Vermont Legislature SmartTranscripts:

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: We are live. Hi. Good afternoon. We're out. Don't still be boring.

[Senator Nader Hashim (Chair)]: It is February 3. We're in Senate Judiciary. We have Sona Davis with us to talk about S2O8s, and the floor is over.

[Xusana Davis, Director, Vermont Office of Racial Equity]: Great, thank you. For the record, Susana Davis, Office of Racial Equity. I am here to express the Office of Support before S-two zero eight. We see this as an important act to ensure transparency in government. The state has taken a lot of effort over the years to promote transparent governance, and I think this is a key way to do so. We know that law enforcement officers are agents of government, municipal, county, state and federal, and as such should be bound by a higher standard that we set for those who are agents of government to be able to interact with the public. And obviously, nationally, we are experiencing what I am gonna refer to as a crisis, which our institutions, particularly some federal government agencies, behaved in ways that make people question their intent and their commitment to that transparency. So, we see S-two zero eight as an important measure that helps give people recourse in events, given that their civil liberties or other dignities are being not honored. And recognizing, of course, that there are certain circumstances that would require certain assumptions, we would be in support of those reasonable exceptions being included. I also would add here that it's often the case that exceptions to rules like these can be abused. And so being able to have recourse for how they're to be applied, what happens when they're abused or misused. I'm thinking, for example, in my time in New York, when we had similar municipal level legislation that passed, and there were certain members of the NYPD who made it their business to try to get around it, know, taping badges, switching cards, switching badges, things like that, so that you can technically say I was identified, but in practice weren't. So, now that I am implying that that would be happening in Vermont, but I do think that it would be important for any policy of its nature to be articulated really clearly and for us to have a process for how it's reviewed, whether it's through things like review of footage, review of civilian complaints, or other methods for determining whether the policy was violated, and if so, what would be done about it. The office also lends itself to atmospheres of the criminal justice council if you can't deal with some funds in any way in developing the law or policy that they're called upon to create the next bill. And otherwise, we see this as a really important measure to protect people, particularly those who tend to bear the brunt of this racial identity. Forced to include people of color, but also people with disabilities, people who may be immigrants in this country, and people who are low income, which includes a large swath of.

[Senator Nader Hashim (Chair)]: Thank you. Thank

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: you very much. Thank you.

[Senator Nader Hashim (Chair)]: Will the both of you take more? Are are you getting any more than fifteen minutes? Okay. Thank you,

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: Sounds good. I'm schedule for the testimony. So good morning. For the record, I'm Paul Daylou, assistant attorney general, attorney general's office. My colleague Julio Wisconsin will be providing a little more depth on our views on s two zero eight. The first thing I would start with is that in July, we signed on to a multistate letter with a number of other attorneys general advocating for federal legislation in this space, really believing that federal legislation would be the right answer for sure is the safety of individuals throughout the country. And so we have pushed in that direction. I think it's pretty clear to this committee that a federal solution is not forthcoming. In fact, it would appear that the federal government is the main problem. I would also say as on a policy level, we support broadly the way that law enforcement operates in general in the state and have real concerns over how law enforcement in the federal space is operating in the manner of the lines of cutting a lot of cases.

[Senator Nader Hashim (Chair)]: I suspect here I feel that we've gone through with

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: our law enforcement and recognize that a real poll that is taking certainly in other places, other countries, and have real concerns about what toll would find taking the bond that has similar actions here. Beyond that, I would say that s two zero eight sets into a space that is an open area of law. It is not a settled area of law. And, our main position on this, and, you know, for Julio for more information on this one, Is with a case largely on point in California, we believe it's important to see how that case plays out before stepping further into this area at this time. So with the open questions around the ball, that's our position. Senator Rosa, please.

[Xusana Davis, Director, Vermont Office of Racial Equity]: This might be a factor for Berberlio, but my understanding, and I wanna make sure that that's your understanding as well, that case in California has been litigated explicitly on the grounds that it is discriminatory because it only applies to the federal government. And so as I see it, this is completely different in that it is not, and it does not only apply to the federal government.

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: I would agree with the latter half of this bill is broader than the California law. The grounds on which the federal government sought to enjoin are stopping California law. Part of it is discrimination based on the fact that it didn't apply California police officers, But there are other claims around preemption and the supremacy clauses, and that would seem to be germane to the right disclosure.

