Vermont Legislature SmartTranscripts:

[Senator Nader Hashim (Chair)]: Are there any extras?

[Sophie Sedatney (Office of Legislative Counsel)]: Oh, yes.

[Senator Robert Norris (Vice Chair)]: Right here.

[Senator Nader Hashim (Chair)]: We are live. Good morning. We are in Senate Judiciary, February 6. We have ledge counsel here to taking a recap of two zero eight. Hopefully, voting this out today and the floor is yours.

[Sophie Sedatney (Office of Legislative Counsel)]: Thank you so much. Sophie Sedatney for the office of legislative council. Can I go ahead and share the screen? Yes. I thought it would be helpful just to do a really quick recap. I know a month ago when I was in here, we sort of talked about some of the constitutional issues that could come up. And with the testimony that's that come up, I I think you're probably all more familiar with the terms, but I just thought it might be helpful as you go into the last stretch on revisiting that. So, again, we're primarily focused here on and, this is thinking about possible legal challenges. And, again, it's assuming the federal government is, know, not happy with with the bill, where what angle could they take? And the supremacy clause is really the key one, right, that federal law has precedence over state law if there's a conflict. Please do this all the time. I apologize. Same things last time. Alright. So there's a couple of arguments that can be raised, and one is sort of defenses against having the law enforced against federal officers. So one is intergovernmental immunity and the other is supremacy clause immunity. So the intergovernmental immunity is the one that bars state and local laws that regulate The United States directly or discriminate against the federal government. So we're just gonna look at those two. So regulating The US directly. So the this is one of the central questions in the California case. So the California case has both those issues, the direct regulation and the discrimination piece. But I just wanted to emphasize that direct regulation is also a key part of the California case because I think there's been some confusion around it to just discrimination or their lawyers focus solely on federal offices, which is not the case. It doesn't cover all state offices, but it it does include some state offices. Sorry. One second.

[Senator Nader Hashim (Chair)]: I see, senator Mahovsky has her hand up.

[Senator Tanya Vyhovsky (Member)]: So my question, is kind of so is sort of around this because it doesn't cover all state, can the argument be made and it's sort of targeted at federal officers? Can that argument be made that that's why it is direct regulation? Whereas if it's a blanket law for everyone, it's a blanket law for everyone and not directly targeted at the federal government?

[Sophie Sedatney (Office of Legislative Counsel)]: So these are just two separate questions that come up with intergovernmental immunity. So one is, does it regulate The US directly? And the second one is it does it discriminate against, The US? So they're they're two separate questions. It's I mean, you know, so that you can still have even if you apply the law in a blanket way covering all local, state, and federal offices, that doesn't get you past this first question of does the law directly regulate The United States?

[Senator Tanya Vyhovsky (Member)]: But then wouldn't all laws directly regulate The United States? Can The United States come in and drive drunk or murder people?

[Sophie Sedatney (Office of Legislative Counsel)]: No, they can't. No, they would definitely be subject to that, and then that gets into the immunity piece next. Right, so but again, this is dealing with we'll get into this a little bit more, but in terms of what what the role of the federal officer is, what is the federal officer doing? And if they're doing something that's within the scope of their employment, then they're going to have immunity. If they're if they're driving drunk in the in the you know, while driving to monitor a protest or something, then and they kill somebody, that would be an issue. But if they're actually performing their work and they violate a law, that's that's where we're going to come into in this. Like, is this law directly regulating how they carry out their duties? And depending on how a court looks at that, if they consider it to be a direct regulation, then they would consider this to be an impermissible regulation. If it's only incidental, then it would be permissible. So that's gonna really be the the crux, I think, of any challenge that that comes up.

[Senator Nader Hashim (Chair)]: Okay.

