn't speak at all to the issue of what the court is supposed to do with respect to a federal defendant, which under the statute could include anyone, at least on its face, congress, the president, the supreme court, any any believe any person who's acting under color of a of a statute. And so I'm sure which which defendants would be limited or whether they would be qualified immunity addressed to them. Isn't that covered indeed, both as far as? Well, I mean, I I don't I'm not sure. I mean, it could be. The construction of fort 42 USC nineteen eighty three for a hundred and fifty years or so has only been talking about the scope of immunity as it affects employees of state and local governments. There are federal functions which are not part of state functions that there is no common law on. For example, in the most recent Supreme Court case I mentioned, the and the customs and border patrol agent, the part of the Supreme Court's discussion there was noting noting a special reluctance to create constitutional remedies against customs and border patrol because some of their functions involve national security. There isn't much national security related jurisprudence in section nineteen eighty three. There are other section nineteen eighty three or there are other federal court cases involving members of the US military, for example, the armed forces, again, which is not something that would show up much in section nineteen eighty three. Jurisprudence, that would also include US domestic and foreign intelligence agencies. It would also include licensing authorities. The defense department, which, you know, I think, employs two thirds of the federal employee work force right now. So there are a lot of uniquely federal functions and immigration enforcement. It's exclusively a federal jurisdiction, so we don't have state case law about the scope of immunity for enforcing immigration laws. It's not a state law function. So I'm not sure that there's much limitation there So so should we for federal officers.

[Rep. Martin LaLonde (Chair)]: So should instead, on line three and four, looking at page two, should just be under color of law, not under color of any state or municipal law, to make it clear that, be it federal or state or municipal, that the defenses

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: say that they have the same available defenses? Well, part of the challenge with the language is that Section 19 it's a defense that's available under Section nineteen eighty And those So, I mean, I think you're saying a defense under nineteen eighty three is available to a federal official.

[Rep. Martin LaLonde (Chair)]: Right. Correct. I guess that's what it that is what it says right now. I don't think you have to change state or municipal law. That's just what the section nineteen eighty three is. But we're saying an action brought under the subsection A of the section, which could be a federal or state or municipal, and they can apply the same defenses.

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: I think, courts will still have to decide whether federal officers who have unique authority are subject to additional defenses based on their status as federal officers. I don't know how articulate that, not knowing what how what the courts would would say on that subject. It certainly you know, it it would offer guidance on something like a, let's say a member of the Capitol Police searching someone's car without a warrant. And the defense is sort of, let's say for qualified immunity for a fourth amendment violation is that the officer is liable only if they violated a clearly established right. And that's essentially the section nineteen eighty three tests for state and federal law. So that may apply, but whether there would be additional immunities that are afforded to say members of the state department or again, operating including, you know, immigration authorities where their functions, the court may say they need to have additional protections. I don't know what they would do there. But I think I think what you offer there, I think, is likely to be an improvement. I did the other comment I had about c was that it didn't entirely track, and maybe that's intentional, it didn't entirely track Tucker's Tucker Jones' testimony yesterday because he mentioned not only to in

[Rep. Zachary Harvey (Member)]: order

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: to harmonize at least the state and local law. So essentially, the only thing that changes that you can go to superior court as opposed to federal court is that there are under section nineteen eighty three common law limitations on who can bring the scope of section nineteen eighty three cases. So for example, and by scope, we might mean something like if we see a law enforcement officer using excessive force, and I witness it, but I wasn't touched, am I able to bring a tort for the emotional shock of seeing that? Those are issues of scope that have been addressed under section in nineteen eighty three that are separate from qualified immunity. It's more about who can sue and what they can claim rather than what the defense is. So so c does, I think, half of what it appears to do half of what was recommended yesterday.

[Rep. Martin LaLonde (Chair)]: And I think D captures the rest. I mean, the whole scope issue, I think, is captured in D. Is it not?

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: I don't know what I don't know. And here's why. It's as guided by, but not bound by. We do have cases so one of our duties in our day job at CRU when the legislature is not in session is to enforce the Fair Employment Practices Act. The Vermont Supreme Court has said repeatedly because the language is patterned after title seven, we are guided by the federal court's construction of title seven. But in a handful of cases, they've also said, but we're not bound by it because it's a remedial statute and was passed at a particular time and context. And so we think we can go beyond what the courts have said. That's one thing. And two, there isn't uniform I mean, and I'm not trying to create at all obstacles to achieving what you want, but it is it says guided and not bound. And

[Rep. Martin LaLonde (Chair)]: if

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: and if you want it to be guided and not bound, then that's fine. But I think that issue about what guided means will be litigated in court. People will say, you could have said bound, but you said guided it, so therefore, the court's free to do what it wants. And and you may wish to do that as a matter of policy that happens all the time, But I don't know that it ensures a 100% that there would be absolute harmony between the two.

