Vermont Legislature SmartTranscripts:

[Martin LaLonde, Chair]: Welcome back to the House Judiciary Committee be our last witness on h six 0 six. Matt, thank you for being here.

[Matthew Valerio, Defender General of Vermont]: Yeah. No problem. My office has weighed in on these issues over the year. I mean, I'm Matt Valerio, defender general. We've weighed in on these issues over the years. And I always and and I've discussed these with Rebecca Turner who used to come in and do these, and she's the true expert on firearms rights and and the likes, in our office. And but we always start, like, we're discussing, like, as a matter of policy. We aren't taking any particular position except for that we, as the defendant general's office and every lawyer, should be saying that we are going to stand to defend the constitutional right to bear arms that is included both in the federal and Vermont constitutions. And whatever you do that mitigates that, lessens it, or the like eventually, necessarily, is going to end up in our laps in some case at some time, and then we are gonna figure out whether what you did was constitutional. And there's a the interesting thing about this area of litigation and my office has taken cases under my name, to the US Supreme Court on on these issues, is that it's very difficult to predict what is what is you know, as people try to whittle around, I do think you do that, try to limit gun rights under the Second Amendment and under the from our constitution, What is legit and what isn't? It's very difficult to predict. Many of the decisions that have come out tend to be, at the state level, very results oriented, as opposed to we can't if we look at case law, it's very difficult for us to predict based on case law how any like, the Supreme Court is gonna rule. But you look at a particular case, you might then you might have a particularly unattractive client, and you might be better able to predict the result in the individual case then you can the constitutional determinations of the right that is being argued at at the court. So this this area that you're delving into, the n h six zero six, and I I don't know what version you're up to now with this race now. But in general, it's looking at how do we how are we gonna limit the right? You you start off with a kind of full blown right to bear arms. And then under certain circumstances, you can limit that right legally and legitimately, constitutionally. The question is, can you do that in this particular case, like like what you're trying to do in 06/2006 or not? Or have you been overly broad in carving out the area that you are attempting to carve out to limit access to firearms to the people who are involved in these in the areas that that you're talking about. Part of what you're talking about is the the people who have been subject to mental health orders, right, at at various times. And I can look at the case law that's out there, and, clearly, there's an ability to limit, on occasion people's rights to if they are you know, if they've been adjudicated dangerous based on mental health issues, based on criminal activity, under federal law that's incorporated into state law. The question is, did you go too far, or did you not go too far? And that's, like, on its face. Then the second issue is, as applied, did the government acting go too far, or did it or is it okay? And so you start running through and I haven't had an opportunity. Was a tough subject to come up two days before crossover, to be perfectly honest. A lot of I'm sure there I can see there's a lot of people interested. And so I don't wanna necessarily I don't know what other people everybody has said. I've heard little pieces here and there. I haven't been able to I have not had the time, honestly, to hear what they've all said or read testimony or that kind of thing. But I can conceive of groups of people who would be captured in the proposal that's primarily on I I have draft 1.1. This is probably 5.5 at this point, but who knows? I have 1.1. There we go. Not too bad. I'm only one or two versions behind. But the on 08/06/0121, people who have been gone by the court to be a person in need of treatment and or not guilty in not guilty for reason of insanity, competent to stand trial, subject to a commitment order, subject to a hospitalization order, and subsumed within those groups are people who you don't wanna have guns, and you can probably legitimately deny the right to. But also subsumed within those groups are a whole bunch of other people who would be perfectly fine having a firearm for purposes of hunting or self defense or or any other reason. And so the I know what you're getting at, but the breadth of what you're doing seems to me, on its face, to be too broad. As applied, however, and this is where things always get interesting, what's the case? Like, what's the client? What actually happened? You know? It's gonna arise depending upon what individual like, this may be too broad. But as a case develops over a period of time, what kind of case is it? You know? Is it a multiple shooting case where somebody has been found incompetent or insane? Or is it somebody whose father has died and had a psychotic break as a result and was hospitalized for a month and was treated and came out and is perfectly fine. And actually, where they find their zen is by hunting. And I was a I had a tenant. It was a guy who was in the military for decades and had some trauma as a result of being in the military and doing what people in the military do. And he had this exact, you know, kind of issue when he got out. He had had a breakdown, ended up being hospitalized. And he also had an alcohol problem and, you know, got in a firefight, got charged with aggravated assault, ended up being convicted at some point, but then was kind of relieved of that he couldn't own a firearm because convicted felon. And but he wasn't a gun violence guy. It was a, like, I'm a drunken idiot guy. And he but he wasn't able to own a firearm. Yet every year, when the time was right, he would hunt with a bow, or he'd hunt with a black powder rifle, or he would hunt with a crossbow, or any of the things that you can hunt with. And, you know, because when he was in the woods and he was doing that kind of thing, was the place that made him calm, made him feel good. And, you know, the time when he was hospitalized, as he was working out some of this stuff, was after he was relieved of that he could petition, then relieved you know, this was actually in New York when this happened, but relieved of that trying to state it in a way that's more colloquial, I'm not doing a good job of it. Bottom line is, you can get your right to get a gun back. And he did. And then he was hospitalized later for, like, the problem that he had mentally. And then that was treated, he's out. And he still hunts with all of the things we talked about, which is, you know, satisfying. We'd like to go deer hunting with a regular rifle. And under this, he probably wouldn't be able to, at least under as it was written in 1.1. I don't know what the latest version says. But so to me, that subsumes more of a population than maybe you're even intending to get at. You definitely sort of throw the baby out with the bathwater by including everybody. You definitely get everybody. But that's when you're looking at addressing constitutional rights, you have to tailor what you're doing to a very specific kind of group so that you don't incorporate people who should not appropriately be denied, who have not been shown as a danger or a threat. And there are all kinds of reasons under all these criteria why you might end up you know, one of the really interesting things is, like, a sanity a sanity defense. It doesn't mean your sanity is unique from confidence, because you can be insane at the time of the offense for whatever reason. I can I mean, I could go into some of that if you wanted, but it's not worth it? And then not be insane afterward. You're not legally responsible for what occurred at the in the incident that gave rise to the crime, and then you never have a problem again. Couple of ways you get around the issue. And did you put back in the ability to petition the court to in the first and first version, had the ability to petition the court to get

