Vermont Legislature SmartTranscripts:

[Senator Nader Hashim (Chair)]: Hi. We're back at Senate Judiciary, January 20. We're now picking up S-two zero eight for discussion and markup, and I believe some updates as well from life counsel. So, I'm sorry to the courts.

[Hillary Chittenden (Legislative Counsel)]: Good morning, Sophie Tzedak, Equal Education Council, and Hillary Chittenden, Sponsorship Council. So, when we had met last time to discuss the bill, we had talked about, there are two bills that have, the wants to be looking at in terms of anti masking bills, and one is in California and one is in New York. And the bill S two zero eight won't work closely tracks the New York version, but the California bill went into law last year, was signed by Governor Newsom, and became effective or was scheduled to go into effect January 1. And I had mentioned last time I was here that there was a hearing scheduled for January 12. I had time for another opportunity to give you an update on the status of the case. So I think there was a question last time about whether the California law had gone to go back on January 1. And because of the federal government challenge, the parties agreed not to enforce it until the court rules on the preliminary injunction motion. So it is not currently being enforced. The court held a hearing last Wednesday, and the parties accept a ruling at some point, I think, in the next three or four weeks, but it doesn't need to be. So that decision would provide the most recent, simpler, on point judicial opinion on some of the supremacy clause immunity issues. So something to look out for and on on.

[Senator Nader Hashim (Chair)]: And just to refresh the committee's memory, generally speaking, can you highlight what the main issues were in in them seeking the injunction and their lawsuit?

[Hillary Chittenden (Legislative Counsel)]: So as professor Bowman posted mentioned last week, one of the core issues from a federal perspective is supremacy clause immunity, both intergovernmental immunity, and this idea of discriminating against federal government actors. So the California bill does not apply to all law enforcement actors operating in California. It, for whatever reason, excludes California state police officers. So one of the strong challenges in the federal case challenging the California law is the idea that it is discriminating against federal law enforcement officers and treating them differently than at least California state officers. The other issue, the other aspect of the privacy of cause immunity would be a similar analysis to some of the counts as in. So

[Senator Nader Hashim (Chair)]: and I'll ask senator also because and then senator That question was my question? Okay. That's the answer.

[Senator Robert Norris (Vice Chair)]: So, Hillary, you may have mentioned it. What's the status of the New York

[Senator Philip Baruth (Member)]: bill right now?

[Hillary Chittenden (Legislative Counsel)]: The New York bill isn't lost yet. It's still in committee.

[Senator Robert Norris (Vice Chair)]: In New York. And how similar is that bill? Does this term do not work?

[Hillary Chittenden (Legislative Counsel)]: So I had passed out in Chalk last time that had California bill, the New York bill, and s two zero eight. I can certainly send you another copy on that. So

[Senator Philip Baruth (Member)]: this is, I think, implied by what you said, but so the discrimination is would not apply to this bill or seemingly would not apply to this bill because it's coming all wrong. Wasn't.

[Senator Nader Hashim (Chair)]: And if we were to do something along the lines of what was mentioned by commissioner Morrison where where we go the route of the law enforcement advisory board creating their own set of rules for state local law enforcement and then us creating our own separate statute for federal law enforcement. Is that something that runs the risk of of of a lawsuit?

[Hillary Chittenden (Legislative Counsel)]: I wouldn't say that that would be problematic. Think it would make you want to just treat all the law enforcement officers the same, so it might be possible to have a statute that would cover all state, local, and federal law enforcement officers, and then separately have the Law Enforcement Advisory Board and Criminal Justice Council develop policies for statewide policies.

[Senator Nader Hashim (Chair)]: Also just to clarify, I don't I don't wanna misrepresent what Commission Morrison said. I don't think she explicitly said that we should create something for federal law enforcement, but that's so I think she was just referring to a state local going to the LEAD to verify that.

[Hillary Chittenden (Legislative Counsel)]: I think the best of all, we've heard the same. We testified immediately after commissioner Lawson, and and she emphasized in that testimony that you should do all three together and not separate the matter.

[Senator Nader Hashim (Chair)]: Mandy, anything else for council when we talk further about what if anything, wanna change? So Who wants to go first on their thoughts on this bill in general? I will get some ideas out there. There's a couple of pieces that I want to change as well. As And an approved so if

[Senator Philip Baruth (Member)]: I could jump to page three, and I can I think I flagged this first time around? I fully confess to being a little paranoid about the way the federal government may respond. I think in general, they they have tended to take any challenge to their authority and respond in in ways that are often completely disingenuous. For instance, declaring a fentanyl related emergency as a pretext to send officers into random looped cities around the country. So when I look at page three, line 14, there's an exception for law enforcement officers who participate in active undercover drug related operations or assignments. They may use personal disguise when necessary. I'm just wondering the freedom with which the federal government declares, you know, let's say, fentanyl related emergencies as a broad brush way to allow different uses of power, do you think that language is sufficiently tight? I understand the intent is to protect individual drug related operations. Could it be wronged out at the federal level by them saying all ICE agents, all Customs and Border Protection, all federal law enforcement officers are operating essentially undercover in drug operations.

