Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Good morning. It is March 26. We're counting the senate judiciary revisiting page 39. We have Professor Vander with us who testified in the house judiciary committee and just wanted to get his perspective on the bill as well and actually ask any questions you may have. Professor, do want to introduce yourself? The floor is open, please.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Sure thing. My name is Jim Vander and I teach at Northwestern University School of Law in Chicago. And I've been thinking about matters of constitutional enforcement and officer suits for the better part of my career, a career that runs more more years than I should probably share. It's good to see you all. Thanks for inviting me in.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Thank you. And, yeah, if you have any general testimony that you wanna provide, that that would be great.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Okay. I can do that right now. Just a few thoughts about the statute itself, which as you know, authorizes suits on behalf of Vermont citizens and others, subject to the jurisdiction of Vermont, to enforce the federal constitution. The language of the statute tracks current 42 USC nineteen eighty three, the federal civil rights statute that was adopted, in the Reconstruction era, but it differs from section nineteen eighty three in a couple of notable respects. Perhaps the most, significant, difference for our purposes today is that it applies not only to official action under color of state law, but also applies to official action under color of federal law. And so it would apply to federal constitutional violations committed at any level of government, at the local level, the state level, or at the federal level. The other thing that it differs in, in comparison to section nineteen eighty three is that it omits any reference to federal statutes. So there's no provision here for the enforcement of federal statutes, only the terms of the privileges, immunities, and so forth that appear in the federal constitution. There's another provision that is in some ways similar to nineteen eighty three, and that is the special provision dealing with suits against judicial officers. That was a response by congress to, some litigation that named, judges as, defendants in, federal court litigation in 1983. And, basically, the statute preserves the possibility of that sort of suit for injunctive relief, but shields the officer from the payment of, fees. So that's just a brief overview of the statute. It's a part of a kind of collection of statutes that have sometimes been referred to as Converse nineteen eighty three claims. In the sense that nineteen eighty three is a federal statute that primarily focuses on, state and local government action, but there is no comparable federal statute that focuses on federal, government action. And so, in a statute of this character, it would be the state that would be authorizing the suit to go forward against government officials for violation of civil rights, constitutional rights, and the major contribution the statute would make would be to bring federal government officials within the framework of this system of constitutional enforcement. As you know, the current state of the law as it applies to the enforcement of constitutional rights against the federal government is a bit spotty. There are some statutory provisions that authorize suits against the federal government as such. For example, the Federal Tort Claims Act, the Tucker Act authorizing suits for the taking of property or the breach of contract and so forth, but there is no general federal statute that authorizes the enforcement of the federal constitution against either the federal government or against federal officers. And so the supreme court has tried to fill that gap, in the federal statutory framework and has done so with a couple of different forms of judge made law. One of those actions is often referred to as the ex party young action. That is a suit against an officer to enjoin or to compel the federal or state official to comply with federal law, especially the law of the constitution. And this is the this is the familiar tool of constitutional enforcement, a suit against a government official rather than against the government itself that seeks to compel the official to refrain from a continued violation of the constitution, a threatened or continued violation. So if the government is proposing to shut down a bookstore, an action under the First Amendment might be available to restrain, that attempt. If there's an ongoing practice of race or sex based discrimination, a federal court can enjoin that pattern or practice of discrimination in a suit brought against the official rather than against the government. So suits for injunctive and declaratory relief are very common, and they proceed on the basis that the suit is being brought against the officer rather than against the government. In addition to those, judge made suits in equity, the supreme court has recognized a small category of judge made suits at law for money damages that can be brought against federal officials acting within the course and scope of their employment who violate constitutional rights and and in doing so, cause injury to individuals. The most famous example being the suit brought by Bivens, Webster Bivens against the Federal Bureau of Narcotics and its agents back in, the late sixties and early seventies, the supreme court decided in the Bivens case that, indeed there was a right to sue to enforce the Fourth Amendment for, an unlawful search for the use of excessive force and other familiar forms of police misconduct. And so we now refer to the Bivens action to describe this category of suits brought by individuals against federal officers to secure an award of money damages for what's called a constitutional tort, a tort committed in violation of the constitution. But as you also know, the Bivens action has not been extended to all constitutional violations. It extends more narrowly to only two or three categories of constitutional violation. So the supreme court has held that Bivens actions are available in the prison context when there is a violation by a federal official of the eighth amendment prohibition against cruel and unusual punishment. And it has also upheld a Bivens action to remedy an instance of sex based employment discrimination committed by a member of congress and actionable under the terms of the fifth amendment, the due process clause of which has been interpreted to encompass an equal protection component as well. Aside from those what are called settled context, the supreme court has been quite reluctant to extend the Bivens suit to other contexts, and in doing so has emphasized the importance of legislative engagement. So instead of continuing its old practice of providing authority for these suits by judicial decision, the supreme court has called on legislatures to fill, to step up and fill the gap, if you will, by providing authority by way of statute. And so many states have, in a sense accepted that invitation and have adopted statutes that, authorize suit against federal officials in in much the same way that the proposed Vermont legislation would do. There are some variations, obviously, from state to state, but, California, Massachusetts, and Illinois have laws on the books at present, and New York is contemplating such a statute. There are other statutes, that have been interpreted to encompass violations of the federal constitution as well. So the contribution that this statute I'm sorry. Go ahead.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Sorry to interrupt your train of thought here. I think I missed it. Did you say it was the Bivens decision that invited legislatures to make, these policies?