[Senator Philip Baruth (Member)]: I would just note that in the discussions around the government shutdown, there is prospect perhaps of an agreement that would speak to some of this. I share the general lack of confidence that that ultimate agreement will do the right thing. But at least the news reports are indicating that Democrats in the Senate hoping to add those protections into what what would be the DHS funding bill. But I I believe this is utterly necessary because at this point, my my level of confidence in the federal government restraining itself is very. I

[Xusana Davis, Director, Vermont Office of Racial Equity]: definitely agree with mister Brook, and I also just wanted to make you aware if you weren't that this has come up as an issue with our local with some alcohol in in local police instances at all.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Fair enough. Yeah. I guess I'd be more interested in you said some of this would be germane to what this law has to such as the federal supremacy clause, much

[Senator Philip Baruth (Member)]: of something else. What issues are we looking at?

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: So that, I if you're ready, I'll I'll let Julio speak more to the to the details there. Well, I wouldn't dismiss in these details. I think the central elements of where it's long to open up what the questions may valuable for understanding before the talk. So if I may see Thank you.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Good morning, and apologies for writing. Director, Julio Thompson, attorney general's office civil rights unit. And, you know, I won't repeat too much points that I've got a link here for the committee, but I will add a couple of pieces that I think were not addressed, maybe I can clarify pieces maybe that were at least mentioned. In the California case, federal government is indeed making two arguments for unconstitutionality against the two California laws. The first argument in their briefs is that it directly regulates the government, and it's saying you can't do that. And then the second argument is that it discriminates the government because it favored, it exempts state police officers from their requirements. So both arguments have been fully briefed, and in fact discrimination was the state's, or the government's, US government's fallback argument. I think press coverage of the hearing, happened on January 14, did, I think, accurately point out that during oral argument, Schneider was focusing a lot on, or testing California on the issue of discrimination because there's a clear exemption for, say, police officers. And so that may be the source of folks that I've also heard from other, you know, other people, even in local law enforcement who are loosely following the litigation, and they think that's the only issue, and it is not. There are cases, I mean, part of the reason that it's a tough space, that there are cases where a law that applies to everyone in a state have been held to be, where in Touch's word, it also regulates federal authorities, have been found to be unconstitutional a case. For example, in the state of Virginia, at least over fifteen years ago, where Virginia's state licensing board for law enforcement had sought law enforcement or had a rule that all private investigators operating in the state of Virginia, all of them, would have to be licensed according to their regulatory standards. And at the time, the FBI the nearby Washington, D. C, had hired about 150 private investigators in Virginia to do background checks to act as private investigators. Then they had certain standards that the FBI found, the minimum standards for their investigators, and Virginia got wind of this and notified some of the individual investigators that they were gonna be subject to enforcement action because they weren't licensed. And so the FBI took the state of Virginia to court and prevailed on the notion that the state of Virginia could not substitute its judgment about what employee conduct or qualifications are over the FBI's. So that was a case involved and that was, didn't go to the US Supreme Court, went to the Fourth Circuit Court of Appeals, which affirmed the judgment for the FBI. So that's the case that lies in the other subseat where it's a rule of equal, equal application, but it does govern the conduct of federal employees as well as, you know, people who are in the state of Virginia. So I think the issues are broader than discrimination. I think it's important for the bill that has progressed thus far that it is non discriminatory, because I think that is just, a vulnerability that I think as the bill was introduced is already addressed. Some of the other issues that are going to be resolved, at least we hope resolved in the California litigation, aren't necessarily the arguments about supremacy plus the legal analysis. But because right now it's pending in front of the judge, there's a motion for preliminary injunction, the judge necessarily has to take into account evidence that's been submitted by both sides. And in support of its motion for the preliminary injunction, DHS has offered evidence, largely in the form of affidavits, about what it claims is I think an 8000% increase in criminal threats and a 1300% increase in assaults on ICE officers, which it claims correlates to the need to have officers at their own discretion for their own safety decisions to be masked. It's not clear what the judge is going to make of that. Last September in the District Court of Massachusetts, in a very different case involving university professors suing the Secretary State for First Amendment violations, did address, among other things, masked federal agents who were arresting students on campus. And there was some evidence, less different evidence, but some evidence that DHS put in there about the safety risks to ICE and CBP officers as a justification for masking or letting the officers have the discretion to mask. And in that case, the district court will get out of it, didn't find the evidence credible at all. There's different evidence that's being provided in the Central District, and that's something that we would want to see because when you're evaluating or when a committee is considering the legislature's considering exceptions or what the standard will be, it will be important to know whether a court, at least one federal court, has credited some, none, or all of the testimony about threats to officers, and if that so that may affect the language that you may want to use in the law or the bill. Turning to the language just briefly, you know, there are some things in there I think gives, puts headwinds, or I should say avoids headwinds, for example. Unlike the California law, there's no criminal sanction. There's a whole different area of case law that's very unfavorable to states when they impose criminal penalties for federal officers who are not otherwise violating federal law. And so I think know, that the bill, again, I think, thus far, and and from what we've seen of events, it has avoided another pinfall.