[Hillary Chittenden (Legislative Counsel)]: The federal government could argue whatever the chief would argue. In terms of tightening up the language, I mean, one possibility might be having some some language regardless if there's some, you know, judicial approval or something for an officer to be undercover. I don't have burdens in that would be there or not for enforcement officers. Only I I know there was also concern just around undercover being related specifically to drug related operations. Was concern that with Janelle. Well,

[Senator Philip Baruth (Member)]: I yeah. I would I'm not seeking judicial review. I I think we would probably hear from law enforcement that that would be burdensome. But but as I look through the list of exceptions, that's the one that seems to me most likely to be tied open and rendered, you know, an excuse to get rid of the whole bill, please. So I I will think a little more about that.

[Senator Nader Hashim (Chair)]: I think in response to the think there is and we can hear from law enforcement to see if this is doable, but making it so that law enforcement officers who can participate in the Vermont Drug Task Force, that, I think, would narrow it without discriminating against federal government because there are you know, there is the FBI and the DEA and DTF that, you know, have their embedded people with the Vermont Drug Pathway. So there's there's interstate cooperation there, and the task force is a broad and sweeping group that includes, you know, every officer.

[Senator Philip Baruth (Member)]: That's all I can make.

[Senator Nader Hashim (Chair)]: Yeah. I think we can put a note there, and I'll reach out to get some time to on it.

[Senator Robert Norris (Vice Chair)]: So I got a quick question. So while we're on the same page here, under d line seven eight. Did we ever come up with a process for this and where if it's been the specifies some that's technical about the world,

[Senator Philip Baruth (Member)]: we can come up with

[Senator Robert Norris (Vice Chair)]: a solution. Would that be it,

[Senator Nader Hashim (Chair)]: or Yeah. That's that's on my list of things to talk to and talk about here. Things that's yeah. I think we can, since we're already there, just talk about that now. Think that the, what what was your question? Did we figure out the process?

[Senator Robert Norris (Vice Chair)]: Should yeah. The process. Because she had said that now, I don't think these representative acts or a double pitting unless a law enforcement officer go to another law enforcement officer, you have the service that could say, here you go. Apple sees more. Thought that'll work out at the local versus special levels as far as,

[Senator Philip Baruth (Member)]: you know, you and people are

[Senator Robert Norris (Vice Chair)]: gonna work together and if you're showing any issue, something that was concerned and social testing.

[Senator Nader Hashim (Chair)]: Did ledge counsel on a responder did send a vote?

[Hillary Chittenden (Legislative Counsel)]: Just wanted to add something was that I did receive clarification from the judiciary team, obviously found more familiar than I am with with the boards, that if you want to make it a civil a civil violation, we would need to change the language that by pulling in a fine, that makes it a criminal issue. I know that had been an issue whether you wanted it to be civil or criminal, but if you wanted to be civil, then we would need to just change the language to call it a civil violation or a fine.

[Senator Nader Hashim (Chair)]: Yeah. At moment, think civil is fine. I know there's been some stuff that still have to hash out there. But, yeah, senator Routine.

[Hillary Chittenden (Legislative Counsel)]: I seem to recall, and I think it was the constitutional law professor of making the case that actually a criminal body would be more defensible. But I may be misremembering, but I seem to recall because I had asked a question about that. Or maybe that was a solution to the civil binding pitting law enforcement against law enforcement.

[Senator Nader Hashim (Chair)]: The notes that I have, I see that civil actions would be considered the same as criminal actions. I think I challenged.

[Hillary Chittenden (Legislative Counsel)]: This the notes that I had for that section simply say criminal plus. Yeah. I'll like, I'll reach out to the the professor, but I feel like I recall her saying something along the lines of that being somewhat more defensible, but let me reach out right now. What what Erin Cooper saying was that the thought that you could avoid creating a sort of federal issue around it because it was criminal and maybe going down the civil party special was that you know the understanding I had was that it it wouldn't make a difference like the federal government would still you know we'd have the same arguments around criminal penalties around civil penalty.

[Senator Robert Norris (Vice Chair)]: But even if it's civil, my question is, the enforcement portion of it? How does that how does that how does that principle?

[Hillary Chittenden (Legislative Counsel)]: Right. I think that's one of the challenges is how is it gonna be enforced in that federal law enforcement policies? No. I mean,

[Senator Nader Hashim (Chair)]: my thought is it would be enforced the same way underage drinking ticket or any ticket would be enforced. You know, the officers will have discretion as to, you know, whether they wanna issue a warning or if they're going to, you know, very aggressively enforce this. You know, the same way they have discretion if they wanna bring somebody in traffic. They could be going to buy over or not even bother going to the first place. So I think that it leaves a lot of room for discretion for for the officers who may enforce this. And I'm sure there's different perspectives on whether that's good or bad. But I guess that's just my general response to that. Senator Mattos? Yeah. I'm just gonna give you,

[Senator Christopher Mattos (Clerk)]: process wise, how this works. So you have, let's say, this case, have ICE going in and they have facial coverings.

[Senator Philip Baruth (Member)]: Who writes the ticket? Who who enforces this stuff?

[Senator Nader Hashim (Chair)]: Would be a state, local, or Definitely.