[Martin LaLonde, Chair]: That's introduced. That's not that's not in there. The idea is that it is when the order of hospitalization or order of non hospitalization is not in place, then they do not have

[Matthew Valerio, Defender General of Vermont]: Then you don't have the disability anymore.

[Angela Arsenault, Member]: The rights are restored.

[Matthew Valerio, Defender General of Vermont]: Right. So to me, I think, at a very minimum, there should be a specific restoration right. You can have, like, default rights where, when the orders are no longer in place, you might wanna for some stuff, you might wanna say, well, then you no longer are under this legal disability regarding your Second Amendment rights. But at the very minimum, you need to have the ability to petition to have those rights restored. The first version I saw had that. The second version didn't have it. And I didn't know you know, I I I would wanna see that kinda be specific just to make sure that you're getting in the range of being constitutional so there's an option to affirmatively restore your Second Amendment rights if you fall under one of these categories. The other thing is, though, and it gets

[Martin LaLonde, Chair]: don't you I'll it. Well, this is think it I I really appreciate the the point that you're making, Matt, and I think this is more a question for the chair, is if that petition can be added back into the legislation. It can be. Anything can be done. I'm looking to see if it would upset I guess just apple cart of what So they say, will we do that? Don't know yet. Okay. But we'll consider it. Can I I'm looking at it right now?

[Angela Arsenault, Member]: That's for point of clarification.

[Martin LaLonde, Chair]: Point of clarification on the same thing here.

[Angela Arsenault, Member]: So are you saying that that the right now, as it is in in 2.1, it says the subject of a commitment order?

[Matthew Valerio, Defender General of Vermont]: I can't tell you anything about 2.1.

[Angela Arsenault, Member]: I know. That's why I'm reading it. Is the subject of a commitment order issued by the court or is the subject of a hospitalization order issued by the court of the nonposition order? Page six, lines 14 through 18.

[Martin LaLonde, Chair]: Yeah. Got it.

