Vermont Legislature SmartTranscripts:

[Unidentified Committee Member (possibly the Clerk)]: We are live.

[Rep. Martin LaLonde (Chair)]: Welcome to the House Judiciary Committee this Tuesday afternoon, April twenty eighth. And we're gonna start with S-two zero eight, and we're gonna hear from the Attorney General's office. Julio, if you could join us. And I asked Juno to testify in light of the Ninth Circuit opinion that we had testimony on and discussed last week wanted to get a little more input on what we should do based

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: on that opinion and

[Rep. Martin LaLonde (Chair)]: the reasoning that is in that opinion.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Over to Martin. Good afternoon. Again, for the record, Julio Thompson, attorney general's office, co director of civil rights unit. Thank you for inviting me today. Was out all last week and and yesterday, so I'm still playing catch up with some of the testimony or or discussion that the committee's had about s two zero eight, which is the limitations on masking and the requirements for identification for law enforcement officers and things like that. I have read the Ninth Circuit decision, which was focused primarily on whether there would be preliminary injunction pending appeal of the California law regarding identification requirements in the law that's called the No Vigilantes Act, which has to do with law enforcement identification. Identification. That appeal didn't directly address the no masking law, which is I think called the No Secret Police Act in California because that had been enjoined by the district court and had not been appealed by either party. So I'm not sure exactly what you want me to address, and it might be better that a q and a format is applicable. I will tell you where the decision or where we are today in the Ninth Circuit, the court issued its decision on April 22. And under the rules that apply to the Ninth Circuit, the state of California has fourteen days, I think that's May 6, to file either ask the three judge panel to reconsider its decision or clarify it, or to ask the entire or a majority of judges on the Ninth Circuit to take the case and consider it as a larger body. It's called en banc review. There are 29 active judges on Ninth Circuit, and so they take a majority of those that would be drawn at random to decide whether to affirm reverse or clarify or send back for clarification. There's been no indication what the state of California wants to do. And so that's kind of where the sports sits right. Speaking generally about the Ninth Circuit decision, I can tell you that the federalism concerns that the court raised are similar to those that have been presented to the committee. The question at

[Unidentified Committee Member]: all

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: times when you have a state law that affects federal actors is to what extent in a state apply a law which not only touches people who are either private citizens, local and state government, but also federal officials or federal entities, is always a matter of line drawing because we know, for example, that from existing case law that the mere fact that one's a federal official doesn't exempt one from state laws that prohibit burglary, manslaughter, reckless driving and the like. And so the question for a court in any case is whether a given law, if it is neutral on its face, and I think S-two zero eight is currently drafted as neutral on its face, does it nonetheless impermissibly cross the line into regulating federal law enforcement? And the Ninth Circuit disagreed with the district judge and thought that it did because it spoke to how federal law enforcement instructed its officers how to carry out their duties. So the cases that the Ninth Circuit referred to, going back to Supreme Court decisions to the nineteenth century are the same ones that you've heard about from me and from other witnesses, including, I think, academic witnesses who have spent more time than we in the attorney general's office do on the history of some of the court's decision making in this area. Nothing in particular stood out from the Ninth Circuit's decision. Like it's wholly unexpected at the same time, again, because the Ninth Circuit is a large circuit. I would say that it wouldn't have been wholly unexpected if a different three judge panel randomly drawn from the 29 active judges had reached the opposite conclusion. I think the questions are that close. There is language in the federal case law that could provide support for a different three judge panel. And that said, I think that the analysis in the Ninth Circuit, I wouldn't say held any surprises as to how they interpreted that California law as distinguished, the court was trying to distinguish that between, let's say, a general traffic law, where you have to obey stop signs, whether you're a federal officer or not. So so that's that's kind of the very high level take on the Ninth Circuit decision. So just on the well, not the stop sign example, but I've heard the speed limit example, that if a federal official was way over the speed limit but in hot pursuit of somebody in part of their federal, their official duties, could they be ticketed or not? I would have to look at the motor vehicle laws. I mean, Vermont's motor vehicle laws do contain exceptions for law enforcement officials. They don't distinguish between state or federal officials, as you might imagine. And that's true for other regulations as well. For example, in Vermont, there's a general prohibition on carrying a firearm inside of a hospital, but there's a law enforcement exception that is broadly stated that doesn't specify whether it's state, local or federal. And so it depends, I think if the facts were such that let's say the federal official was off duty or admitted during the traffic stop that he wasn't responding to it, or they weren't responding to an emergency, but in fact, they just got a new vehicle. And they wanted to see how fast it would go, shooting across the open flats on February evening. I