[Senator Philip Baruth (Member)]: Yeah. What's outside? What's just that? Well

[Senator Nader Hashim (Chair)]: I mean, if you're saying other plan. That's something. Somebody's speeding on the interstate. There's no cops there.

[Senator Philip Baruth (Member)]: But the way these things have tended to own other states, they draw protesters, they draw crowds, they draw local law enforcement who are there as well as ICE agents. That's the situation where I could see this coming

[Senator Nader Hashim (Chair)]: to play,

[Senator Philip Baruth (Member)]: where, you know, there is public expectation that this word has become law, which is enforced by local tribalist organ.

[Hillary Chittenden (Legislative Counsel)]: The other thing I'd circle is to deal with the clarifier of the advocacy aspect and that potential gain to narrow.

[Senator Nader Hashim (Chair)]: Yeah. I was I was about to get to that there. Pat, one piece that, at least for now, that I wanna strike out just to reduce complication based on what we've heard from mister Morrison and Rebecca Perkel is on line eighteen and nineteen. The officer needing their professional home licensure with certifications. Given that traffic tickets generally don't make it to the, to the misconduct, hearing or the misconduct level. But I do think that there could be a component where we require the LEAB to come up with a statewide policy to address potential licensure issues, misconduct issues because that way we still are able to create something that's enforceable sooner rather than later but also there's some it was raised that there's an issue regarding the how they would address licensure issues. I think leaving that specific component in their area makes sense for them to not to work on.

[Hillary Chittenden (Legislative Counsel)]: Yeah. Not really. I I think that this type of behavior should be considered the grounds for response, obviously.

[Senator Nader Hashim (Chair)]: Yeah. I don't necessarily disagree depending on what the context of the of the offense is, but I think that traffic or the equivalent the the civil fines, those as we heard from the director of hotels, don't generally cause the initiation of a misconduct review for the officer. And so I think that requiring them to create a statewide policy, which it sounds like is what they're doing, creating a statewide policy to address that, then I think that gets to the part of the issue over the misconduct at least.

[Hillary Chittenden (Legislative Counsel)]: I guess I feel sort of the opposite, that because if we stay with the civil penalty it would have rise to the level of misconduct, that's all the more reason why we should put it in here, that we should consider it as such.

[Senator Nader Hashim (Chair)]: Yes, and I think that they probably have I mean, it's the issue is if you don't have the knowledge of how the missing conduct process starts, how they do their investigations, how it gets initiated so often. Think that is probably more in suggesting test model. But, yeah, that's that's my initial opinion.

[Senator Philip Baruth (Member)]: Am I right that as currently written, this is a criminal penalty?

[Senator Nader Hashim (Chair)]: No. It's a civil offense. Okay. If it were criminal, then it would initiate a misconduct.

[Hillary Chittenden (Legislative Counsel)]: Written as criminal, but I think the impact is for civil. We could see exchange that I get around with one fine.

[Senator Philip Baruth (Member)]: That was my second question. Have we decided to make it civil? That's how we started off. And I'm hearing Sophie saying it's now criminal.

[Hillary Chittenden (Legislative Counsel)]: Well, through just through because I didn't know. But if you use the word fine, then it's then it's considered criminal. If you want it to be civil, then you have to say it's a civil penalty. Yes. So it's more just the language thing, but I understood the intent to be that it'd be civil. It was just the current language within it of fine.

[Senator Philip Baruth (Member)]: Just for what it's worth, I like the way it's drafted now. My worry about this is that ICE has been exceptionally well funded by the big beautiful bill. They're offering $100,000 to agents and a $40,000 sign of bonus, which is asked from Namath. And so I imagine that if we're talking about fines and hundreds of dollars, it wouldn't have a lot of impact. So I personally, I prefer the way it's written rather than get it into a civil penalty and also the the change around directing a statewide policy written later. I I like this language better in both cases. So,

[Senator Nader Hashim (Chair)]: just so I'm understanding the preference for me is to keep it a criminal offense? Yes.

[Hillary Chittenden (Legislative Counsel)]: And, Vyhry Sheen, one note on what you and Sundar perhaps were just talking about. The statute lays out the kinds of misconduct that trigger the Vermont Criminal Justice Council to undertake proceedings. So director Burkow had mentioned that one of them is a felony or certain misdemeanors. The second one is locally failing to comply with a state required policy. Okay. So to your point, if the LEAB were to put forward a policy, noncompliance with that state required policy would then become misconduct within the meaning of a statute.

[Senator Nader Hashim (Chair)]: Got it. So then can we just cross reference that in this? Yes. Yeah. Okay.

[Hillary Chittenden (Legislative Counsel)]: Whether an explicit cross reference is necessary or not, we'll look into, but affecting that policy change would have that impact based on the other question.

[Senator Nader Hashim (Chair)]: Okay. Then, I mean, if if if a cross reference is helpful, you know, I I think adding that, just saying they'll lose their professional licensure certification. I think making that broad representative will initiate the misconduct proceeding for investigation based on what you had just described. I think that could be a good start.

[Hillary Chittenden (Legislative Counsel)]: That's 20 VSA twenty four zero one.

[Senator Nader Hashim (Chair)]: I think I saw some files first.