[Angela Arsenault, Member]: And my understanding is that that language was very carefully crafted, that the word choice is very specific to be clear that the rights of possession are restored once that person is no longer the subject of the treatment order, once that has expired or however it's disposed of, that there's an automatic restoration.

[Martin LaLonde, Chair]: Why didn't you say that?

[Angela Arsenault, Member]: I don't know I can write the language. But I'm wondering if that if that's the

[Martin LaLonde, Chair]: same language that you're It's not apparent.

[Matthew Valerio, Defender General of Vermont]: But it but I, you know, I could see how you might infer that. But it's not apparent. If that's what you intend, you should say that. I also think there should be the ability to move in.

[Angela Arsenault, Member]: Why would you need to petition it?

[Matthew Valerio, Defender General of Vermont]: Well, what if you are under a order of non hospitalization or you've been found incompetent to stand file, it has nothing to do with an issue of violence, you know? And you might want to

[Angela Arsenault, Member]: The petition for an exception, not really a restoration.

[Matthew Valerio, Defender General of Vermont]: Well, it's a restoration based on the fact that you that notwithstanding your mental illness, you are not a danger.

[Angela Arsenault, Member]: You cannot bake it into the

[Martin LaLonde, Chair]: finding? It's not apparent. I don't think it would provide any problem putting those paragraphs in fact. Mean, we have a whole procedure. It refers to the whole procedure we already have in here for petitioning to have their firearms back due to mental illness. It's there.

[Matthew Valerio, Defender General of Vermont]: To me, because what you're doing, you're waiting in constitutional waters, right? So what you don't wanna do is be vague. And even though you might reasonably infer what you're suggesting to be the case, you don't want to leave it to interpretation. You want to tarot if you want it to stand up to constitutional muster, you want it you want to tailor as narrowly as possible to get at specifically at the group. And if those rights are not intended to be taken, you have to be you have to tailor it as narrowly as possible and be specific about what you're trying to do. Now I I don't doubt and I don't disagree that these as written, you could infer exactly what you're suggesting. But when I think when you're dealing with constitutional rights, the more specific and explicit you are to make sure you withstand scrutiny, the better off you're going to be.

[Martin LaLonde, Chair]: And I guess on the constitutionality question, in your view, Matt, as it's currently written, that this would probably find the face of a constitutional challenge. I would say so.

[Angela Arsenault, Member]: Yeah.

[Matthew Valerio, Defender General of Vermont]: Yeah. I just think it's overly broad. And while it might infer the right group of people, it also subsumes a larger group that first of all, I don't think you're really intending to get at. Maybe you are. But if you are, I think that's gonna be a problem for you.

[Martin LaLonde, Chair]: Can we get Julio in? Probably not. So there's not gonna be any more testimony at this point after Matt? Correct. I mean, there can be more testimony, of course, in the senate if the the bill makes it over there. So

[Matthew Valerio, Defender General of Vermont]: There's there's one other weird thing, and I don't know if anybody else brought this up. Like, I'm just and I'm speaking kind of generally about, like, how you address this. Let me but there were two other things I kinda wanted to talk about. I know there's always an inclination when you see somebody who has violated something like this to create a cry as the response. But it's somewhat, like, logically inconsistent and a little bit nonsensical to identify somebody as being incompetent to stand trial and then not able to possess a gun, and then create a crime as the remedy for someone who you already have adjudicated as incompetent to stay in trial. You know what I mean? Yeah. It's it's one of the conundrums of our mental health system as a whole. Right? So this is what happens. It could be it could be anything. Right? You could someone could be say it's unlawful issues. That's a good one because those happen. And and the person is, like, not confident. And at least the person's found not confident. They're released on an order of nonhospitalization, for example, because they're not particularly dangerous. And the next day, they commit unlawful mischief. Then they are what happens next? They get arrested. They get brought back to court, and they get charged again, even though literally days before. And this I swear to god, this happens over and over. They were just adjudicated incompetent. They're under an order of non hospitalization order, and now we're back in court with a new criminal charge even though they're literally under an order saying they're not competent to stand fire. So I just find it a interesting response to create crimes for people who have been adjudicated, incompetent, insane, or otherwise subject to mental health orders where you say, we're you're not you're not competent, but we're gonna try to do the kind. Like, the incompetence removes you from the jurisdiction of the criminal court. Now there might be other things that could be done, and I I don't wanna legislate for you. Do you?