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: It's not so much the Bivens decision that extends the invitation. Bivens was a decision in which the supreme court was willing to, on its own, provide the authority for the right to sue. So, Bivens action is a judge made, right of action. In more recent decisions, and I'm thinking now about cases like Egbert versus Bouley, Ziegler versus Abbasi, the supreme court has expressed the view that it would no longer be appropriate given its perception of the relationship between the judiciary and the legislatures for the judges to make these or fashion these rights of action. So the invitation in a sense to legislatures to get involved is a more recent development. So it's something that has taken hold in supreme court decisional law in the last fifteen years or so. The last expansion of the right to sue in in the Bivens line of cases accomplished by judicial decision was probably in the mid nineties. So it's been perhaps fifteen or twenty years now since the supreme court has been, willing to authorize suits against individual federal officials. And the the justification for that, as I indicated earlier, is the court's perception that it's a legislative function, not a federal judicial function, to recognize the existence of these sorts of rights to sue. K. Is that is that helpful?

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: That is.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Okay. Great. So there have been questions raised about both the the the scope, the reach, if you will, of such a statute, what kinds of constitutional violations are contemplated. At present, the much of the federal constitutional tort litigation that proceeds against federal government officials targets law enforcement and prison administration. That's the, I think, leading those are the leading areas in which such litigation occurs. But the potential scope of constitutional tort litigation extends more broadly, obviously, because, that body of law has been dealt developed in the interpretation of 42 USC nineteen eighty three, and that body of law represents a broader acceptance of the viability of constitutional tort litigation. So there are possible claims not only under the Fourth Amendment and the Eighth Amendment, but claims as well perhaps under the First Amendment for an interference with religious freedom, an interference with free speech, inter you know, an incursion or an invasion of the rights to petition or to assemble as the First Amendment guarantees, perhaps handgun owner rights under, the Second Amendment gun ownership rights, may be protected as well. Fifth amendment due process rights also protected. So a variety of rights would be enforceable, pursuant to the statute, a collection of rights that would extend more broadly than the the current availability of what are called Bivens actions against federal officials, which as I indicated earlier,

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: are primarily, targeting at present at least police enforcement, law enforcement activities, and prison, administration activities. There have been arguments, as