[Rep. Martin LaLonde (Chair)]: think that would be

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: a very strong argument there that it's health and welfare laws implicate Vermont's sovereign interests. It really isn't about governing how law enforcement carries out its business. It's just governing people who from whatever career they have, they're on what we sometimes call in the law a frolic and detour that one status as a federal official would plot. So

[Rep. Martin LaLonde (Chair)]: it's

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: a tricky question. I will say that if you take a look at the Ninth Circuit decision, and I recommend it, it's fairly straightforward. It's not very Sometimes decisions are very difficult to read. This one I don't think is very difficult to read. Think the question is a lot closer than the Ninth Circuit panel made it out to be. The district court in this case said, we think What do you

[Unidentified Committee Member (possibly the Clerk)]: mean the question is a lot closer than the

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: The question of whether that neutral law crosses the line and impermissibly regulates the federal government. I think it's a lot closer than what the Ninth Circuit made it out to be. And that's not surprising. And disclosure, I'm going to talk about the Ninth Circuit, talking about a former employer of mine, at least for one year right out of law school. It's not, judges are in addition to being judges, most of them are lawyers. And if they make a decision, they try to state it in the most persuasive way. But there it is. So the Ninth Circuit decision reads like it's very matter of fact that there is a difference between this law and a traffic law. And the district judge said just the opposite, also not that much analysis and saying it is quite analogous to that. And it's just a question of, and the Supreme Court hasn't really ruled on these kind of line drawing exercises, because the Ninth Circuit said this law is targeting the federal government because it talks about law enforcement. And therefore, that's impermissible. That was the sort of analysis the Ninth Circuit was going for. But one could also say that a driving law targets drivers. There are tens of thousands of Vermonters who are not subject to driving laws because they can't drive. And so how you define a law as to whether it's targeted at somebody or some, or it is a matter of choice. Once you frame the definition, then the decision might sound easier than it is. To use a more Vermont specific example, Vermont has a lot of covered bridges. State law requires every town and municipality to state weight limits for all of its roads that I live on a dirt road. There is a stated weight limit for my dirt road, and it varies according to the calendars. You might understand that all dirt road veterans will know what I mean. So, you know, the average covered bridge in Vermont can take about three to 6,000 pounds of weight. That's what they're rated for. And in all the towns in Vermont, that's you typically see, I think, maybe in in Tunbridge, it goes up to 8,000 pounds for one covered bridge. Using a very simple analysis, well, touches on federal officials, therefore it's impermissible. Well, there are federal armored personnel carriers SWAT teams use, as well as state and local SWAT teams, and some of those weigh upward of 13,000 pounds. There's one that could be used by the military that weighs 40,000 pounds. But it's a law that says that, yeah, 6,000 pounds is the maximum. And the mere fact that it would affect federal officials who can't drive their 13 or their six ton or 13,000 pound truck across a covered bridge, but might have to just go around the bridge at the roads there. It's always roads or bridges that go around that. Wouldn't really affect federal operations. And that sort of characterization, like, well, you just drive around the bridge, it doesn't really affect you. That's the sort of analysis that the district court took in California and said, hey, for for most of your history, you didn't mask people who are making basic arrests in the immigration or other context. You didn't do that. So don't tell us it's essential. You don't even require it. Now you permit it, but you don't require it. And so the judge saw that that's not very different to use my Vermont as an example. That's not very different than saying, well, you can't drive across a covered bridge because there are consequences to that, different consequences to the local population, but still state consequences that the federal government doesn't own. The state has to deal with that problem. And the Ninth Circuit said, well, no, you are if that law and maybe there might have the limit might have been enacted after an incident happened where there could be a federal vehicle went across and wrecked a covered bridge, then the town passes an ordinance that says, yes, six tons is the limit. The mere fact that it might touch upon federal operations from the United Circuit's perspective would say that just, you know, that's just not that's not something you can do. We believe that to the federal government as to whether how they're gonna they get to decide where to drive their trucks. So I think it's a matter of definition, and I think the Ninth Circuit, took one path and used very familiar arguments, I think that have legal support. And I think the district judge also had some cases that she could quote and cite to that offered her some support. But I think in general, questions are a lot closer.