[Senator Nader Hashim (Chair)]: So Julio, just to respond to that, there was a new draft that we haven't officially been presented with, which does create a sort of structure for the event. First, that's being taken, the second event being another ticket with an increased fine, the third event being, I think, with a thousand dollars misdemeanor. So do you have thoughts on

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: You know, again, I'd have to see I think we have to see the language, and and and I think, again, the outcome of that that makes the California case all the more important to follow because that's also a misdemeanor offense. Because it could because there can be cases where officers are masked and engaging in unlawful acts, which, you know, might be viewed as part of one of the same offense. For example, there is a federal civil rights statute section nineteen eighty five that makes it a crime to conspire to wear a a disguise in order to deprive people about civil rights. And it really was related to the Haitians facts in the days where federal law was addressing the Kukon's claim, as you can imagine.

[Senator Nader Hashim (Chair)]: Senator Norris and then Senator Baruth will have a question.

[Senator Philip Baruth (Member)]: Oh, you touched on Yuga.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: In terms of other languages, other comments that I think we can offer now to the committee, and I think and and we keep getting additional information that just keeps coming in and sometimes daily or receive something today from the state of Maryland, for example, I didn't forget I the Maryland bill from their attorney general's office. But I think there was written testimony or a statement that was provided last week by an attorney, a private civil rights attorney that pointed out or he perceived, and I think I shared the perception that the exception for undercover operations seemed to be limited only to drug undercover operations. And I think just point out to the committee, I think it's hard to point out by others, is that there are other, you know, very legitimate undercover operations that don't involve narcotics, firearms, and human trafficking is one of them. Our office, our Internet Crimes Against Children task force, our sworn officers, use concealment in order to track and make safe arrest of people who are either trafficking children for children's sexual abuse materials or or are selling it to the assembly.

[Senator Philip Baruth (Member)]: Is concealment by way of masking the face, or is it concealment by infersonating an unrelated child on prominence?

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Could be both in terms of in terms of making the arrest because some it's a long term person up here. We have a very talented head of that task force in our office, Matt Ramsey, probably not before. But some of the concealment yeah. Some concealment is done just by text and impersonation, but there are also interactions online, obviously, with the prevalence of video where people masquerading, you know, pretending undercover to be interested in buying that word to a person. They may be speaking to an informant. And then when there's an arrest, our task force is not large, To have the ability to mask and be able to conceal the identity by covering it as opposed to, like, a beard or whisper and same kind of thing. So it's really it's really both. They use both forms. That's true

[Senator Philip Baruth (Member)]: for You're saying when they ultimately make the arrest, they mask

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: up? They can. They can do that again at

[Senator Philip Baruth (Member)]: If we were to pass this, they wouldn't be able to do the part.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Because it's not drug related, at least at the current iteration.

[Senator Philip Baruth (Member)]: Right. So I'm I'm trying to find out, are you suggesting that we include them in the in the carve out?

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Yes. I I think that and I think other like, I think other operations, you may wanna hear from the law enforcement personnel who can tell you their their operations better than I can. I'm civil rights lawyer to help involve myself in ICAC enforcement or firearms interdiction.