[Angela Arsenault, Member]: Yes. You do.

[Matthew Valerio, Defender General of Vermont]: No. I don't. I really don't. If I if I could, believe it or not, as to this issue, if I can go back to corrections institutions right now and talk about gender identity issues, I'd be happy to do so.

[Martin LaLonde, Chair]: Well, I'm talking about If

[Matthew Valerio, Defender General of Vermont]: there were a confiscation issue or a forfeiture kind of if somebody's already adjudicated incompetent, if there was a procedure to, you know, confiscate the weapons as opposed to like, why create a crime? What would to somebody who's already been adjudicated incompetent. It doesn't doesn't make any sense. I know it I get it. You know? It's but the criminal justice system doesn't solve this problem. You know? It's it's another part of government that solves this problem. You know? Because if they're incompetent, they're still incompetent, especially if they're under an order or you know? And then if they're if they are competent and it it wasn't a violent crime, you've subsumed somebody into proceeding that shouldn't be there to begin with, yet there's a potential crime. So this is how this is I just wanna play out for you Sure. How this could how this is going to come back if you pass a bill that is too broad, and then how, as defense lawyers, where you're gonna attack what you did.

[Martin LaLonde, Chair]: So I have Zach, Angela, and then we can. So two questions, Matt. I wasn't paying attention. Insofar as the the mental health section of this, would you find the bill as currently written prejudicial towards people with mental health?

[Matthew Valerio, Defender General of Vermont]: Well, yeah, in prejudicial to people who bought it. Yes. But it is yes. And so you're right. But it's a it's what it is, it's really not a prejudice issue to me. It's overly broad. From a constitutional analysis standpoint, it is it may be because, like I said, I don't know how any particular court's going to rule based on based upon precedent because these tend to be very results oriented based on individual cases as opposed to but it looks like it's subsuming a population that is greater than it needs to to address the issue you're trying to get at, which is a legitimate issue. So But it's overly broad. So it's an overbreadth issue constitutional.

[Martin LaLonde, Chair]: I appreciate that. So and I just wanna check my own understanding that if we were to remove section three from the bill, that would remove some of the constitutionality concerns that that you have and kind of the prejudice towards people with mental health.

[Matthew Valerio, Defender General of Vermont]: Well, yeah. I mean, it it struck section three. Yeah.

[Martin LaLonde, Chair]: If struck That's the constitutional concern that you have.

[Matthew Valerio, Defender General of Vermont]: Yeah. If you struck section three, absolutely do it.

[Martin LaLonde, Chair]: Can we strike section three? Excuse me. We can do anything. No no comments from Valerie. So we should discuss all what we want to do with this later. Well, we're gonna have open discussion. After Matt leaves. Probably depends. We have a couple other things to do before we obviously before we vote. So tomorrow, it might be tomorrow we'll have the discussion if we don't get to it today.

[Matthew Valerio, Defender General of Vermont]: What can I so those are the oh, I can get more questions?

[Martin LaLonde, Chair]: Happy to answer that. Go ahead, Anton. My question will probably be answered for me. No. It won't. Because I don't know No, we call that

[Matthew Valerio, Defender General of Vermont]: I'm good, but I can't read you by it.

[Martin LaLonde, Chair]: It's good.

[Angela Arsenault, Member]: Matt, do you think that the federal law, 18 U. S. C. Section nine twenty two is constitutional?

[Martin LaLonde, Chair]: Well, it's been found to be constitutional. So we're facing

[Angela Arsenault, Member]: pretty much the same. Our law is actually more narrow, less broad, than the federal law, so I'm confused.

[Matthew Valerio, Defender General of Vermont]: Well, our constitution is our Vermont constitution is also different. And see, this is the thing. It's as applied. You know? If you look at that on its face, can it assume people who are not who you're trying to get at? Yes. But as we go through it, we look case after case after case, maybe we just haven't had the case yet that elucidates the idea of the overbreadth. You know?

[Angela Arsenault, Member]: We have. But there have been a number of cases at the federal level which really shed a lot of light on what we're what we're doing here.