[Unidentified Committee Member]: I might jump into the end here, but I'm curious of the piece because I know yesterday, eight forty nine became law. And one of the things that the governor stated was that questioning the constitutionality, but that the attorney general's office was prepared to defend it. And so I think that's always a piece that we're looking with these when there's the question of constitutionality. Where does the Attorney General's Office stand on this current version? Well, think we

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: would be obligated and we would be able to defend this law. What we can't tell you, because we can't tell the future or predict what individual judges will say, is we don't know what the outcome would be in district court or in the Second Circuit. We're in the Second Circuit, and just

[Rep. Martin LaLonde (Chair)]: the

[Unidentified Committee Member (possibly the Clerk)]: because

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: tightness of scheduling, haven't looked at all of the decisions that are within the Second Circuit. That's not only the Court of Appeals, but the district courts in New York, Vermont, and Connecticut. Those are the three states in the Second Circuit on these questions about when you can have a state law and where it might affect federal officials. We do know, for example, that state income taxes can apply to federal employees, even though that has the effect of making federal employees poorer than they otherwise would be. And so it's hard to say. But I think there's language. And even in some of the court decisions that the Ninth Circuit cited, that suggests that there is room, there is more room than the Ninth Circuit was willing to accord California in that. Now whether the Second Circuit would agree with that, I don't know. We do have, as you might, it's a big country, lots of federal judges. I mean, we do have cases where on different areas of law, the Second Circuit has one position, the Ninth Circuit has another, or we're next door neighbors to Massachusetts. The First Circuit, this first circuit might have a different view than count than we do in the second circuit. So it's there certainly is room for the second circuit, and I would have said earlier for a different panel in the ninth circuit to have come up with with a different decision relying on the same body of case law. And not just because we haven't had cases quite on this topic, we now have one case in California that's close. But we generally, we just don't have a lot of case law there. And sometimes the Supreme Court says, there's a firm line. And another time the Supreme Court says, when we're looking at that, we have to take a functional approach. The court will start talking about the burdens. Ninth Circuit said, no. No. No. You don't look at burden. The district court says you do look at burden, and they don't have definitive word on this kind of law from the US Supreme Court. So I think with age 49, I don't think we were predicting success, but we'll say, do we have legitimate risk jargons to make? And I think we do. And I think the same will be true for 2008. But I would just point out that for those witnesses, and I would include myself that said, there are some arguments to overcome. The Ninth Circuit laid many of those arguments out. So when I read the Ninth Circuit decision, I must say I personally, from my own point of view of analyzing it, there weren't arguments that I was surprised by. I just thought, okay, I see they're taking a particular viewpoint. And so that's the way they went with it.

[Rep. Martin LaLonde (Chair)]: So just looking at the opinion and maybe these are questions we have to ask, probably need to ask ourselves in determining where to go with this, just looking at page 12 of the opinion where they talk about the California law, the courts override the federal guidance power to determine whether, how, and when to publicly identify its officers. And in doing so, it aims to regulate the manner and conditions under which federal agents can enforce federal law. And I guess if we agree that it is regulating the manner and conditions under which federal agents can enforce federal law, then in my mind it kind

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: of comes out to potentially a

[Rep. Martin LaLonde (Chair)]: higher potential that it's unconstitutional.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Think it's a mean, I think We have