[Sophie Sedatney (Office of Legislative Counsel)]: And then the second piece again is is uprooted governmental immunity is this discrimination piece, and again s two eighty eight is drafted, does not discriminate against federal law enforcement but applies it equally. And then the other primary constitutional issue is the supremacy clause immunity. So then this is a two part test. Previously, they separate. These come together. So you need to answer if you want have to answer no to both of these in order to be able to overcome supremacy clause immunity. So was the official doing something authorized by federal law, and were the official's actions necessary and proper to fulfill the official's federal responsibilities? So again, here, authorized by federal law. There is no federal statute or policy or rule that's directly authorizing or requiring masking by federal officers. And so officials in the Department of Homeland Security have publicly stated that it's up to individuals to decide whether to mask. And then the National Defense Authorization Act, which came into was passed post the George Floyd incident twenty twenty. That requires federal law enforcement officers to visibly display their identity and the name of their federal agency when responding to a civil disturbance. You had asked the question before about civil disturbance, and that's not defined in the statute. But there are sort of department of defense guidance around what that would look like. And then under current regulation, ICE agents are required to identify themselves as immigration officers as soon as it's practical and safe to do so when making an arrest. So s two zero eight is not contravening anything that's out there right now. It's not, you know, inconsistent, but the issue is going to come down to, you know, again, the actions necessary and proper to fulfill the official's responsibilities. And so given that the Department of Homeland Security has left it up to individual officers to decide whether or not they want a mask, what if you land up in litigation over this, you're going to get down to the question of what was the officer's subjective belief and was it objectively reasonable?

[Senator Nader Hashim (Chair)]: Senator Mattos, do have a moment? Sorry. No worries.

[Senator Tanya Vyhovsky (Member)]: No. I just put it up. Don't worry. I know it's hard to to see me with the screen share up and I appreciate you sharing the screen. My question is around so is California is the only place where there is a court case and they're not in the same circuit as us. Correct? Correct. And are there other I know there's other states with laws like this sort of in process. Are there any other states that have actually started enacting anything?

[Sophie Sedatney (Office of Legislative Counsel)]: Not that I'm aware of. And again, we had talked previously that even in the California law, which technically went into effect January 1, is on hold pending a decision from the district court. It's in the lower level court right now in California.

[Senator Tanya Vyhovsky (Member)]: Oh, so it hasn't even made it to the circuit court, so we truly have no idea?

[Sophie Sedatney (Office of Legislative Counsel)]: Right. And I think what's going to be interesting about that California case is going to be that first question that we looked at, which is nothing's actually working right now, is, again, this question on, does the California law directly regulate The US? Because I think if they how they answer that will have implications both for this law. Even though our law is is different to the California law, that's really going to be a central issue, is whether or not requiring masking by federal officers is a direct regulation. And that is a question that should be answered in a California case when when they the decision comes out.

[Senator Tanya Vyhovsky (Member)]: Well, and and just as a matter of process, if the circuit court makes a decision, that can be appealed to the district court, which could then be appealed higher, correct?

[Sophie Sedatney (Office of Legislative Counsel)]: Yeah. It's the other way around. It's currently in the district court, but that's you're saying exactly what I was about to say, which is that even when you have the decision from the district court, that's not really the end of the story because whoever has agreed by that decision is likely to appeal it to the circuit court of appeals. Who's ever agreed by their decision is likely to appeal it to the US Supreme Court. But it would at least give some guidance on how courts are thinking about this direct regulation piece. So, you know, it's always helpful information. It wouldn't be the end of the story.

[Senator Tanya Vyhovsky (Member)]: Right, and my understanding too, generally speaking, is when possible, we like to look to decisions made in our own circuit.

[Sophie Sedatney (Office of Legislative Counsel)]: Right, and we're in the Second Circuit Court of Appeals, and I have not double checked recently, but I have last time I looked, New York is in the second circuit, had the melt law, which is which is the law that that s two zero eight was largely crafted from, at least originally. Obviously, it's changed a little bit since then, and that had not yet passed and become law. Okay. Thank

[Hillary Chittenden (Office of Legislative Counsel)]: you.

[Sophie Sedatney (Office of Legislative Counsel)]: Alright. And so yeah. So then you'd be getting so you'd be looking at authorized by federal law and then with the with the actions of the officer necessary and proper. And so, there are arguments, and the arguments that have been raised, and and these are just summaries. I mean, there are way more arguments, but the government's argued that masking is necessary to protect their agents from assaults and doxing. And then there are arguments on the other side saying, well, historically, you know, officers have not needed masks when making arrests. There's no federal mandate regarding wearing of masks. And, you know, there's also an argument that having masks in unidentified offices actually increases the likelihood. It makes the offices less safe. I did want to just point out that, again, if if we got to that point, because the the committee had asked around criminal and civil penalties, there is a federal statute that if there was a federal officer, you know, s two eight goes into into law, someone violates it, that's a federal officer, they are a and they're prosecuted for a state, you know, whether it's a civil or criminal prosecution in state court, they would likely be able to remove it to federal court. So it would still be in Vermont, but it would be in in the federal district court rather than in a state court. I just wanted to flag that too. So, again, I guess my overall point is that, you know, we put a variety of testimony about the bill and its constitutionality. I think there are legitimate, valid constitutional arguments in support of the bill. There are clearly other people, you know, scholars, legal commentators that have raised questions, you know, about, again, about the California bill and and the legality of those. So the law is just unsettled. So until we have some court decisions, we're just not going to know. So there's no guarantees at the end of the day in terms of, you know, can we make this law appeal proof and, you know. Yeah. Yeah.