[Matthew Valerio, Defender General of Vermont]: Yeah. And on shown

[Angela Arsenault, Member]: over and over that it is, in fact, constitutional.

[Matthew Valerio, Defender General of Vermont]: Then you should try this and see what happens.

[Angela Arsenault, Member]: Yeah. That's it. Okay.

[Matthew Valerio, Defender General of Vermont]: But I'm just telling you, I'm giving you a warning about how people would approach it. I'm not taking a position on what you should do or not do. I'm telling you how a lawyer is going to pick this apart. And and and so, you know, I'm not here as an advocate. I'm here as an analyst. And, you know, I don't know if the AG's office showed up on this. But you you know, John Treadwell used to be here before he became a judge. I love the fact that he was here because we'd sit here, analyze things, agree 98% of the time, and then the committee go home. Attorney general and attorney general's office all agree, and everything's fine. But they're absent on some of these issues now, and I wish they were here. So in any event, that's just an aside. But

[Martin LaLonde, Chair]: I I I know you're waiting to hear from me. So but you already said it. So you've already set the word out there that this bill is set up for you as your job as defendant general. You're just gonna pick this apart.

[Matthew Valerio, Defender General of Vermont]: Well, I would do it if whatever you do.

[Martin LaLonde, Chair]: Oh, I I am.

[Matthew Valerio, Defender General of Vermont]: I didn't.

[Martin LaLonde, Chair]: But that's your job. That's that's totally it. And and I was

[Matthew Valerio, Defender General of Vermont]: I'm telling you how a whether it's me or somebody else, how a lawyer would analyze a case that came to them in the course of, you know, what we do and how we would look at attacking the legitimacy of the statute, the legitimacy of the conviction, or how it's applied to the particular client. You know, it it wouldn't there are times we where, you know, we we take cases that and I'm not talking about firearms cases at all. But an individual client's case that we can win ends up hurting every client that we're gonna have for the next ten years, but we have to represent that client that's in front of us that day. It's not it's not normal thinking. You know? It's not what the general public or laypeople, how they conceive of the world, but it's what we do every day. It's it's it's law school changes your mind and the practice of law. You think about everything differently. You know? Someone gets in a car accident before you go to law school, you wonder, you know, is everybody okay? You know? And, you know, and when a lawyer looks at it, they wonder they wonder, oh, is there liability? Is there insurance? Is there you know?

[Martin LaLonde, Chair]: That's my last

[Matthew Valerio, Defender General of Vermont]: Yeah. You know? It's a different kind of person who does this stuff. But the bottom line is I'm just trying to tell you how we would look at it.

[Martin LaLonde, Chair]: Yeah. I know. I appreciate it.

[Matthew Valerio, Defender General of Vermont]: So the only thing and I and I don't know if it's in latest versions or not. It was an oddity that I noticed and I made a little note because I thought it was it was a definition of firearm. And they're

[Martin LaLonde, Chair]: because you can't even visit. We

[Matthew Valerio, Defender General of Vermont]: brought it. It's this. Yeah. And I've I've made a specific note on it only because we have multiple definitions of firearms.

[Martin LaLonde, Chair]: Yeah.

[Matthew Valerio, Defender General of Vermont]: And oh, yeah. In '13 VSA forty forty I don't know if anybody ever talked about this because it's kind of a so deep in the weeds, but it's a the forty sixteen versus forty seventeen definition. And the forty sixteen one is, like, much broader.

[Martin LaLonde, Chair]: Yeah.

[Matthew Valerio, Defender General of Vermont]: And you chose that one, which is not like the

[Martin LaLonde, Chair]: Changed to forty seventeen. Oh, okay. Because it apparently is a fine testimony on that particular Oh,

[Matthew Valerio, Defender General of Vermont]: you? There you go. Oh, okay. I can't

[Martin LaLonde, Chair]: find out as well.

[Matthew Valerio, Defender General of Vermont]: Well, yeah. I mean, I I I was just like I was reading it. Was just like, why'd they choose that one? But, anyway, I don't know why. Maybe there was no particular reason.

[Martin LaLonde, Chair]: I have to ask Ken, because he was a cosponsor of the bill. So you can ask him why did Joe sponsor.

[Matthew Valerio, Defender General of Vermont]: That is behind him.