[Rep. Martin LaLonde (Chair)]: to kind of evaluate that kind of factual. We think that this is regulating the matter and conditions under which federal agents enforce federal law. And I know he has arguments that it isn't, but I think that's one of the fundamental questions.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: I think there's no question that, I mean, on its face, I think that S-two zero applies to both state, local, or to all three state, local, and federal authorities, and does speak to what they may do and what they may not do. Question, like I said, the close question is like, how is that different in deciding how fast a federal officer can go down a school, like a flashing light during school hours? When they can decide they're going to exceed that speed limit. From The United States perspective, we get to decide when our officers think it's okay to run through school zones. And California, most states, I think, and I think Vermont would say, No, I don't think that's right. Have to have more than that. You have to show that you needed to do it. But the Ninth Circuit just took the view that it is regulating, it is basically imposing limitations on when people can mask and not mask, and they're quite detailed. The fact that California had what it referred to as a safe harbor, these laws won't apply if you have a policy that's more in line with the state statute. The ninth circuit said that safe harbor isn't really safe at all, because all you're doing is saying, well, now you're telling the Feds not only either to dress or behave this way when they mask or ID themselves, but now you're telling them that they have to write a policy that they otherwise didn't want to write. And that's direct regulation as well. And I think that that's an argument, I think that is a perfectly logical argument that giving the proposed or the, I think the contemplated off ramp that California gave to the federal government, I'm not surprised that the Ninth Circuit said that won't work, because there's still the proviso that whatever policy you write, you still have to step in line with what California wants, and maybe articulate more exigent circumstances, but you still have to articulate exigent circumstances. So I think that is definitely a decision. When you have a decision about a law that's closely analogous, it's unanimous. The road ahead for lawyers who have to defend the law is inevitably steeper. It doesn't mean it's not traversable, but it definitely makes the case more difficult, or similar laws more difficult to defend, though not impossible to defend. And again, the gauge probability is very hard for us to do, and we don't do that.

[Rep. Martin LaLonde (Chair)]: And this is a question that I would like to ask you, but don't expect an answer because I don't want an answer actually. It's kind of interesting. Well, no, it's interesting because That

[Unidentified Committee Member]: makes a statement. They don't.

[Rep. Martin LaLonde (Chair)]: Won't be a question I just don't want an answer.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Just to be clear, I'll

[Unidentified Committee Member]: ask you. I'll ask you what other people are saying.

[Rep. Martin LaLonde (Chair)]: It's a statement that actually ends in a question. But but as by way of background So say it.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: That's my setup statement that

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

[Unidentified Committee Member]: I will will ask you to connect it up

[Rep. Martin LaLonde (Chair)]: as well. I'm taking it with us after I've set it up. Can I make a suggestion?

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: We a lot of reasons.

[Rep. Martin LaLonde (Chair)]: Well, in that case, I'm gonna really take you down the slope of

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: the game.

[Rep. Martin LaLonde (Chair)]: So when was attorney at the Department of Justice, and my clients were doing something that is like, yeah, I have reasonable arguments. I have arguments I

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: can make straight faced. But

[Rep. Martin LaLonde (Chair)]: I think we have like a 20% chance of winning. So I suggest you go back and do that environmental impact statement again, or don't have us keep on going in this litigation. I can't ask you that question because you're the attorney general

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: You asked me, I don't

[Rep. Martin LaLonde (Chair)]: have to advise the Right. So you can advise the legislature in part because if we go down the road, which I think we have less than a 20% chance of prevailing in the Second Circuit. But if for some reason, the body decides that that's not the case, you're going have to go in there straight faced. Straight faced, am I using that? You're gonna have the defense. So I'm not asking you to give me that because you wouldn't give it to me even if I asked. Legislative counsel, it's just kind of an awkward thing because I think we have to make our own judgments, and legislative council isn't gonna give us a percentage chance either. Yeah, don't want a chance. Is this my chair privilege or something? Well, no, I just want to get that out there as far as, you know, we're talking about there are idea what you're There going to are arguments that can be made. Course, you're called lawyers. Right, that's what we do. We come up with our Yeah.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Is there any attorney that we had access to as legislators to sort of ask that question.

[Rep. Martin LaLonde (Chair)]: You can ask the legislative counsel when offline, and there's an attorney client, brother Joe. But any minute, it's been laid out. So other questions for Julio? One question. Any other long statements that hopefully end this one?

[Unidentified Committee Member]: It's a question not for a witness, but how are we gonna move forward in figuring this out? Well,

[Rep. Martin LaLonde (Chair)]: my view is that having read the opinion, having talked to, well, legislative council goes over this in here, is I think it's very much an uphill battle. That my understanding is the second circuit has not been very favorable to these kinds of arguments. That's a really high level understanding and that we should not push. I mean, that we should ask for the policy for state and local. But it seems like there's too high of a risk that this is, I feel it's unconstitutional, even though I think there's some arguments. So in the past when we've had like a firearm bill and there's been Actually Joe Andriano and I disagreed on whether we thought it was constitutional or not. He thought it was unconstitutional. I thought it was constitutional. I thought we had good arguments. So I proceeded to vote and agree with that. In this instance, yeah, there may be some arguments, but I fundamentally think that this is unconstitutional. I agree with what the Ninth Circuit had. So I'd be hard pressed