[Senator Nader Hashim (Chair)]: And and just one point I wanna put out there is I know we're talking about US constitutional issues. And of course, this does also apply to state, local, and sheriff's departments in the state as well. So if a trooper or deputy for written a ticket, they would be able to go to state civil court to appeal it or or go through that process to litigate it. Right?

[Sophie Sedatney (Office of Legislative Counsel)]: I don't you're not going to have the same constitutional issues because you have police power. Right? The state has you know, you as as the state under the tenth amendment, the state has the right to determine its police powers within its borders. So in terms of its state offices and state law enforcement, you're not going to have these same these same issues. It comes up because it's the state trying to control what federal offices in the state are doing.

[Senator Philip Baruth (Member)]: And, senator Mattos.

[Hillary Chittenden (Office of Legislative Counsel)]: Sophie, you

[Senator Tanya Vyhovsky (Member)]: this may not be a question you have the answer to it or you may need to do some research, but I'm wondering, in terms of misdemeanor crimes with a fine of $1,000 do you have any sense of how often someone is actually taken into custody for that type of crime versus just cited?

[Sophie Sedatney (Office of Legislative Counsel)]: I don't know. I mean, maybe some of the law enforcement folks that we're in might have that information or the Department of Public Safety, but I yeah. I don't know on that. And I did want to just include Hillary, as well on the discussion around the civil and criminal, penalties, because that issue had come up. And I I think the general sense is that, you know, again, if someone's facing criminal penalties, that's always going to be, you know, maybe chill their actions. It's gonna have more of an impact on how they handle themselves. But at the end of the day, as as we went through those constitutional issues, none of them turned on what the penalty was that someone that violated the law would have faced. So it's not it's not a determining factor. It it could be again, anytime you raise the stakes if you have a criminal penalty in it, for sure, but it's it's not a determining factor, I think, as far as the constitutional piece goes. And I'm happy for Hillary to to weigh in on that too.

[Senator Nader Hashim (Chair)]: I'll just add real quick. Going back to senator Baruth's question that, I mean, if it's if it's a witness, it's gonna be under the rules if it's witnessed by another officer, then the officer who's wearing a mask can be arrested, handcuffs, taken away, and all that. If it's not witnessed, but this is just a hypothetical. If it's not witnessed and they they get a tip about it and through an investigation, they have probable cause that another officer was wearing a mask, then they would just get a citation. But I think given the context and circumstances in which you would see this getting enforced, I could see it being used often more so in situations where an officer is witnessing another officer wearing these disguises and masks.

[Senator Tanya Vyhovsky (Member)]: As a follow-up to that, given that it's a tiered, how someone necessarily know in the moment if that was the third time they did it? Wouldn't they have to look into that and investigate that, thus making it far more likely that they'd end up in a situation where they'd be cited?

[Senator Nader Hashim (Chair)]: No. If you're detaining somebody for what is initially a civil violation. You know, like you detain somebody for going 85 miles an hour on the interstate, you know, that's not a criminal investigation yet. But at once you pull them over and you realize they're driving with a criminally suspended license and you've witnessed that misdemeanor, they're still detained. They're still unable to leave just as they were previously when you had pulled them over for going 85, but you weren't investigating a crime. But then, yeah, after you detain them and start your investigation, then you realize they're criminally suspended or maybe it's a DUI or they have a warrant, then it turns I don't know. And they're still detained.

[Senator Tanya Vyhovsky (Member)]: Isn't that sort of that's all immediately available information. I can't imagine how it would be immediately available to someone in the moment whether or not this was the first, second or third time they had ignored this law.

[Senator Nader Hashim (Chair)]: No, it's not immediately available.