[Rep. Martin LaLonde (Chair)]: So what do you think is the biggest litigation risk as far as this not being upheld? Because we had testimony on preemption.

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: I have. Some preemption. I mean, they didn't mention all of the preemption arguments, but they mentioned some of it. There are other ones as well that the court mentioned.

[Rep. Martin LaLonde (Chair)]: So what do you think are the most likely arguments that would be toughest to defend on that? I mean, I don't know if I'm saying that right, but

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: Well, and as the attorney general's office, when we defend their laws, we follow kind of Well, guess I little sprezzatura, which is that everything looks effortless, right? So I think that well, I could tell you a little bit of what's likely to come because, of course, we have a complaint that the Department of Justice has filed against Illinois. I brought it with me here. I mean, one of the arguments that they will make is that by creating a cause of action that exposes individual federal law officers to personal liability for any civil constitutional violation, you are essentially affecting their conduct. You are therefore regulating the federal government. You're just using private actors as a proxy for the state essentially is the argument that they're making. They alleged that Illinois wants federal authorities to change their behavior, and rather than saying that in black and white where they they fear they might be called out on it, they are creating a private right of action for people to go do that instead on the state's behalf. That's part of their argument. And and in the complaint, they cite some of the supreme court cases that talk about the fear of liability can chill all but the most ardent government employees' zeal. And so they are saying it is a form. It's just a mass form of And I think they compare it to There was a Texas law that allowed private people to sue doctors for performing abortions or other health care services as a way to avoid Texas just having its own flat out ban. So they're making that argument now. They're also making an argument about a type of preemption that hasn't been named, but it's known in constitutional law or circles as obstacle preemption, which says even if you don't intend to interfere with government actions, if the effect so either the purpose for the effect of the state law is to place a drag on federal options and impose a burden on federal options, then then that you know, in an area where historically the federal authorities have, legislated where congress has legislated, that that's a type of preemption as well. It's not that it's a little more difficult. It's not like you have to cooperate with the federal authorities. But if you are placing various obstacles in their way, making their job harder, then that's an argument that I think the court will be drafting. One thing I think in terms of what the committee hasn't been doing that it might consider doing, I don't know, no telling what a court will make of it. But in terms of presenting a picture of kind of rounded considerations, it may be useful to collect from experts who are not us information about how litigation affects the federal workforce now. I don't know how many federal tort claims acts are brought and how that affects federal operations. And I mean, I'm just looking to what the Supreme Court said in its that its most recent decision or what justice Sotomayor said, which was that, you know, we're we're not gonna draw First Amendment lines here because we don't know how it's gonna affect civil service. We don't know how it's gonna affect tenured government employees. That's something for congress to do. I think a challenging picture for the state of Vermont is to come into court if they're challenged by the federal government or if they're someone's trying to enforce or defend against one of these lawsuits, is that a record that says the Vermont legislature never considered the impact on federal employment? And so if the answer from, I think, some of the academics is that the states are free to legislate because it's not a court function, then I think having a rounded, again, assessment about mechanisms, if there are other mechanisms to address the issue about who could sue for how long, what and also another you know, there are 15 or more states that are doing this. What the statutes of limitation are? Could our neighbors pass a law that says we have the Vermont law, except there's a twenty five year statute of limitations. But Vermont's laws, you know, it's three years for personal injury. So there could be different standards. So I think having, you know, having some of that either in written record or collection of articles or some some research like that, I think would be useful. And I'm not familiar that familiar with the other state laws to see whether they've done anything also to address so that the legislature is truly considering the balance of interests that the US Supreme Court has said they expect harmless to do, rather than a state just saying, we're only considered about Vermont's interests, which but even though it has an unknown impact on the federal government. So that may be useful. I don't know whether it would be successful ultimately in litigation. But that's not something we have right now, and it's something I can't speak to.

[Rep. Martin LaLonde (Chair)]: So one other question. Did you have a question?