[Unidentified Committee Member]: to vote for this. So you're looking for some interest from us. Otherwise, that's gonna be the

[Rep. Martin LaLonde (Chair)]: Yeah, that's where I am. Can tell them we're having a little discussion, Derek. But that's kind of where I am.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: There's one thing I wanted to mention about the existing or at least draft, and I don't know whether it's of interest to the committee, so feel free to stop me. There is, since I last looked at the bill, a new non severability provision saying that if any part of the law is declared unconstitutional, then the whole thing goes away. That seems pretty straightforward, but in practice, it may not be that straightforward, because if there were a legal channel, let's say becomes law tomorrow, federal government sues next week, it could be that a district court does it, because because the case hasn't been fully litigated, says, it looks like it may be unconstitutional, so I'm going to block it. I'm going to issue a temporary injunction, and then we'll let the case proceed, but we're going to maintain the status close to the law, cannot go into effect. That's what happened in California with respect to its mask law. And now the Ninth Circuit says that's what's happening with the ID law. The case is still going on. And so the court reserved the right to say, you know what, we got better briefing, thought about it, slept on a horn, we think it's constitutional. So it may take years for the courts to say finally whether it's invalid or not. And so the question for me looking at the law, which does have time sensitive requirements for the criminal justice council to develop a policy by, I think next January. And it just wasn't clear to me what the committee or the folks who were, and it could be alleged counsel, the folks who were thinking about the non severability law, whether that would operate at all if two weeks from now, a federal judge says, we're gonna block this temporarily. Does clock still tick for the criminal justice council to go to the work of creating a statewide policy? Because there isn't a final word from the district court? Or did you want that to stop as well until the dust settles and we know what the courts say in order to save resources or otherwise? I could see views either way, like we think it's worthwhile to do that work, even if ultimately it never goes into effect, or we could say its resources are scarce, and therefore we wouldn't want the CJC to spend time on a policy that may never go into effect because of the non severability provision. Most of the cases that dealing with the federal government are at the preliminary injunction stage. We are birthright citizenship is a good example. We obtained a preliminary injunction with co plaintiff states within thirty days of filing the lawsuit, and it's more than a year later awaiting word. Probably won't get word till late June from the Supreme Court about that particular executive order. So we don't have a final determination, we just have these preliminary determinations. And so the non severability clause doesn't really address that contingency, which I would say is highly foreseeable. That's how most cases go with that initial court order to preserve the status quo. And I'm not sure what the obligation would be. And I'm not speaking here for the CJC, but I could I could anticipate that they would have a similar question.

[Unidentified Committee Member (possibly the Clerk)]: We we didn't ask ourselves what if when we tried to pass this legislation. Make sense to you?

[Unidentified Committee Member]: Yeah, no, I don't Well, no,

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: I mean we didn't think

[Unidentified Committee Member (possibly the Clerk)]: it would go, yet we put it forward, so we put something in there and go back up, but now do we wait? Or we would have to just go by the way we wrote it, figure out where does it stand at that point. You mean if the current draft that we have with severability goes Yeah.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: I mean, I think that a bill is draftable to say if there is a preliminary injunction or for any part of the bill, then x or y happens, either it proceeds or it doesn't proceed. That's a choice legislature to make. I don't think it's a question that like your hands are tied. It's just a question of what you want to do. And I think that usually with severability clauses, a lot of cases, there's just one challenge and it's just decided. But we know with these state federal issues, and the dozens, many dozens, and beyond the state of Vermont, hundreds of cases dealing with state, federal, issues, that you can have these preliminary orders that are in effect for years. And this just doesn't say one way or the other what the legislature or this committee would want to do. And so that would be a question that I think the CKC and other folks who are involved in that would naturally ask, because are we supposed to go ahead or not? And I'm not sure I could tell them based on the current draft.

[Unidentified Committee Member]: So I listened to the testimony with Chief Burke and Director Brickell.

[Unidentified Committee Member]: They had some issues with the policy, and then there was the alarm. Did you

[Unidentified Committee Member]: guys ever take any more testimony on Mr.

[Rep. Martin LaLonde (Chair)]: Brickell sent, I thought, I'll double check I to make

[Unidentified Committee Member]: took my notes at home, I don't have them with me.

[Rep. Martin LaLonde (Chair)]: See if I he sent that to everybody. I thought you sent something to the committee, but if not, I'll have it posted.