[Senator Tanya Vyhovsky (Member)]: So I guess, I mean, you have to do an investigation into figuring out is this a civil violation versus is this a misdemeanor? So I feel like that would sort of lend it, whereas like I can, I mean, I can't because I'm not a police officer, but a police officer roadside can look up someone's license, can give them a breathalyzer and determine right there in the moment if what they pulled them over for has escalated to a crime? You can't do that with this.

[Senator Nader Hashim (Chair)]: I don't think that's correct, but Okay. Hilary, do you have testimony you wanna provide?

[Hillary Chittenden (Office of Legislative Counsel)]: Sure. Hillary Chittenden, Office of Legislative Counsel. The committee had some questions about whether having a civil or criminal penalty would make a difference in a court analysis or a challenge of the bill. And as Sophie mentioned, it's not an explicit part of what the court is asking and these kinds of challenges, but I'll just talk about the federal government's argument in California case to give you kind of example of how the kinds of arguments that could be made against cover month law. So The US is arguing under that direct regulation from that the California law directly regulates federal law enforcement officers because it hampers federal operations, federal law enforcement operations. And they make two arguments for why that's the case. They say, first, that justice and safety of officers either in the drug or operations that should be anonymous, you know, are not included in the exceptions of the bill. Not fair to the civil or criminal penalty would affect that argument one way or another. The other argument is that having criminal liability chills federal activities by, you know, subjecting officers to the threat of a criminal prosecution, which is both, you know, kind of chilling effect of they're going to want to conduct themselves in a manner to avoid prosecution, changing their conduct. And the other is a little more concrete, which is if they're arrested for a criminal offense that has more direct disruption on whatever law enforcement operations they may be engaged in. So the question would be, you know, for both the chilling effect on officers and for the potential for an arrest to disrupt federal operations. What's the difference between a civil penalty and criminal penalty? Often we think of criminal liability being more chilling, more intimidating than the prospect of civil liability. And as the committee has been discussing, a civil violation would not immediately give rise to the threat of an arrest that would directly hamper operations. So based on the argument The US is making in the California case, having a criminal penalty versus a civil penalty might affect some of the arguments on the margins. As the attorney general's office mentioned this week, a lot will come down to whether the court really believes the evidence that the federal government has put in in support of those arguments. So they put in declarations and assertions from various federal law enforcement officers. And in those declarations, they refer to both the kind of chilling effect of criminal and civil liability. So if the court is looking at the evidence, it's not clear based on the evidence in the California case that they've demonstrated that there would be a real difference between the threat of criminal or civil liability. That kind of thing is kind of binding on the federal government going forward in different litigation, but it's entirely possible that they'd able to kind of craft a different argument in in a new suit.

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

[Senator Robert Norris (Vice Chair)]: a little housekeeping for my information purposes here. So you had mentioned the federal courts versus Vermont civil courts, whatever else. What are we looking at here as far as this is this a if it's a civil violation, certainly not gonna receive a citation. Is it a technical defense, or is this something that the traffic bureaus don't oversee? Or the you did mention courts when it's a civil offense. So what's what's

[Senator Nader Hashim (Chair)]: the the game plan here? Guess.

[Sophie Sedatney (Office of Legislative Counsel)]: So and in the and I can I can put up the the the

[Senator Nader Hashim (Chair)]: Oh, judicial bureau? Fine. If you have a meeting Yeah. Let's go. First. Yeah. Yeah.

[Sophie Sedatney (Office of Legislative Counsel)]: So with the current and this was not new. This was added last time, but it was added in that the judicial bureau would have jurisdiction over the violations. And then, you know, obviously, if there's issues, appeals within that, I mean, it might ultimately, you know, work its way up through the system. But the the goal is that it would be through the judicial bureau.

[Senator Robert Norris (Vice Chair)]: So then I would answer senator Philip Baruth's question is the officers won't be able to tell if it goes to the judicial bureau. They will be in the database, so they would be be able to immediately tell if it was second or third violation.

[Sophie Sedatney (Office of Legislative Counsel)]: Yeah. I don't know the details of how it works, but yeah. That

[Senator Robert Norris (Vice Chair)]: seems to be the right route to go.

[Sophie Sedatney (Office of Legislative Counsel)]: Did you want me to go through what the changes were for on this margin?

[Senator Nader Hashim (Chair)]: Which can be about senator Mattos.