[Senator Christopher Mattos (Clerk)]: Just continuing down this line, doesn't that kind of run-in when Senator Senator Commissioner Morrison was in. She talked about, you know, having that path to the LEV and the Justice Council. Wouldn't this put us back on that track of being on the same road but two different lanes? Because one would be criminal, and it would kinda over the arc over what the LEV and LEAB, the justice council would be doing.

[Senator Nader Hashim (Chair)]: I so I I think that the potential cross reference is not just for crimes, but also includes state policies. So potentially, like a traffic ticket or in this case, this ticket, if I'm understanding your question correctly.

[Senator Robert Norris (Vice Chair)]: But if it's criminal, it wouldn't then go to

[Senator Nader Hashim (Chair)]: the courts. It wouldn't go to the Right. It would it would go to the courts. I mean, it could it would also likely initiate a misconduct investigation.

[Senator Christopher Mattos (Clerk)]: So I'm curious how that that interplay works when you have two different paths on the same road.

[Hillary Chittenden (Legislative Counsel)]: The reality is this would point to the state and local workforce analysis. This isn't going to impact

[Senator Nader Hashim (Chair)]: Right.

[Senator Robert Norris (Vice Chair)]: Well, think it will through it's nice that we're all sitting in this nice, warm little office here and talking words on paper, the comparison of writing a ticket to a 17 year old possessing alcohol or consuming alcohol is not the same as asking of a law enforcement officer to either issue a citation or a ticket to one of their federal partners. My concern is that being on the Canadian border of Bird, have worked extensive hours with their federal partners as to, okay, so you just arrested one of our guys. We depend upon these individuals, these professionals to respond to our case and backup purposes. I'm just wondering if we're going down a path here that we may regret.

[Senator Philip Baruth (Member)]: It's a fair point. I would just respond by saying, in my opinion, we're not the ones who are straining that relationship. It's the federal government that is straining the resources and patients of all their partners across the country. So I think your caution is well taken, but I think in large part it's for Christine Holmes and President Trump who are deliberately making customs and border protection and ICE, you know, they're they're forcing them to become irritants in communities to produce, in my opinion, a certain level of chaos that will then mandate increased force. So now we're talking about, you know, active duty military being sent to Minneapolis. That's not the fault of local officials who are trying to preserve their authority. If I might, Mr. Chair, I have a question about page two, line 14. I like this language. I'm wondering if it means what I think it means. The law enforcement officer shall not wear any mask. That's what we've been talking about. Poor personal disguise. And I think ICE, in particular, has a documented history of adopting local law enforcement police identification when they are not local police. Would that trigger this piece, the idea of personal disguise, if they are locally representing what agents are they representing?

[Hillary Chittenden (Legislative Counsel)]: Certainly, because I think the other piece is the paragraph one, C1, that line is really, again, going back to the identification of the officer. So, you know, making sure that they're identified. And, again, there was testimony around including his agency, is not currently included in this bill. Mhmm. But being clear what agency you're from, we think it much harder for

[Senator Robert Norris (Vice Chair)]: Yeah.

[Hillary Chittenden (Legislative Counsel)]: A nice officer to protect that that would have, you know, will have some police or whatever.

[Senator Nader Hashim (Chair)]: Great. There's also one additional piece to that. I can't find this here, but on line 50, I believe this came from commissioner Morrison, which was instead of interacting with the public, make it so that it is in the performance of their duties. Leave us. Are

[Senator Robert Norris (Vice Chair)]: you on

[Senator Philip Baruth (Member)]: two? Yeah. Page two. I'm 14.

[Senator Nader Hashim (Chair)]: Yeah. 14 is the 50. Anybody else remember her saying that?

[Hillary Chittenden (Legislative Counsel)]: It does say that. It just says

[Senator Nader Hashim (Chair)]: Interacting with the public.

[Hillary Chittenden (Legislative Counsel)]: In the performance of the officers' duties. It says both. Question last. She had she had suggested adding unique radioma vaginal vaginal Yeah. About that. Yeah. Have that note, well I wrote it as call number, but, and then adding agency on line one, C1 issue. Okay. But C2 already does say I mean, guess if you strike while interacting with the public, it's broader. It would be in performance of all of their duties, whether or not they're interacting with the public.

[Senator Nader Hashim (Chair)]: Alright. Perhaps I'm just I just understand about it. So, yeah, let's scoot back up to section one. Adding name, badge number, or radio

[Hillary Chittenden (Legislative Counsel)]: number, whatever. The radio number. And then the agency. I also think it shouldn't be or, it should be the end. I think it should be the officer's name, their unique identifying number, and agency.

[Senator Nader Hashim (Chair)]: Yeah, I don't know. I mean, I think badge numbers change. You know, it's there are radio numbers as well, and it's I feel like name and agency is the most useful way to go about it. But, yeah, that's my ethnicity.

[Hillary Chittenden (Legislative Counsel)]: Yeah, I think that that's, I'm happy to have that conversation, and I think I could be swayed to review it properly, want to gather a little bit of my information. But as it reads now, it's named four. And I don't think, like so I guess it could be named four, but for a unique number and agency, but I don't want it to be just one of

[Senator Philip Baruth (Member)]: those three things, if that makes sense. Okay.