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: Go ahead, Andy. Oh, my only question is just to clarify. Supreme Court has said, yeah, this maybe should be in Congress's jurisdiction because they have the understanding of how it's going to impact federal employees and all that. Has there ever been any ruling that has said it shouldn't be something that the state legislator I'm not aware of the case being teed up in quite that manner. It's simply been that someone comes to the Supreme Court without a statute to cite. Yeah. And ask the Supreme Court to create a federal cause of action. And and when the court says, no, we're not gonna do that, again, the supreme court on a on a weekly docket is dealing with cases involving the states, so they're no doubt aware of state legislatures. But, you know, I'm looking at one case right now, which involved another. They decided not to extend a constitutional claim against a border officer who shot someone on The US Mexico border. And the court said, quoting from a case called Hernandez versus Mesa, 2020 decision. We have recognized that congress is best positioned to evaluate whether and the extent to which monetary and other liabilities should be imposed upon individual officers and employees of the federal government based on constitutional torts. And it's citing another Springfield case when it's doing that. So it is, you know, the picture, again, kind of the legal realism picture, and legal realism is a school of jurisprudence. That's not my term. Dates back to at least the nineteen thirties, is that the picture is of the federal courts making it more and more difficult to sue federal officials for constitutional torts. And then the question becomes, could states now, for the first time, write a law and open up all that litigation that the court, through judge made doctrine, has says you can't have that litigation unless Congress passes it? I view that as a difficult environment for for any law because the Supreme Court doesn't have to follow even its own precedents. And again, immunity doctrine is judge made. And so how that would land on a court and say, oh, I don't know. The court would say, oh, you know what, states, you got us. We hadn't thought of state legislatures since therefore there's no restraints on except for qualified immunity. I'm not

[Rep. Martin LaLonde (Chair)]: sure they would do that. How about through an originalism lens? About the late seventeen hundred's and eighteen hundred's, states ensue federal law officials? You know,

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: well, there are a few cases where the Supreme Court refers to torts like trespass and assaults, because you can have both, right? If I going back to my letter carrier, if I complain to him about late packages, his response couldn't have been a damaged my package, but to damage my front teeth. And he might be liable for the intentional tort of battery, which is a common law court that I could assume are under federal law, assuming that's because the federal torts claims act doesn't cover intentional torts. Punching some of the mouth is typically intentional. I could, you know, under existing law, I couldn't do it under a first amendment theory. It's possible the court would do that, but I guess the question I would I would note that, you know, whether the court would whether majority of the court would follow a case is cases from the nineteen thirties saying states could do that. There could be such causes of action. When the court looking back only fifty years is saying we would have we wouldn't have even followed what we said fifty years ago.

[Rep. Martin LaLonde (Chair)]: Well, that's why I'm trying to go back two hundred or two twenty five years.

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: I guess what I'm saying is that I think part of the jurisprudence that's in the court is not merely looking at the text. There's no text in the constitution about a cause of action. Right. And looking at at the history of The United States, a central question in all of these cases are, if these lawsuits could happen, what would happen? And do we know in Bivens, they thought it would be pretty clear what would happen because breaking into somebody's house and and and handcuffing without probable cause, that case law had been pretty well settled for at least, you know, a decade, a decade or two. But first amendment torts and equal protection violations are both based on the intent of the federal actor. So even if you know what happened, you still have to know why it happened. And this is the point justice Sotomayor made in that in that concurrence I mentioned. That could involve more entanglement in court to get discovery on why someone did something even though we all know what they did. And so when we're looking at the cases, the court is very concerned about they don't use the word although you know, academics looking at these cases say the court is concerned about a flood of litigation that affects the federal workforce. And so I think that is something that's why I said I think that having some assessment or information about litigation impacts on federal workforce might be might be relevant. The Federal Tork Claims Act has been around for generations, and so there's plenty of research about federal tort claims and the like. So so, I mean, I think it's inescapable before this cited. Okay. If if this case went to the Supreme Court, okay, Vermont, if we let this happen, what's gonna happen to the federal workforce? And are we gonna let that happen? And, you know, that's where that's where and is there room for the court to say no, or we're gonna we're gonna limit that? There is room for the court, I think, to do that. Or did but the court may be you know, it's possible the court could be persuaded by a bar historicist, interpretation, as you suggested. I just haven't seen that show up in the recent court cases. And so I think that's why I think we all agree that it's uncertain. And I think the professor said, yes, it's at best a guess. Yeah. Well, it's It's a matter of how much of a guess it is. Yeah.