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: you all know, that the states may not have the authority or the power to adopt such a statute, that such a statute would be preempted by federal law. And I address the preemption arguments in my written submission. I can briefly summarize them and then invite your questions. Some of the some of the preemption arguments don't seem to have much support in the decisional law. The so called intergovernmental immunity doesn't seem to apply here. There are two arguments that, in a sense, the recognition of a state based constitutional tort claim against federal government officials would interfere with the administration of federal law and would therefore possibly be preempted is an argument that the government, federal government may well make and has made in arguing against the legality or the constitutionality of the Illinois statute. And so that's a that's an issue that we can, that we can expect to see litigated in the court system, and ultimately decided by the Supreme Court. So one argument for preemption might be that the state law conflicts with federal law, but it's hard, I think, on careful reflection to see a conflict here because the supreme court in denying, for example, the right to bring a Bivens action under the first amendment is not saying that federal officers don't have to comply with the first amendment. It's not saying that federal officers are not governed by the first amendment. It's simply saying that there has been no statute adopted that authorizes a suit to go forward to enforce the First Amendment. And so in that sense, the statute stands as a kind of invitation for legislative engagement. And so if the legislature was to step in and provide the statute in question, it's a little hard to see a conflict with the way the supreme court has phrased its own reluctance to extend the judge made right of action. So if you think that what the court is doing is declining to recognize these suits as a matter of judicial restraint in deference to the legislature, then a decision by the legislature to step in would not necessarily come into conflict with anything that the supreme court has said. Another source of potential preemption is, of course, the Westfall Act, and the Westfall Act is an amendment to the federal tort claims act, which was adopted 1947 to make the federal government responsible for the torts of federal government officials. There was an argument at one point that the federal tort claims act should be understood to displace the availability of a Bivens claim, especially a claim against law enforcement or prison officials. But the Supreme Court rejected that argument, some years ago and held that the two statutes and rights of action could coexist. And so in the modern world, it's possible for an individual to sue seeking both federal tort Claims Act relief against the federal government under the Federal Tort Claims Act, but also to seek compensation under the Bivens doctrine. The court did say that the two kinds of proceedings sought to vindicate different rights and different interests, and therefore, the availability of a tort claim wouldn't necessarily displace the availability of a constitutional tort claim. So instead of suing for trespass, for example, you sue under the Fourth Amendment for excessive force, let's say. And the court seemed to think that those two kinds of claims could coexist. The argument for preemption is, a provision that was added to the Federal Tort Claims Act in 1988, the so called Westfall Act. And in the Westfall Act, the court the congress of the United States decided that the remedy available under the Federal Tort Claims Act should be the exclusive remedy, and in that sense, appears to have displaced the possibility of some common law tort claims against federal officials. But in the course of adopting that statute, congress adopted a savings provision that applies to suits for violation of the constitution. So although there is language in the Westfall Act that, would seem to displace some state tort claim, like a trespass claim or a false imprisonment claim, there's a specific savings provision that authorizes the continued assertion of suits for violation of the constitution. So congress was keen to ward off any potential displacement of a constitutional tort claim. And so a statute like the one that Vermont considers here would appear to qualify as a constitutional tort claim within the terms of the Westfall Act exception. And that is a question that remains undecided by the supreme court. There's only a couple of lower court decisions, and I refer to them briefly in footnote at the end of my, written submission in which the courts have, seemed to suggest that certain kinds of state law claims would be displaced, by the Westfall Act provision, But for a variety of reasons that we can talk about, at greater length, if you're interested, I don't think that those decisions, necessarily apply to the kind of statute that Vermont has, before it here. So I'll stop right there and, look forward to your questions. Thanks very much.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Committee, any questions? So

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Mr. Chairman, I'm not hearing anything. I'm not sure if you guys are hearing things on your end.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: No. I there was just a brief pause. I was trying to sort through my notes.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Okay sorry.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Question that I had here. You know one one mention that we had from our Ledge Council was kind of a general suggestion on page one that with line eight through 16 that some of the language could be potentially made a bit more clear. Do you have any input or perspective on that?