[Senator Nader Hashim (Chair)]: Do have any thoughts on how we clarify this line? +1 213.

[Hillary Chittenden (Legislative Counsel)]: Have any thoughts on how we might clarify this language?

[Senator Nader Hashim (Chair)]: It helped us more, Samantha, here. Yeah.

[Hillary Chittenden (Legislative Counsel)]: I mean, you can have a a law enforcement officer who'll be clearly identified by a, the officer's name or the officer's unique radio or badge number on the officer's uniform, and b, the officer's agency on the officer's uniform. So they're always required to have the agency. And then, again, depending on what the principal wants to do, if they want to have a badge or name both in the first part.

[Senator Nader Hashim (Chair)]: Think that works the way you described it.

[Hillary Chittenden (Legislative Counsel)]: Are we done with that, Senator

[Senator Robert Norris (Vice Chair)]: Mattos.

[Senator Christopher Mattos (Clerk)]: Actually got one more on on that route. I remember hearing I don't know who said it, but it there was the when safe to do so language. Don't if that was federal or was that

[Hillary Chittenden (Legislative Counsel)]: Yes, that was so under federal regulations for ICE officers. They're required to identify themselves, and then there's that language around when safe to do so.

[Senator Philip Baruth (Member)]: But their argument basically is that it's not ever safe with ice because there'll be dogs and, you know, etcetera. So I I just don't think there's any good faith use of that phrase at the federal level. I think they will just argue it's ever safe if

[Senator Nader Hashim (Chair)]: it comes to the One distinguishing factor, though, is that this doesn't require verbal Right. Of a verbal identification necessarily. If you've got it on your uniform, you can say anything. It's it's my understanding.

[Senator Christopher Mattos (Clerk)]: Because I'm just thinking about how that interacts, you know, have something on the books that says one state to do so, identifying yourself. How does our state statue interact with that?

[Senator Philip Baruth (Member)]: And that's basically the question of the whole Right. So

[Hillary Chittenden (Legislative Counsel)]: I just saw my other question, but I think in response to that, and and do correct me if I'm wrong, but my understanding is that that language is around if you're making an arrest, you need to identify yourself when it's safe to do so, and this would apply all the time. And I don't think they really interact at all because this says you need to have this displayed. And if the federal immigration officer is making an arrest, then they need to verbally identify themselves when it's safe for them to do so. That's all Yeah. The

[Senator Christopher Mattos (Clerk)]: But I think isn't that your if ICE is walking around the street, is that our issue, or is it when they're making that arrest?

[Senator Philip Baruth (Member)]: Would I would say if they're walking around mass and if they're in performance of their duties, they're in contravention of this.

[Senator Nader Hashim (Chair)]: If they're not identified.

[Hillary Chittenden (Legislative Counsel)]: But it doesn't negate the federal requirement that if they are making arrests, they say, I'm officer so and so with Immigrations and Customs Enforcement. I'm, you know, making this arrest.

[Senator Christopher Mattos (Clerk)]: Like, think I'm thinking about how, do the two zero nine's written about safe spaces, and you're on your way somewhere if there's an ICE agent or whoever on their way to go somewhere to arrest. Is it when they'd seem to do so that they have going downplay? I guess that's just why

[Senator Philip Baruth (Member)]: I'm Well, the vast piece has interacted with the public in performance of their duties, but peace of hope just as clearly identified. So I take that to me. If you look out on the law and there's an ICE agent standing there doing something about their mask, then this comes into play. Right? What if they're in the process of an arrest? Gonna gonna be going through I I don't this to me doesn't hinge on whether they're going to aggress. In just sense, they shall be clearly identified. So when they they leave the barracks, they should be clearly identified.

[Senator Christopher Mattos (Clerk)]: But then that have that inner place with the federal stat too, where it's when it's safe to do so in the process of an arrest. But if they're Prohibit them. Right? Well, if they're on the way to do it, is what I'm getting at. Like, at what point is the arrest of

[Senator Philip Baruth (Member)]: on talk? I'm just speaking to ICE agents in the community, Mattos, and and the the terror that that is causing. And I I would say deliberate fear of terror that is involved taking. And this is meant, as I read it, to push back not just on that specific moment where they're forcing their way into a home or a car, but they're out walking around. And and that walking around is meant to habituate Americans to law enforcement agents on their streets. So I think it's written broadly and should be, at least from my opinion.

[Hillary Chittenden (Legislative Counsel)]: One clarification on the federal language. It's a federal regulation and not a statute, which is important. So it's not the status of a federal statute, even potentially conflicting with the state statute. And the language is at the time of the arrest. At the time. The designated immigration officer shall, as soon as it is practical, be unsafe to do so, identify himself or herself as an immigration officer who's authorized to have a state of arrest. So that may help us.