[Unidentified Committee Member]: Can I share where I landed on that? I think he landed with the recommendation of having the law enforcement review board come up with a model policy or review this piece of it. And so that's what I'm hearing you, chair, say that just stick with that piece. And if we just had that piece and none of this other stuff, we wouldn't need the severability. Just would be That's what I did.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: It'd be

[Unidentified Committee Member]: like, strike all of this in just that recommendation.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Right.

[Rep. Martin LaLonde (Chair)]: So I thought that he had sent this to the committee, but he had sent it just to me and a couple other people. And I'm gonna post what, Chris, because I asked him to send written testimony.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Okay, yeah.

[Rep. Martin LaLonde (Chair)]: It would be on the Yeah.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: I mean, it is possible that even if the bill didn't address federal officers, that you could still have a situation where a state or local officer or department sought to enjoin it. I can't say whether they would or not.

[Unidentified Committee Member]: That's pretty any law, right? That we

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: Right, so what I'm saying is that just So if there's going to be like a civil penalty applicable to anybody, an individually charged officer or an agency on behalf of its officers arguably, state or local, could challenge it on whatever grounds they think they have merit. I don't know, ultimately, it's hard to say what that might be. But so the question about what the CJC does, if a superior court issues a temporary injunction, let's say, on behalf of, let's say, I heard Windsor earlier, Windsor, sheriff's department files a lawsuit hypothetically, the question is still called what does the CJC do? If what you're saying is it's only a policy and not a civil sanction, then I think that issue that I'm raising doesn't really apply anymore. But I

[Unidentified Committee Member]: think that's what we need to decide as a committee, that seems like that would be the most straightforward. I

[Unidentified Committee Member (possibly the Clerk)]: was left with, yes, the model policy, but also possibility that each department just be required to have some sort of policy within a certain amount of time, because every department was so different and had different requirements that there needed to be some sort of flexibility to have a policy. And unlike a mandated model policy from the academy that you have to adopt, it may not cover your department.

[Rep. Martin LaLonde (Chair)]: I think generally, and I know we have some other policies like that, which is there's a model policy, and if individual agency doesn't adopt their own policy, then the model policy becomes your policy. So I mean, it's kind of along those lines.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: In 2023, the legislature added further enforcement mechanism, which is that if there's a state mandated policy, if you don't adopt it and follow it, then the consequence could be losing access to the police academy and all the services that goes along. That includes recertification and so forth. So because everyone can just say, we adopt the model policy, it doesn't mean you apply it, right? So that was added in 2023. So there is a further consequence, and that would apply to not just the fair and impartial policing policy, which much less well known, there's a statewide body worn camera policy, for example, and I think it's use of force policy also but that's statewide. And so that's kind of a that's the existing mechanism that would apply to any any agency where you have to follow the the CTC.

[Unidentified Committee Member (possibly the Clerk)]: Yeah. I'm under the belief that, you know, any any model policy violations to the academy by an officer to class b violation. And and from the testimony we got the other day, it would seem more like if we had a policy, it would be handled disciplinary action through the department itself. It seems to make more sense to me, especially with just the diversity of the jobs out there, what people are wearing. To me, it doesn't sound We know it's not a problem with Vermont law enforcement. We haven't had this complaint before. So coming off.

[Rep. Martin LaLonde (Chair)]: So I suggest that we look at some policy language, ones that we're talking about. I don't think necessary going the direction of fair and partial policing policy necessarily, at least initially to take a look at. And I know I did schedule Chief Burke on behalf of rehab to testify tomorrow in case that's where we're ending up. That's what I would suggest is that we take a look at that tomorrow and we can still further discuss if that's the route we wanna go or if we wanna roll the dice on whether this is constitutional or not. So we'll do that tomorrow afternoon.

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: You kind of know where I am already, but.

[Rep. Martin LaLonde (Chair)]: I didn't make some transcription, sorry. Alright, so anything else for moving on this? So we're gonna, we have Rick coming at two to walk through two zero nine, a an amendment, and then we have a few witnesses after that. Hopefully, you can stick around a little bit to I think I'm on

[Julio Thompson (Assistant Attorney General, Co-Director, Civil Rights Unit)]: the list. Still want me.

[Rep. Martin LaLonde (Chair)]: I should But we'll we'll take a break until 02:00.