[Martin LaLonde, Chair]: None on this part that went into your phone for a second. Just kidding. He wasn't the lead sponsorship. Hear you say that's a little unfair. I was unfair.

[Matthew Valerio, Defender General of Vermont]: Didn't do the unfair. Just so that the record reflects. This your You can have it. Thanks. That was the only thing that I wanted to point out, and that the definition was the last piece. And I take, again, to be clear, I'm not an advocate. I'm not taking a position on this bill. I'm just telling you how we would attack this in the event that a case arose under this statute for us and kind of pointing out from on the criminal side of it that there's like a the logic to charging someone a crime who's already communicated incompetent, or is subject to an order that, you know, that would subject them to the criminal liability. So you gotta think about that. But, otherwise, you know, that's kind of that's all I have to say.

[Martin LaLonde, Chair]: Well, I'm sure Alice would be excited about getting back after this. Just wanna thank you for your explanations and and your examples. Sometimes in the past, we look at I'll just say people in your capacity that come in here and and and might have a similar argument doesn't doesn't do as as good a job explaining the position. So I just wanna thank you for that. No.

[Matthew Valerio, Defender General of Vermont]: I appreciate it too. No problem. Appreciate it.

[Martin LaLonde, Chair]: Thanks thanks for making it too. Thanks for your flexibility.

[Angela Arsenault, Member]: Thank you.

[Matthew Valerio, Defender General of Vermont]: Thanks for accommodating.

[Martin LaLonde, Chair]: I just yeah. I have a I have a question on this while while we're here. So can the committee expect any further changes on the legislation as drafted? No. I'm I'm gonna suggest subsection The petition. The petition. I'm gonna suggest four four five a. And so we're not gonna hear from any constitutional law scholars? So no, the intention mean, so we're looking That doesn't mean that we're not worrying what his arguments were. As Angela pointed out, this kind of thing has been upheld a lot. And we've had some of the other witnesses are, in fact, constitutional scholars. Some Well, Billy Clark has done a lot of work and has testified the constitutionality of these past. People from every town has as well. I mean, we haven't had somebody from the attorney general's office generally testifying on that or issue spotting for us way in the past, just in recent years. There hasn't been like the person there. So they've been on a gun bill, the attorney general's office? They haven't recently, not in recent past, I know. But the point is that mental health has been upheld, and actually, I'll explain a little bit further, in 13 BSA, 4822 and 4823, 04/2022, is with respect to, let me just make sure. This is where there's a finding, this is what we're basing this on, it's 4822. And we already have laws, and I'm gonna tell you what it is, 4824, where an individual who is subject to treatment pursuant to 4,822, we submit to the NICS system. And we looked at that issue as far as whether that may be appropriate or not. And at that time, it's been upheld, Army of Lodge, I don't think it's been challenged.

[Angela Arsenault, Member]: That's more of a

[Martin LaLonde, Chair]: petition issue. It's 48.25, right after that, it's a petition. I'll add that back. But the thing is that with this, for the NICS system, we're sending up any wherever there's somebody in need of treatment under 48.2. And the way they can get out of it is a petition. This actually is narrower. It narrow it to crimes of violence under Section 4,017. So this actually narrows what we're including in ours and what we're sending out to next. And we're not going to hear from ETF? No. We've tried to have ATF before. We've never been able to get into it. So my thing with this, and I know that we're gonna have additional discussion tomorrow, is that given that we have heard concerns that there is a constitutionality, you know, consideration here that I think I don't know if it's being fully entertained because I I really have real reservations about passing anything out of this committee written like this, especially with sections three still in there, and I fully intend on talking to senate judiciary to express those concerns about from myself and and others on the committee. But at this point, given that we're not gonna hear any other testimony on this bill, I would move every report h six zero six adversely from the committee. Yeah. I mean, we can consent to that tomorrow, and I can reach out. If we're fine if we're all fine, if we're all fine to tomorrow afternoon I think you just called for a vote. Yeah. Well, I'm I'm I'm suggesting the wrong term. We're we're all fine I'm not backing down from the boat, Martin. I I mean, the nation's rules are one of all these calls for the Or I can recess, Rachel. I'll just recess