[Rep. Martin LaLonde (Chair)]: Well, they're selective. Our courts are selective ones to look at history

[Julio Thompson (Assistant Attorney General; Co-Director, Civil Rights Unit)]: and run the And this is a court that is has very little respect for precedent, even the statements he made two or three years earlier. So I think that's part of the calculus.

[Rep. Martin LaLonde (Chair)]: All right. Well, I appreciate your testimony. It just gives us a little time for Tom to be prepared for his big day before. Big day. So thank you so much for your attention. Thank you, Mr. Chairman. I appreciate it. And just a couple of things. I'm going I started an email that was sent to you all just about tomorrow, I'll tell you just really generally. I'm going to send an email that has a link that will include the document that's the report of the Division of Racial Justice Statistics that they're going review tomorrow just in case you want something to read. And will be a link to H-four 10 we're taking up tomorrow afternoon. And what that bill does is it defines recidivism, not how the bill is introduced. It's gonna be much simpler. And then it's going to set forth three reports, ongoing reports that we want the statistical analysis center or CRG to continue. These are reports that were started under Act 40. I will send a link to those three. I think they're actually very valuable information. One is recidivism under the correct definition, but I want recidivism under the new definition. The second is arrests and cleared charges, which gives you an idea of just time rate. And then the third is bail, and lots of really interesting data that they collect by bail, which also will be helpful. So H-four 10, I will link to the thing that has those three bills. If you have a chance, you can look at them. But this bill will have recidivism and then those three reports going forward. And also potentially, and I'm not sure if this last bit's gonna survive or not, but I've worked through over the summer of the stakeholders to look for the data availability. But that work might be getting done already by the division of racial justice statistics. That might not be there. But we'll forward everybody for the cost of those moving parts going forward is like $22,500

[Rep. Thomas “Tom” Burditt (Vice Chair)]: Yeah, which

[Rep. Martin LaLonde (Chair)]: seems like a bargain to me given everything else, but there won't

[Rep. Ian Goodnow (Member)]: be that appropriation there. We're going to

[Rep. Thomas “Tom” Burditt (Vice Chair)]: see a correlation with bail and crime and stuff now?

[Rep. Martin LaLonde (Chair)]: I don't know. Maybe, but no, at least So at least, yeah, maybe. I don't know if it

[Rep. Ian Goodnow (Member)]: would be correlation or what's the other Causation.

[Rep. Martin LaLonde (Chair)]: Yeah, not causation. You become correlation.

[Rep. Ian Goodnow (Member)]: Causation. Thank you, Lee.

[Rep. Martin LaLonde (Chair)]: Thank you. That's what I but what we might be able to see I'm gonna David, I just I'm gonna send that email with those links in case people wanna look at it

[Rep. Ian Goodnow (Member)]: in advance. So that idea say you don't have a problem with spending $22,000 a year and you have no idea what you're really doing? No. That what I just heard?

[Rep. Martin LaLonde (Chair)]: No. You did not hear that.

[Rep. Ian Goodnow (Member)]: No. I think I did. Want you all to take a look at this data and see if is it worth You want something? Forward. Yeah. Yeah. Yeah. We're online.

[Rep. Martin LaLonde (Chair)]: Yeah. I know.

[Rep. Ian Goodnow (Member)]: Yeah. Yeah. I think our models ought

[Rep. Martin LaLonde (Chair)]: to hear the amount of

[Rep. Ian Goodnow (Member)]: spending that's going on in this building. Correct.

[Rep. Martin LaLonde (Chair)]: So we can look at But that

[Rep. Ian Goodnow (Member)]: is not really their tax bill.

[Rep. Martin LaLonde (Chair)]: I appreciate it. It will be. What's that? What you disclosed? I just I just disclosed it, and I also told you where the data is that you could if it's worth continuing to gather this data.

[Rep. Zachary Harvey (Member)]: Should we make suggestions for other data we'd

[Rep. Martin LaLonde (Chair)]: like to put into this? No. Regardless. People, of course, can make any suggestions But for I've already talked to them about He's not

[Rep. Ian Goodnow (Member)]: going to listen. Yeah, I missed it now.

[Rep. Martin LaLonde (Chair)]: Doesn't really fit in here into this thing. But it can be something that will because this is going be more public facing than what you're asking for is more state's attorneys. So so I have both of them. Alright. Alright. We're adjourned till 09:00 tomorrow.