[Senator Christopher Mattos (Clerk)]: I just have one quick one, Sophie, from your presentation. So we'll have law enforcement officers have to identify themselves, correct, in 208?

[Sophie Sedatney (Office of Legislative Counsel)]: Right.

[Senator Christopher Mattos (Clerk)]: Now, on the supremacy clause immunity, ICE agents are required by regulation, federal regulation to identify themselves as immigration officers as soon as it is practical and safe to do so. So when our law two zero eight passes, would it still be in the federal eyes when it is safe to do so? Or is it because it's a regulation, not a statute and federal law? I don't know.

[Sophie Sedatney (Office of Legislative Counsel)]: Yeah. I mean, the under the Vermont law against humanist became law, they would be required to to be wearing that identification, right, on their purse, and it was what the committee had had suggested Right. For this. So that would be different than the regulation. You know, again, that you know, this could all be solved at the federal level if if either there was a clear direction in terms of, you know, wearing or not wearing masks or how to identify. I mean, the general sense is that his that historically Mhmm. The federal law enforcement officers that they are supposed to identify themselves. Right? That is really what that information is communicating is this is not asking them to do something that is out of the ordinary and that has not been sort of normal practice. So, you know, the goal is here is to is to make that you know, we had conversations before around as soon as practical, like, what does that mean and all the rest of it. But, again, there isn't any clear direction at the federal level that would supersede what you're seeking to do here. Right?

[Senator Nader Hashim (Chair)]: Mister Norris, you have been moment ago, you had raised the traffic ticket piece and say you said that you think that would be the way to go. Were you suggesting I don't want to put words in your mouth, but were you suggesting a preference for traffic tickets and removing the criminal offense?

[Senator Robert Norris (Vice Chair)]: Yes. So

[Senator Nader Hashim (Chair)]: based on what we've heard from the council, the compensation will be back on that before two, but to many members feel Bernard met.

[Senator Robert Norris (Vice Chair)]: So sorry. We're we're trying

[Senator Philip Baruth (Member)]: to get on the same draft.

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

[Sophie Sedatney (Office of Legislative Counsel)]: Is it 3.1? It's 3.1.

[Senator Robert Norris (Vice Chair)]: Let me look at that.

[Senator Christopher Mattos (Clerk)]: I have 21.

[Sophie Sedatney (Office of Legislative Counsel)]: I sent it yesterday. Can we get copies with that? Yes.

[Senator Nader Hashim (Chair)]: Emory's on it. Alright.

[Sophie Sedatney (Office of Legislative Counsel)]: Sorry. I Yeah. No worries. Normally, I'm over prepared, and I've done masses of copies of everything, and I didn't put that.

[Senator Nader Hashim (Chair)]: CC senator, but also, you have a hand up? Yeah.

[Senator Tanya Vyhovsky (Member)]: No. I I don't support that. I mean, as I've said before, I think the point is that the escalating offense has a more chilling effect and says, No, don't do this. And it was already a compromise to come to the first two offenses being civil and the last offense being a misdemeanor. I wanted it to be a criminal offense from the beginning. This is already a compromise.

[Senator Nader Hashim (Chair)]: Yeah. Well, I mean, when I first drafted the bill I heard Biden drafted, but when I first contemplated the idea of this bill it was to be a civil offense. And I think we had a lot of good conversation going back and forth regarding criminal versus civil. And I think when we look at what's happening in other courts and what the potential chilling effect is and whether or not we wanna create good or bad precedent, you know, moving forward. And I I do think it makes sense to stick to civil offenses. Anybody else?

[Senator Philip Baruth (Member)]: I would say it's it's a bill that it would be best to be on a solid ground as we can and to be as unified as a committee as we can around what comes out to the floor.

[Senator Christopher Mattos (Clerk)]: Yeah. I just think what Hillary touched upon kind of put that concrete idea in my head about the chewing effect that you you both mentioned. So bringing it back around to that civil offense that it was originally intended as we get more information about how it would affect if it were to get

[Senator Nader Hashim (Chair)]: to a court. Mhmm. Alright. Well, I think we're getting we're taking a step backwards to the previous version, which had which doesn't have the criminal offense in it. I think we're getting copies of that here in a second.

[Sophie Sedatney (Office of Legislative Counsel)]: Oh, it's still okay. I was just gonna say v v 3.1 didn't change the the penalty piece, but obviously, can change that.