[Senator Christopher Mattos (Clerk)]: Yeah, you know, I'm all, like, just trying to figure out a process of how this would actually work, is what I'm trying do So

[Hillary Chittenden (Legislative Counsel)]: we were discussing that before, because it was coming up with this supremacy clause of the So the test for that is really asking, you know, is there a direct conflict? And right now there's no federal statute or officially an adequate policy that explicitly authorizes or requires masking by federal officers. And then officials of the Department of Homeland Security have publicly stated it's up to the individual officers whether they want to or not. And so, at the federal level, there's the National Defence Authorisation Act, which we talked about last time, which I did do a bit more of a deep dive on that, which was passed in 2020, went into effect in 2021, and that was after all the George Floyd protests, and that requires federal law enforcement to visibly display their identity and the name of their federal agency when responding to a civil disturbance. And we'd asked about a civil disturbance, but that is not defined in the statute. There is some Department of Defense sort of definitions of civil disturbance. And then the other piece was the IC units that are required by law to identify themselves at the time of an arrest, and that's, again, that's no regulation of statute. So there's no direct conflict between what this bill proposed at at federal court.

[Senator Nader Hashim (Chair)]: Whole weather question.

[Hillary Chittenden (Legislative Counsel)]: The folkweather question, and I'm not entirely sure how he'll wordsmith that, but the other pieces that I remember and I have notes on was the medical grade mask that a surgical being took on. Yes. I also recall Commissioner Morrison suggesting we add an intense section or change the language to be very explicit what we are trying to prevent. Yep. And the other suggestion I would have would be to take it effective on passage not July 1. I

[Senator Nader Hashim (Chair)]: think the I mean, my my thoughts on that regarding section subsection A and subsection B, medical grade mask and the surgical versus the N95 respirator. He's got an airborne diseases. I feel like if we have b, we don't really need a. It is the whole purpose of b. The whole purpose of wearing those masks is

[Senator Philip Baruth (Member)]: generally so that you're not spreading diseases.

[Hillary Chittenden (Legislative Counsel)]: I might suggest that it perhaps get changed to read an N95 respirator or medical grade surgical mask with the intent to prevent the transmission of airborne diseases.

[Senator Philip Baruth (Member)]: I'm not quite sure how I'm gonna

[Senator Robert Norris (Vice Chair)]: Just to follow-up on the question, I wanna make this statement upon passage when the criminal justice counselors say they don't have a policy. No. It's not on passage.

[Senator Nader Hashim (Chair)]: She Well, no.

[Hillary Chittenden (Legislative Counsel)]: I think it's just gonna be on passage. I think the terror that's happening can't wait until July to be solved.

[Senator Philip Baruth (Member)]: Ordinarily, I would agree. I just I think this probably wouldn't get signed if it does by the governor before May. So I think it's about a month to to bring into play this. So I don't I don't think that's a long that's a long time. That's a relatively short time for them to kinda get their voice to their voice. I can support the way it's really.

[Hillary Chittenden (Legislative Counsel)]: We also have a later date for passage of the policy because I know there was certainly around it being anywhere from six to nine months. It sounded right. So you could have the the law go into effect that the policy itself, the statewide policy would go into effect 01/01/2007, one of the previous time. I could certainly support that. I think, I imagine, given that we've heard from the criminal justice council for already a conversation about this policy that they can communicate this information while the bill is still in the process. And I just think the level of fear and concern really necessitates a is like of a response as we check that.

[Senator Nader Hashim (Chair)]: What does everybody think of the that sort of timeline regarding the the two effective dates? Sure.

[Senator Christopher Mattos (Clerk)]: So with the LEAB then?

[Senator Nader Hashim (Chair)]: LEAB would be later on so that they can develop their policy regarding any misconduct. Yeah. And the enforcement provision of the thousand dollar traffic ticket would be a long passage at that time.

[Senator Robert Norris (Vice Chair)]: Okay. So back to your point, sorry.

[Senator Christopher Mattos (Clerk)]: Back to your point, Did you just wanna combine A and B? Is that what I was hearing?

[Hillary Chittenden (Legislative Counsel)]: Oh, so I think that basic. Okay. Basically, it's a combination of A and B and a shift from design to design. And I think that was all of my notes on things that would change. The one point that I don't think we really talked about that I do think is important is that in many ways, I I've now been made aware of three different instances where non law enforcement has masked impersonated law enforcement to commit crimes. And so this bill, to me, also protects law enforcement from being impersonated because they're clearly identified as law enforcement.

[Senator Nader Hashim (Chair)]: So regarding, It's just a

[Hillary Chittenden (Legislative Counsel)]: There's nothing that needs to change. It's just a statement.

[Senator Nader Hashim (Chair)]: Regarding the medical grade mask and the N95 respirator, I could get behind me adding language that says, an N95 respirator or a medical grade mask with the intent or worn with the intent to prevent the transmission of careborne diseases. I think that clarifies a little bit more.

[Senator Philip Baruth (Member)]: Don't know how we'd ever proven that, but, I mean, I I don't see any problem with putting it in. But, basically, the language we have now is just if you wear these things, if we get into what being in the. I don't know. It just doesn't seem necessary. But if we make it

[Senator Robert Norris (Vice Chair)]: a criminal statute, all we have to prove intent and or knowing it provides or charge someone from immigrants. The left was something proven. If it

[Senator Nader Hashim (Chair)]: was criminal, then, yeah, you would have the an element of is civil though.

[Senator Philip Baruth (Member)]: I've made that determination. I'm sorry. Well, yeah. We haven't heard the different discussions on that. We've come to that a couple of times. We haven't voted on that. Yeah.