[Senator Philip Baruth (Member)]: I'm just wondering why if you're arresting someone who's been targeting minors online or committing an online crime, why you would need to mask up to arrest them. That doesn't necessarily make sense to me because Well, could tell

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: you that all detective work has

[Senator Nader Hashim (Chair)]: not done that to keep them.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: People don't meet human beings on the street. They meet informants on the street. Yep. And those people may may be operating under an assumed identity. You can take you can take that the same would be true for firearms smuggling or for human trafficking. So it I think, you know, and again, if you wanna hear other, you know, people who special this talk about their operations. Well, my understanding is it's not a 100% invisible behind the keyboard.

[Senator Philip Baruth (Member)]: Well, I I guess what I'm thinking is if someone is an undercover cop and they work without a mask, obviously, just pretending to be somebody in the community, it would seem strange to send them to arrest people when you have other officers that could send and preserve the undercover identity of that. You know, why would you burn an undercover cop by sending them to arrest one person? So probably a good idea that we talk to someone who's in charge of these operations. But I can't think of a category of law enforcement where we would want to say, yes, we're going to carve you out and in effect create different ways that people can wear masks legally when I can't see the reason in an intimate crimes case why they do not send officers with identifying information.

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: Peggy? Well, I think we agree on the path to find that out, which is to have somebody who's going down. Yes. So now I am. But I do I do point out that undercover operations are broader than drug. Drugs. So I do want

[Senator Nader Hashim (Chair)]: us to wrap up here shortly because we're already passing it. We'll get Todd doesn't have his hand raised in North. And I'd be happy to revisit this in a few minutes. Want to make sure we can grab some lunch here. But Senator Vahovsky is the last question. Then okay. Do you have any closing thoughts? So we'd also be happy to have you come back if there's more. Sorry, it's such

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: a short time frame. That's okay. I understand it is quite a busy morning for everyone. I guess there are two points that I would raise that I don't know that they have been raised. One is that I think, I applaud the committee for having asked a constitutional law professor from Columbia University that sounded in on that. We listened you know, I listened to that, and others in our office listened to that testimony with great interest. It did not come up in the testimony that there are equally credentialed constitutional law professors who have diverging or or even competing viewpoints about those issues, and I think it's important to have access to those materials. I'm aware of at least two pieces that have been written on the subject by different constitutional law professors that are reading the same cases and offering a different interpretation. I think good to have those materials available for legislative counsel to look at and see whether their insights may affect, again, maybe careful language choices that are made down the road. And the final point, and this could be something that Todd already addressed, because it is an important point. And so the reason that we are looking at this so carefully and so deliberately is that a poorly crafted law, we've had very recent experience on this, or one that is not as well crafted as it could be, could generate court decisions, especially Supreme Court decisions, which make the world much worse off than before the law was enacted or the lawsuit was filed. The US v. Trump, the presidential immunity decision immediately springs to mind where we ended up with a presidential immunity doctrine that was far broader than the party had ever contemplated when they brought the question to the court. There were other examples we could cite as well. Is an important because there's likely going to be a legal challenge. And so we wanna make sure that every, you know, every, every hatchet's been battened down, so to speak, and that's why we're taking subject care for one minute, and I appreciate that the police have doing the same. Thanks. And I appreciate that you've

[Senator Philip Baruth (Member)]: been asking for us, but, you know

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: Senator Norris has a question, and that's all we're at.

[Senator Robert Norris (Vice Chair)]: Yeah. I was wondering if

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: you could provide those names or whatever else to the maybe we could reach out to them. Sure. Sure. And I could also I have the articles that are available. One is the University of California Davis Professor, Vikram Amar, and the other is, I think, the University of Iowa Law School, a professor Noah Schoger. Or if we

[Senator Robert Norris (Vice Chair)]: could send those to our

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: committee assistant. Yeah. We should be able to do that. That'd be great. As well. And then I think I'm aware of

[Paul Daley, Assistant Attorney General, Vermont Attorney General's Office]: a third, I'm not

[Julio Thompson, Director, Civil Rights Unit, Vermont Attorney General's Office]: sure if it's an academic article, but it's a well sourced, it's put under an article says it's really unclear, and it cites those sources, those competing sources as well. And all the articles offer different ideas about addressing similar issues, which is intimidation, safety, as well as accountability. And so we just think it'd be useful to have all those materials available for all of you. Thank you. Okay.