[Senator Nader Hashim (Chair)]: Oh, what? Okay. It didn't change the criminal offense.

[Sophie Sedatney (Office of Legislative Counsel)]: Right. Okay. Because that was an undecided question at the end of last

[Senator Christopher Mattos (Clerk)]: Are we gonna leave a step? Yeah. I think

[Senator Nader Hashim (Chair)]: one and then one ticket and then second I ticket think that's yeah. That's fine.

[Senator Philip Baruth (Member)]: Can you just remind me, Sophie, current law, the courthouse piece to and from the courthouse, the penalty structure is? One. That's good, Phil.

[Sophie Sedatney (Office of Legislative Counsel)]: Oh, Yeah. Sorry. Sorry. That was cool.

[Senator Nader Hashim (Chair)]: We have, Sarah Bahoski's line up.

[Senator Tanya Vyhovsky (Member)]: I know I'm gonna lose this argument, but I'm gonna make it anyways. You know, we also heard from Sophie that the penalty doesn't have that much of a role in whether or not it's deemed to be constitutional. And we have Immigrations and Customs Enforcement, which is funded at more than 10 other countries' militaries. So I just don't see a civil fine actually stopping them from doing anything. The point of the law is to make sure that law enforcement operating in Vermont is following proper identification. And I don't see any instance in which even escalating fines is actually going to make them follow it. And so for me, the point of having the criminal offense is to make them follow the law. So the chilling effect is the point.

[Senator Nader Hashim (Chair)]: Well, if the chilling effect is the point, then that makes me more inclined to avoid the criminal offense.

[Senator Tanya Vyhovsky (Member)]: So then why pass the law at all? If they have all the money in the world to just not follow it, why bother?

[Senator Nader Hashim (Chair)]: Well, that's a rhetorical question. But I I think all of the reasons enumerated in the bill are why we should pass it. If you think it's not gonna be enforced, that's your opinion. But thank you. So, Sophie, if you wanna do a wash through of 3.1,

[Senator Robert Norris (Vice Chair)]: that would be great.

[Sophie Sedatney (Office of Legislative Counsel)]: So there were just a handful of changes on 2.1. So the first was on the identification requirements was to make it clear. So this is see at the top of page two was to require that the officer's name, unique radio, or badge number be visibly displayed on the officer's person. And, again, that was to reflect that some of the officers law enforcement officers in Vermont are not wearing uniforms, but wearing business attire or whatever. And so this was to allow them to wear it, you know, display it on their person rather than on their uniforms. They're not wearing uniform. And then the same in sub subsection, subdivision b. And then also the addition of the word physically, so a law enforcement officer shall not wear any mask or personal disguise while physically interacting with the public in the performance of the officer's duties. So, again, if an officer is doing something online or Mhmm. Whatever that's not physically interacting with the public. And then on page

[Senator Tanya Vyhovsky (Member)]: Can I ask a question about physical? I understand the purpose of this, meaning that if they're actually interacting with people in real life, but would physic could physically the word physically be construed to mean if they are putting their hands on someone?

[Sophie Sedatney (Office of Legislative Counsel)]: Yeah. I mean, it's a broad term. I think the what what my understanding of the intent has been is that when you're out visible sort of to the public and interacting, whether it's on the beach or dealing directly with protesters or one on one with with individuals, that that's what's intended by it. But, I mean, could it be interpreted as physically touching somebody? Yes. I mean, it's it's a broad term.

[Senator Tanya Vyhovsky (Member)]: And that is my concern. I support the intent of the language, but I'm worried that this actual word may narrow it quite significantly to only apply when they're actually putting their hands on someone. So I'm not sure if there's a better word to get at that intent.

[Sophie Sedatney (Office of Legislative Counsel)]: I mean, I I I my understanding was the goal was really to distinguish between sort of online interactions with the public. But, I mean, again, it's up to the committee on how you want to address it.

[Senator Tanya Vyhovsky (Member)]: Yeah. I I like I said, I understand that that is the intent. I'm just not sure if this word does that, and if it could be read to mean something different than what we intend it to mean.

[Senator Nader Hashim (Chair)]: I think it's fairly straightforward.

[Senator Christopher Mattos (Clerk)]: Yeah. I read it as

[Senator Nader Hashim (Chair)]: I'm in front of senator Baruth. I'm physically Yeah. Terms of the interacting. Now. Are we done? Yes, please.