[Hillary Chittenden (Legislative Counsel)]: Okay. Cheerios, to your point about difficulty proving intent. And I think a lot of times when we put things in language, generally, people will follow it because it says it. And when it just reads that there's an exception for these masks if that are designed to or for any reason, including Mhmm. You know, masking or disguising yourself. And I think that when we get to the sort of LEAB portion where there's mental misconduct, they would view the investigation too. So I I think the language is important, and I think most good actors are gonna follow it as it's written because that's what it says. I'm actually saying all of actors are going to read this.

[Senator Nader Hashim (Chair)]: Yeah. These changes aren't necessarily what we need to find out about. It's just trying to move along with this and we can get some new language to think on it and come back to the same discussion. I think that one thing that appears up in the air is whether or not it's going to be criminal or civilians. That still seems to have some uncertainty.

[Hillary Chittenden (Legislative Counsel)]: And then I think that's just some language changes to shore up some of the exceptions.

[Senator Nader Hashim (Chair)]: Yeah. There is the on page three, there's the cold weather exception. I mean, there are plenty of instances where there's not necessarily a declared weather emergency but you know, if you're out search and rescue looking for a lot piker in January, probably going to want to wear a mask but at the same time, you know what, I don't want to create an exception where somebody says, you know, Oh yeah, it's 55 degrees down, it's cold, so I want to wear a mask. So that's, I feel like there has to be some middle ground there. Yeah.

[Senator Philip Baruth (Member)]: I

[Hillary Chittenden (Legislative Counsel)]: do. It's actually for Senator Baruth. You had brought up the I'm having a hard time finding the thing you brought up about thunder cover.

[Senator Philip Baruth (Member)]: The page three, nine, 14. You.

[Hillary Chittenden (Legislative Counsel)]: Because I think that you had suggested you had suggested we change it. You had a way to change it. It was operated through

[Senator Nader Hashim (Chair)]: Probamt throat test, please. Got you.

[Hillary Chittenden (Legislative Counsel)]: I'm just trying to make notes for myself.

[Senator Nader Hashim (Chair)]: And we can get testimony from one of them regarding whether that, making that bank allows them to continue doing their job without necessarily granting this broad, exception to address some of these concerns. For Legis Council, I'm wondering if you have any thoughts on how to read word lines seven and eight to make it slightly more broad but not too broad to a point where anybody any any officers wearing masks, if it happens to be below 70?

[Hillary Chittenden (Legislative Counsel)]: I could we use the same language as is used for cold weather exceptions for, like, housing? So, you know, there's a state maybe you don't, but there's a state that could look at. I I wonder if we could use that same language because we have said in instance that the cold weather exception applies to get people sheltered. Mhmm. And then also maybe add in some stuff about, like, length of like, search across you in length of time. But that's not as bad as a declared weather emergency if but it is or it doesn't it's not the same.

[Senator Philip Baruth (Member)]: It's a different emergence.

[Hillary Chittenden (Legislative Counsel)]: Yes. But I think it's exactly like, there's certain temperatures where it adds the cold weather exception, and it's a lower bar than a declared weather emergency. Stefan. I had a few moments. Very stroke genius. Yep. And I said, yeah. I don't know

[Senator Nader Hashim (Chair)]: what the language sounds like. I've heard it.

[Hillary Chittenden (Legislative Counsel)]: You too, Claire. I'm and I've been here quite a long time. I don't know what we have. That's when I was in grade. That's when I remember when I was in seventh grade.

[Senator Nader Hashim (Chair)]: So you folks will be able to do some research into potential word stepping there?

[Hillary Chittenden (Legislative Counsel)]: Yes. I can certainly look at that.

[Senator Nader Hashim (Chair)]: Did anybody else have any other thoughts on the jugular side? We, let counsel, we just go back to the list of what you have for now for for those changes that you have been on? I know it's been kind of scattered, but

[Hillary Chittenden (Legislative Counsel)]: So, on page two, lines 11, meeting your team, adding in the agency, and then adding in the radio badge number. I I still have it as an or, but I know that was a discussion of whether it was shipping in hand in terms of the name and badge number of that. So that would be two part that you have to always disclose your agency, and then you can do either name or badge or your number. Okay. And then under the bottom of page three, lines nineteen twenty, bringing those a and b together as n nine five respiratory for rectal grade mask, more due prevent the transmission. There are more diseases. And so then that would change the numbers for those. So that would just we divide those with f on page three, nine, seven, and eight. We'll look into whether there's some other knife which you pay a dog for the house. And I've got comments on the other things. I've got specific changes other than getting into the penalty, deleting out the reference to the Office of Professional Life Insurance certification. And then so right now, it would say section should be fine not more than $1,000. But, again, we would need to confirm policy of officers there. If that's because it's written right now with the new criminal, we want to shift the civil that would need to change. And then on the section two at the bottom page, there really would be the disability effect on passage, then we would be adding in language around asking the LEAD to develop a policy around, you know, professional and product evaluations of this that you can then maybe giving them further times. So the other thing I had was on page three, line 14, the language around working with the gumdrop test. I saw that. Yeah. I'm not I'm I'm trying to track the conversation because it's been a little all over the place, but I thought there had been some different conversation about the the misconduct piece. I wasn't entirely sure that we had agreed to take that out.