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: I don't have the line enumerated bill in front of me right now. What I have available to me is the version of the bill that I copied into my written testimony. If you can point me in particular to the language that you're concerned about, I'd be happy to take a look.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Sure. It it starts with every person who under color of any statute, ordinance, regulations, so on. Then then concludes with declaratory relief with unavailable. So basically the first section and subsection of the bill has passed by the House. I mean, it's not a yeah, catastrophic issue with this bill. It seems like kind of general recommendation that it could be. Can we clarify a little bit? Yes.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: I you know, there the language in some ways does seem a little archaic because I think it's taken largely from the text that was adopted by congress back in, you know, the eighteen sixties or early eighteen seventies as part of reconstruction. The advantage of the language that appears in the bill is that it is quite similar to the language that appears in section nineteen eighty three. So it's going to likely be interpreted in in in ways that are consistent with the current interpretation of nineteen eighty three. In other words, it will create a new right to sue, but will otherwise track the available law that has been developed under 1983. And that has some real advantages and that it may limit the degree to which the statute poses novel or confusing questions of statutory interpretation. There is a well established body of law on the interpretation of this language that that we can look to that's been developed by both state and federal courts in 1983 litigation that we can look to as we try to understand, what the legislature has in mind when it adopts this statute. Just to give you one example, there's no reference here to any qualified immunity that would extend to any officer sued for a violation of the federal constitution. But the doctrine of qualified immunity is a well established doctrine in 1983 litigation, and so one might suppose that a court asked to determine whether qualified immunity defenses are available to officers sued under the statute would say, well, that's the way similar language has been interpreted under 1983 and without any indication from the Vermont legislature that it intends to go in a different direction. Maybe it make would make sense to, treat qualified immunity as available even though there's nothing in the statute that discusses it specifically. The other thing I would say about the advantages of keeping the somewhat archaic and perhaps confusing language of 1983 is that the statute would would, I think, more even handedly enable the constitution to regulate the official action in question rather than imposing as a matter of state law additional regulations on state and federal government activity. I think the best defense against any preemption of a statute like this is that Vermont is not the entity doing the regulating of federal officials here. The regulation of conduct is being implemented, if you will, by the constitution itself. And I think one of the reasons that the Illinois statute may be subject to, you know, to perhaps at least a substantial challenge and perhaps invalidation is because that statute goes beyond the constitution and imposes some additional limits on what federal agents can do, especially in the immigration context. And that kind of statute may be more likely to succumb to a successful challenge based on a claim that it interferes with or regulates directly the federal government, because it's the federal government, of course, that does immigration law. So the even handed character of the statute is something that perhaps makes it, I think, more likely to survive preemption argument. But the point is a is, I think, a good one. Right? That when when a modern lawyer or layperson sits down to read the statute, it can be a little difficult to make sense of all the all the language there. If you have something in particular that you're concerned about, I'd happy I'd be happy to chat a little bit about that.

[Molly Nolan (Public witness, Democratism)]: No,

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: no, sorry. Thank you. We'll get to your testimony at the end. Did you have a question?

[Unidentified Committee Member (likely a Senate Judiciary member)]: Don't think so. I'm still trying to hash it out in my head, but your the Illinois law has some additional regulation and I'm wondering so I had asked a question of counsel why this uses the US constitution and not the state constitution, which is more effective. And is this the same issue that it runs into if we were to use the state constitution as it was would be viewed as regulating federal?

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: Yes. I think that's the problem, and that's the best argument for using the federal constitution as the baseline for federal government conduct here instead of trying to impose new state based restrictions on federal government activities. Yes.

[Unidentified Committee Member (likely a Senate Judiciary member)]: Thank you. I also just wanted to make sure I was processing the information correctly.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: I think you got it. Awesome. Thank you for your testimony. I suspect that I have some questions later on and I'll send you an email. Yeah, thank you for taking the time.