[Sophie Sedatney (Office of Legislative Counsel)]: On page three, this was so there was we already had the exception in here. So there's the exception for the tactical services unit, the exception for officers working with or in conjunction with the Vermont Drug Task Force, and then this added an additional one for law enforcement officers who participate in active undercover investigations relating to child sexual exploitation, may use a personal disguise when necessary to perform such investigations. Those those were the changes from last time. And so there was not a change for the penalty provision, which currently provides at the top of page four, the sliding scale, but the third offense, again, would be the criminal one. So, again, it looks a little odd at the moment because it's a 2,500, a thousand. But again, that's because of the criminal implication for the third offense.

[Senator Nader Hashim (Chair)]: So, committee, anybody can correct me if I'm wrong. It's my understanding that at least four of us are in agreement of removing line five there on page four which is that third and subsequent offense. So if that is correct, then I would ask if we if we could get a new version of that, Just removing that offense, the third offense, leaving everything else the same.

[Sophie Sedatney (Office of Legislative Counsel)]: So would it be for a second?

[Senator Christopher Mattos (Clerk)]: And subsequent

[Sophie Sedatney (Office of Legislative Counsel)]: offense would be $2,500.

[Senator Nader Hashim (Chair)]: Yeah. Okay. I think once we get that, we can bring it up for a place.

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah. I'll go ahead and answer to a question. Go ahead. One suggestion. Yeah. Senator Baruth, to your question about s two zero nine, the remedies of that bill are for potential civil suits. So it's not a civil violation. It's not a criminal violation. Mhmm. Authorizes an individual person to write a civil suit for damages for false imprisonment who was arrested Mhmm. In aggressively. And the attorney general's office can bring a civil suit not for damages, not for money, but to ask the court to prevent someone from violating the law. So a kind of different

[Senator Nader Hashim (Chair)]: Yeah.

[Hillary Chittenden (Office of Legislative Counsel)]: Penalty structure. One option the committee could consider on the physically interacting language would be interacting in person. Mhmm. As you mentioned physically interacting could be interpreted Mhmm. Both as the committee intends and potentially as it sounds like the committee might not intend. So that could be one language option that

[Senator Philip Baruth (Member)]: I like that.

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah. Could address the intent of the committee perhaps and might avoid ambiguity and interpretation.

[Senator Nader Hashim (Chair)]: No. I think that could that could work. I think, as you know, the intention is to make it so that if there are detectives posing, you know, online chat rooms, they're they're interacting digitally. Whereas having a verbal conversation, self centered Mattos or whomever, that's obviously in

[Senator Robert Norris (Vice Chair)]: a different

[Hillary Chittenden (Office of Legislative Counsel)]: realm. If Interacting you think in person, interacting in the physical presence of the public. I like in person better, but I just operate. Yeah.

[Senator Nader Hashim (Chair)]: We good with that, James?

[Senator Robert Norris (Vice Chair)]: I am just full of compromise this morning.

[Senator Philip Baruth (Member)]: Thank you, sir. Aren't you always still a problem? Pretty much. The soul of compromise.

[Senator Nader Hashim (Chair)]: You're good with interacting in person? Yes. Yes. Okay. We could also make that change.

[Sophie Sedatney (Office of Legislative Counsel)]: I've I've just made that change. So I don't did you want to review it? Yeah?

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

[Senator Philip Baruth (Member)]: So are you freezing or are you cold yet? I was it wasn't. Boy, my the valve that shuts off the heat was broken. So it was up to 80 degrees. Your thermostat, ain't it? Well, you're well now. So so the thermostat was working. Yeah. But it wasn't the zone heating wasn't accepting the command from the thermostat. So and I had trouble with my hot water that's been long standing. So I got it all resolved in three hours, and I paid, like I I don't even wanna tell you

[Senator Nader Hashim (Chair)]: what I pay. Expensive per hour. I was

[Senator Philip Baruth (Member)]: like, oh my god. But I couldn't come down here. I couldn't go away for the weekend with my heat.

[Senator Nader Hashim (Chair)]: I don't know about that. Sorry. Oops.