[Senator Philip Baruth (Member)]: I thought we had deferred the question of civil and criminal, but that the chair had proposed immediate passage for the fine and then a longer timeline for statewide policy to come out of the other one.

[Senator Nader Hashim (Chair)]: To address how they would initiate misconduct investigations.

[Hillary Chittenden (Legislative Counsel)]: Yeah. I guess it also developed a statewide policy. Yeah. Okay. I guess I would just wanna be fairly clear with the language around the LEAD that the intent is that it would would trigger misplane.

[Senator Philip Baruth (Member)]: Not that they examine whether it should.

[Hillary Chittenden (Legislative Counsel)]: Right. But that they determine how to do that. Okay.

[Senator Philip Baruth (Member)]: I

[Senator Nader Hashim (Chair)]: I can Yeah. I I I think so because I I can realistically, I can't imagine that, you know, if it's I don't know. On the offices, you're gonna have a lot of discretion and I think it's gonna be big step to actually write this ticket. And so having the requirement that it will initiate misconduct investigation. Think is unreasonable, you may want to hear from Robert Norris again.

[Hillary Chittenden (Legislative Counsel)]: And this is part of why I have concerns about it being civil and not. I mean, I have a lot of concerns, but I I think well, I don't think you could give us that at a later point when we come back to that point. But I think the point you're making about it being a big step for this to be enforced gives me cause. Yep.

[Senator Nader Hashim (Chair)]: I think it would be a big step because I expect everybody's not to follow the laws. So sorry to not break

[Senator Philip Baruth (Member)]: in. Well, there is discretion. Exactly. It's any question. Profession discretion. Mean, in some ways, we're pushing back against a much larger, more powerful force. And, you know, I take comments that are made seriously that both the law enforcement officers are put in that tough spot and everything. But again, I don't think it's a situation of our creation. It's deliberately fabricated by the federal government to pass all relationships.

[Senator Nader Hashim (Chair)]: Well, I I think just have to think of criminal versus civil to be the part that we can revisit that conversation. So let's put a pin in that one for now.

[Hillary Chittenden (Legislative Counsel)]: I didn't have a couple of other notes I just wanted to check with the committee. So, I mean, this was for the testimony of Professor Paul Rinpoche was adding legislative findings.

[Senator Nader Hashim (Chair)]: Yeah, that was the last thing

[Hillary Chittenden (Legislative Counsel)]: I left. Okay. And then she had also suggested that at the bottom of page one, this talks about the general assembly for exercise power granted to Vermont by the tenth amendment, and she said that Vermont already has that regarding, so she would frame it as essentially recognizing we already have that authority. Yeah.

[Senator Nader Hashim (Chair)]: I'm I'm definitely interested in adding some additional legislative intent. I think that's somewhat more broad and subjective conversation as to, you know, rather than specific policy choices. We did get several paragraphs recently from a civil rights attorney in Brooklyn, leaving Brooklyn, that I could share with the committee, and I think I'd be willing to discuss whether or we want to move along with that. Any other thoughts on legislative and kind of general?

[Senator Philip Baruth (Member)]: I I would say I'm I'm not opposed to an attempt. I think findings the house is very enamored with findings. I just feel like every sentence of findings generates, you know, a lot more resistance than the actual provisions of the bill. Mhmm. I I like that this one goes light in that area. I agree

[Senator Nader Hashim (Chair)]: with you in the heart. I think I think in this situation with findings or intent is can be used in litigation. And so, you know, if there was intent that said, you know, got a big problem with the federal government going after them, that's obviously gonna be used in a lawsuit. But if you can't discriminate, but if we had findings that is geared more towards policing generally within our jurisdiction, within the borders of Vermont, and how we want that conducted under the Tenth Amendment. You know, I think that is an important distinction.

[Senator Philip Baruth (Member)]: Yeah. I just think the intent by who does the stance already does that.

[Senator Nader Hashim (Chair)]: I

[Hillary Chittenden (Legislative Counsel)]: wonder if, yes, so the constitutional law professor had indicated that the language as it is now does not adequately do that, and I wonder if she might be willing to kind of work with us to grab something that is narrowed. My understanding from another bill I was working on is that the Senate does rarely do findings, intensely, when they do, it is specifically sort of aimed at this type of situation where it might not have worked. And so I wonder if she might be willing to work with us to craft something that is narrow but meets the need in this instance. Because I I also had that note about five gs and intent. And I also remember Commissioner Morrison communicating somewhere in here, maybe it was in the intent section that we should be more clear about what it is we're trying to prevent. By work.

[Senator Nader Hashim (Chair)]: In regard to the legislative intent, what I can do is send this to all members of the committee and then also request to pass the way in. And the committee can look at these

[Senator Philip Baruth (Member)]: and see

[Senator Nader Hashim (Chair)]: So it changes we wanna make. I think we're revisited at the next when we had these changes. Can we visit some of the other? Sounds good. Thank you. Consulate council will, sign a time next week. Appreciate your time. You. Luck. Bye.

[Hillary Chittenden (Legislative Counsel)]: Okay. Much.