[Prof. James E. Pfander (Northwestern Pritzker School of Law)]: My pleasure. Good to see you all, and thanks for having me in. Good luck with your deliberations. Bye bye.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Take care. Talker. So I don't think we've seen you in this video in this session. I don't think so. It's good to see you all. Hope you're having a good year. Doctor. Jones, Park of Public Safety. Thank you for the opportunity to come in on this call. The issues of this bill as applied to federal officials is something that the Department of Public Safety doesn't have a direct interest in because we're obviously more focused on the impact of this on state and county and local emissions.

[Dr. Jones (Vermont Department of Public Safety)]: We have an indirect interest in monitoring that to understand, the same way you were interested in understanding the strength and viability of a state level cause of action against federal officials, but were really more focused on what the impact here would be on state employees. When this initially came up in the house, we suggested adding some clarifying language that the scope of liability here, although copied and pasted from the 1983 federal statute, could use some clarity to ensure that it was essentially coterminous with the liability exposure that already exists for state employees, municipal employees, and county employees. To that end, the two subsections on the second page were added to provide that clarity. Subsections

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: C and D.

[Dr. Jones (Vermont Department of Public Safety)]: That I think provides a fair amount of legislative direction and legislative intent, but the intent here is supposed to be that the liability exposure that is available for all, but specifically for our interest state, the local employees would be the same that is already at play for existing 1983 claims. And so I think it largely achieves that. Of course, there's always uncertainty of exactly how this would play out as it relates to the existence of nineteen eighty three claims to the federal level. Now we have this new state level cause of action. But there's a fair amount of clarity there. And that is coming from the perspective of, you know, these state level public sector employers and employees wanting some certainty that there's not gonna be some, you know, any significant change in the scope of civil liability. So I pointed out in the house, and I'll point out here, that language like that in subsection c and b is also suggested from a different angle, which is to kind of defend against potential constitutional attack on the federal level. And one of the submissions that was given to the house and was likely submitted for on the senate page as well is from Protect Democracy United, an advocacy organization. And in that memo, they recommended that basing the language in this cause of action based on California and Massachusetts would be excellent models for Vermont to follow and adopt, and then they go into explaining why. And one of their explanations for why is that both the California and Massachusetts bills provide explicitly that defendants have the same defense as available in federal nineteen eighty three actions, specifically to avoid obstacle preemption fact, basically a claim that is unconstitutional from federal angle. And they say it's highly likely that the US Department of Justice would argue that any Vermont law appearing to deny federal officers at least qualified immunity would be preempted by the federal interest and energetic, good faith federal law enforcement efforts efforts. Whatever the merits of that argument explicitly providing that officers have the same defenses they would have in federal section nineteen eighty three cases should sidestep any such constitutional attack. Just mentioned that because it's another angle to explain why there's some value in explicitly stating, as this draft does, that the scope of civil liability exposure, the defense is available, are explicitly the same that already exists in nineteen eighty three claims. I just wanna make sure I'm understanding it. So the the issue is that to avoid a claim of discrimination under the Intergovernmental Immunity Act or I'm sorry, Intergovernmental Immunity because there if there were different defenses available to different people in different levels of government. I don't know if I articulated that correctly, but to get Yeah. You know, I you know, the author of this protect democracy, and I'd add they go there's a few more paragraphs there that explain it. They're they're basing it under obstacle preemption, so perhaps not necessarily interpolitical unity. But, you know, that they were just raising that point that there's some value in explicitly stating. So, anyway, this bill currently does that in subsection c and a, and and the house took that up that topic up for that reason. And as a result, you know, theory at least, this bill, this proposed cost of action should not significantly augment or augment at all the liability that already exists for state, municipal and county employees. That is the kind of

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: hope and burden with that language.

[Dr. Jones (Vermont Department of Public Safety)]: But that's all I have to offer. We'll continue to monitor basically of interest, the same interest that you have of the viability of this as applies to federal officials. And I know you you likely have some additional witnesses or at least the house did on that topic, which I think has seen it valuable. And it is here. But as it relates to our focus on state employees and others,

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: I'm happy to see that explicitly for the day.