[Sophie Sedatney (Office of Legislative Counsel)]: So I this will be version 4.1, and I took the highlight off, but so here in Subdivision 2, a law enforcement officer not wearing a mask or personal disguise while interacting in person with the public in the performance of the officer's duties. Yeah. Yes. And then I'll give a penalty for first offense, a thousand dollars for a second offense and subsequent defense. Assess a civil penalty of not more than $500.

[Senator Nader Hashim (Chair)]: Very good. Well, ten minutes to space. I'm sorry. The host is here. So I would entertain a motion to vote version 4.1 out favorably. Any further discussion? So I'll just I put everything that needs to be said has already been said. So but senator Mattos, you could call the roll.

[Senator Christopher Mattos (Clerk)]: Certainly. Senator Norris?

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

[Senator Christopher Mattos (Clerk)]: Senator Baruth? Yes. Senator Matos? Yes. Senator Vyhovsky?

[Senator Tanya Vyhovsky (Member)]: Yes.

[Senator Christopher Mattos (Clerk)]: Yes.

[Senator Nader Hashim (Chair)]: Senator Hashim? Yes. Senator, I just wanna confirm, was that a yes? It was obtained. Okay.

[Senator Tanya Vyhovsky (Member)]: I'm not allowed to abstain unless I leave.

[Senator Philip Baruth (Member)]: Okay.

[Senator Christopher Mattos (Clerk)]: 500.

[Senator Nader Hashim (Chair)]: Great. Alright. I'm happy to report this one out. And we have thank you much council for all the back and forth and all the research. It. Do we do we have to take

[Senator Christopher Mattos (Clerk)]: two votes? Because we amended it. We struck it out. All. It was a strike all. So we voted on the amendment. Then do we have to vote on the bill as amended?

[Senator Philip Baruth (Member)]: I always feel like unless there's significant disagreement about the amendment, we just take one vote. If

[Senator Tanya Vyhovsky (Member)]: we are taking one vote, I vote no on the amendment and yes on passing the bill out.

[Senator Robert Norris (Vice Chair)]: Well, why don't you call a vote on the amendment?

[Senator Christopher Mattos (Clerk)]: So the amendment amendment is a strike all.

[Senator Tanya Vyhovsky (Member)]: Yeah. I wasn't sure if we were taking two. I don't really have I mean, I do have strong feelings, but depending on how we structure the vote, I just wanna know what the motion is that I'm voting on because I will depending on that, my vote does change.

[Senator Nader Hashim (Chair)]: Well, okay. So with that

[Senator Philip Baruth (Member)]: said, maybe we should call the amendment.

[Senator Christopher Mattos (Clerk)]: So, Tanya, what do you say? I'll call the amendment.

[Sophie Sedatney (Office of Legislative Counsel)]: Okay.

[Senator Christopher Mattos (Clerk)]: S two zero eight, the amendment, which

[Senator Nader Hashim (Chair)]: is a strangle. And it's just so that the record is clear. What we were vote what we just voted on was

[Senator Philip Baruth (Member)]: The final bill.

[Senator Nader Hashim (Chair)]: The final bill that does have the amendment. And so we're just taking a little step back in time, making sure we vote on the

[Senator Christopher Mattos (Clerk)]: amendment. Amendment. Yes.

[Senator Philip Baruth (Member)]: Okay. Great.

[Senator Nader Hashim (Chair)]: Good catch. Alright.

[Senator Christopher Mattos (Clerk)]: Let's do that again. Senator Norris?

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

[Senator Christopher Mattos (Clerk)]: Senator Baruth?

[Senator Philip Baruth (Member)]: Yes.

[Senator Christopher Mattos (Clerk)]: Senator Mattos? Yes. Senator Vyhovsky? No. Okay. Got it. Senator Hashim? Yes. Four one zero on the amendment, the bill as amended five zero zero.

[Senator Nader Hashim (Chair)]: Yes. And we're all understanding of what the amended burden is. Yep. Yep. Okay. Alright. So we've got five minutes until Katie and Eric come in, some discussion on s one ninety three. And then at 10:30, we'll go to 02:09. And, hopefully, we'll note that out if there's any markup. And that's at 04:11 thirty. So you can take a five minute break until it's time. I sent

[Sophie Sedatney (Office of Legislative Counsel)]: the version 4.1 to Emily.

[Senator Robert Norris (Vice Chair)]: Didn't do that. Can you call it?

[Sophie Sedatney (Office of Legislative Counsel)]: So I don't know physically who's moving