[Dr. Jones (Vermont Department of Public Safety)]: And that's all I have to offer. Any any questions for doctor? Okay. Thank you. Thank you, brother.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Thank you all. So I 'm not listed on the agenda, but we had two folks, I believe, from Montpelier who are also part of a group called Democratism, who had asked to testify. We've plenty of time. So if if you'd like to you're welcome to And then just please introduce yourself for the record as well. Okay.

[Molly Nolan (Public witness, Democratism)]: I'm Molly Nolan. Brought my changes to experience. And I think I'm going to amend. We ask for just by that. So my husband may have, something to add to this because, my points, I think Doctor. Vander addressed.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Sorry, could you also just identify what organization you're part of?

[Molly Nolan (Public witness, Democratism)]: Yes, democratism. I think it shares a lot of parallels perhaps with the organization that Mr. Jones was describing. And I did send an email to the committee members just referencing this orientation and the document that David Gold, the auditorium works that he has written. So my intent was to raise two points, concerns about the limitations or perhaps eight forty nine being too narrow. The first one was the invitation of the qualified immunity. I know that Professor Vander addressed this, but I think what I would like to hear from you is your response to that and a clarification of perhaps what you said also. And the second one was the second concern was the need to address the the authority who is who is allowing the federal overreach and and holding the authority on executive branch responsible for this in ways that are that have very specific legal consequences. So those two things, I think the clarification of this the the 49 has important the qualified immunity protection. And secondly, is there anything in August that holds our executive branch responsible in any irrefutable way. So those would be my points

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: to it.

[Molly Nolan (Public witness, Democratism)]: How would you like to add?

[Thomas Rowland (Public witness, Democratism; District 13)]: I think, not being identified yourself. Yeah, I'm Thomas Rowland, District 13. My only comment is the ability for an unconstitutional act through the executive branch, sending someone into Vermont. And that unconstitutional action against someone in Vermont, a citizen or a resident, is then allowed to happen because of immunity for the local police officers or local officers who do not want to agree to the unconstitutional law or the unconstitutionality of the federal government, but they're forced to do that because there's no ability for them to retract their agreement with it. They can't protest. They cannot say no, I will not do that because of liability for them. And so, if our officers here are not allowed to commit unconstitutional acts as well, it seems that the eight forty nine would be much stronger. So it's my understanding that the law, action could be sent back to federal court where federal court will easily dismiss it. But we want to keep it here in Vermont so it cannot be dismissed. So that those unconstitutional actions in Vermont by our law enforcement or whatever,

[Molly Nolan (Public witness, Democratism)]: can be made liable.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: You're welcome to.

[Thomas Rowland (Public witness, Democratism; District 13)]: I I don't know if that was legally it made any sense, but that's where I think the the weakness of the law lies.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: I do you have a question for Nancy here?

[Thomas Rowland (Public witness, Democratism; District 13)]: No. Does that question did did my comments make any sense?

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: I think so. I'm sure that I fully understand. The concern is that, I'm not trying to oversimplify. Is your concern that qualified immunity is a thing that exists?

[Thomas Rowland (Public witness, Democratism; District 13)]: Yes, under the current bill as written, there's implied immunity, which I think weakens the bill in terms of ultimately allowing our officials to reject what they've been asked to do, to reject ICE, to reject anything because that is unconstitutional. In other words, our executive branch is unconstitutionally sending people to our state and doing unconstitutional things and are asking our officers to comply with that.

[Molly Nolan (Public witness, Democratism)]: I think in a sense what we are concerned about is ultimate dismissal of any case brought, civil suit brought, by a citizen of Iran in federal court.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: So I I'm just trying to dig through my memory here. My understanding is that qualified immunity would apply regardless of whether or not it's clarified in this statute. But one of but, I mean, the ways best as I can remember, the way to pierce qualified immunity is that there's a clearly established constitutional right that has been violated by intentional misconduct. Those are the two elements that I can remember off the top of my head. Tucker, is that Resonant if you have nothing to balance the bond? Yeah, yeah, no. Violation and clearly established law. Yeah, it's a standard that allows, but you know, kind of overcome it in general.

[Thomas Rowland (Public witness, Democratism; District 13)]: Could someone give us an example of what's happening, an unconstitutional federal action in our state, and give us a scenario where this is how it will be thrown out which we don't want it to be.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Ordinarily we don't have witnesses going back and forth with questions. The general committee process is senators asking witnesses question. I'm not trying to be difficult here. It's just trying to maintain the same process that we have for every single

[Molly Nolan (Public witness, Democratism)]: Yes.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Understand. Senator Baruth, you had a question.

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: It was my understanding from the professor, Professor Fander, that qualified immunity had to be in the order that we would be unsuccessful or likely be unsuccessful if we didn't import qualified. Was that the way others serve it?

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: I mean, it's that's from what I know from my own experience is that it's going to that it's so you you would have the defendant make the qualified immunity argument at the beginning of the case to say this is why why I can't proceed, this is why it has to be dismissed. But I think that because the language is so old and did not and doesn't have any sort of provisions around qualified immunity to begin with. I don't know if just having it in the bill makes it more clear in order to avoid in order to avoid it being overthrown because it doesn't sorry. Overcurrent because it doesn't provide the same protections to different categories of people. But I don't know. I'm I I feel like I'm working my thoughts

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: on being present. Well, I'm looking at that section c. And the first sentence is any events available to a defendant under 42 US events. A and

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: three is likewise and to the same extent available in an action brought under subsection A in this section. So it seems to me that it's trying to situate itself within the existing framework of qualified immunity and not trying to overturn that as a way to make this monies look defensible. Is that fair to talk? Well, then I that's why I brought up the written testimony from Protect Democracy United, which is saying just that. It is highly likely that the US Department of Justice would argue that any Vermont law appearing to deny federal officers at least qualified immunity is preempted by the federal interest, energetic, good faith, federal law enforcement efforts, whatever the merits of that argument makes, explicitly providing that officers have the same defenses they have in federal section nineteen eighty three cases should silenestamp any such constitutional defendant.

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: So just to the point raised by these witnesses, I'm remembering post George Floyd, this committee considered remedies to excessive police action that proved fatal. And we were wrestling this question about qualified immunity, and we were wondering, could we get rid of the qualified immunity of mine? Set us from that whole effort, was that we could not. We were looking to work with things that were egregious enough that they exceeded the quality of the community. So my sense was that getting rid of qualified immunity was not a viable path, and so this takes that other route of looking at exceptions to qualified immunity. So I don't know if that's right or wrong, but it seems to me just if you step away from it, it would be difficult to imagine the Supreme Court allowing the states to strip federal officers of qualified immunity. I could see absolutely immunity being an issue by qualified immunity of the courts. Seems like it's that would be a dry hole.

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: Any other questions? Yeah, quick one. You had mentioned during your

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: testimony that qualified immunity by leaving it in the air, it would weaken the bill. Well, during that conversation, you had mentioned that Vermont citizens, which struck me as Strange versus the Vermont residents, are they both the same? Or maybe you could clarify what's your definition of Vermont citizen being

[Unidentified Committee Member (likely a Senate Judiciary member)]: a I

[Molly Nolan (Public witness, Democratism)]: I think anyone anyone who lives and resides in in Vermont, including an immigrant

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: who is undocumented. Okay. Thank you. Any other questions? We have, let your counselor back in here. Just, walk us through this one more time to make sure that we have a full understanding.

[Sen. Philip Baruth (Member, Senate Judiciary Committee)]: Alright. So we have

[Sen. Nader Hashim (Chair, Senate Judiciary Committee)]: we have two sixty one on the next TV. So if you got ten minutes till then, so we're great.