The following is my report that I delivered today in support of S.119, which passed on a 106 to 37 roll call vote.
Events across the nation have focused attention on police use of force. These events have focused our attention, as legislators, on the following question: What is the legislature’s role in overseeing and guiding police use of force in Vermont? Your House Judiciary Committee’s answer to this question is that our role is significant. When it comes to use of force, we must ensure that law enforcement is accountable to the citizens of Vermont.
It has been a long time since the legislature has played any role in this area, let alone a significant one. With S.119, the legislature fulfills its responsibilities.
The State created law enforcement entities and gave them certain duties. It gave them the duty to implement the adjudicative processes of criminal law – in other words, the duty to investigate crime, serve legal process, and make arrests and the like. It also gave law enforcement the duty to maintain public order.
The legislature has given explicit powers to State law enforcement. In 24 VSA 293, the legislature provided that a sheriff is to execute lawful writs, warrants, and processes. 24 VSA 302 provides sheriffs with the power to execute searches pursuant to warrants. 24 VSA 299 provides that “a sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary unlawful disorder.” 24 VSA 1931 allows municipalities to create police departments while 24 VSA 1935 provides that police officers shall have the same powers as sheriffs. 20 VSA 1914 provides that state police have the same powers with respect to criminal matters as sheriffs.
The Vermont legislature in the first instance sanctioned police authority, including the authority to use force. It is well within the legislature’s purview to limit that authority by setting standards for that use of force. Indeed, in its role in ensuring public safety, it is the legislature’s responsibility to regulate the powers granted to law enforcement, particularly the power to use force.
And it has done so in the past. Well, it has kind of done so in the long ago past. Subsection (3) of 13 VSA 2305 gave law enforcement broad authority to use deadly force. That provision states, in part, that a law enforcement officer will be guiltless if he or she kills or wounds someone “to assist in serving legal process, in suppressing opposition against him, or her in the just and necessary discharge of his or her duty.” This provision was enacted in either 1779 or 1787 and amended in 1840.
This aged language, to say the least, provides lax guidelines for police use of lethal force. It is in dire need of updating. Given modern U.S. Supreme Court cases related to police use of excessive force, this provision is likely unconstitutional.
S.119 would provide a needed update of statutory standards for law enforcement use of force.
The State has imposed duties on law enforcement that put officers into situations where they may need to use some level of force to meet legitimate law enforcement objectives or to protect the officer or another person. Because the State is authorizing the use of force, it also should lay the ground rules for that use of force. Those ground rules, or standards, will clarify what Vermonters expect of law enforcement when it comes to use of force. They will ensure that law enforcement officers are accountable when their use of force does not meet these expectations while allowing use of force when necessary.
S.119 would set forth standards for the use of force and the use of deadly force in statute. The Department of Public Safety and Executive Director of Racial Equity will then work out the details of implementing those standards in a uniform state-wide policy.
These statutory standards are modeled from legislation enacted in California in 2019, and also draw from law enforcement use of force policies in Seattle, Washington; Camden, New Jersey; Washington D.C; and Burlington and South Burlington, Vermont. The bill also draws from, and is consistent with, existing standards found in federal and state case law related to use of force.
Broadly, the standards provide that the use of force by law enforcement is lawful if it is “objectively reasonable, necessary, and proportional” and the use of deadly force is lawful if it is “objectively reasonable and necessary in defense of human life.”
SECTION BY SECTION ANALYSIS
Sec. 1 – 20 V.S.A. § 2368
This section creates the standards for law enforcement use of force.
Subsection (a) sets out definitions that apply throughout the statute.
Subsection (b) sets out the standard for the lawful use of force in policing. It describes the general policy that force should be used judiciously and with respect for every person’s right to be free from excessive use of force.
Subdivision (b)(2) requires that any use of force by law enforcement to achieve any lawful law enforcement objective must be objectively reasonable, necessary, and proportional.
As provided in subdivision (b)(4), the objective reasonableness standard must be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances. That subdivision also provides specifically that the analysis of objective reasonableness shall consider whether the officer failed to use feasible alternatives to force.
(b)(5) imposes a duty on law enforcement officers who know that a subject’s conduct is the result of a factor beyond the subject’s control, such as an impairment, disability, or language barrier, to use that information in deciding whether the use of force is appropriate.
(b)(6) affirms the right of a law enforcement officer to act in self-defense.
Subsection (c) sets out the policy for use of deadly force by law enforcement, which is force that creates a substantial risk of causing death or serious bodily injury.
(c)(1) describes when the use of deadly force is appropriate. It provides that a law enforcement officer is justified in using deadly force upon another person only when, based on the totality of the circumstances, such force is objectively reasonable and necessary to either:
- defend against an imminent threat of death or serious bodily injury to the officer or to another person; or
- to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.
(c)(2) provides that force is “necessary” when, in light of the particular circumstances, an objectively reasonable law enforcement officer would conclude there was no reasonable alternative that would prevent death or serious bodily injury to the officer or to another.
The remaining subdivisions under (c) provide that
- law enforcement shall cease the use of deadly force as soon as the subject is under their control or no longer poses an imminent threat,
- law enforcement must use reasonable efforts to identify themselves when feasible before using force,
- use of deadly force is prohibited against a person based on the risk that person poses to themselves and no one else,
- use of certain restraints, commonly referred to as chokeholds, are prohibited
- a law enforcement officer is required to intervene if they observe another officer using a prohibited restraint.
This section amends the justifiable homicide statute, the statute initially enacted in the late 1700s. It modernizes the language in subdivision (1). It makes the intent clearer in subdivision (2). And it aligns subdivision (3) with the new standards for law enforcement use of force.
As I mentioned before, currently subdivision (3) is likely unconstitutional, as it appears to provide protection for law enforcement that interferes with the constitutional protections against unreasonable search and seizure provided for in the 4th Amendment. The amended language in subdivision (3) provides that law enforcement are entitled to the defense of justifiable homicide if they kill or wound a person while using force that is in compliance with standards set forth in Sec. 1.
This defense is available to a law enforcement officer who uses a prohibited restraint in violation of the criminal offense that was created in S.219, which passed before the legislature recessed in June and was signed into law by the Governor. So, even though a chokehold is prohibited as a restraining technique, it may still be used where deadly force is justified, namely where a law enforcement officer needs to use it to prevent death or serious bodily injury to the officer or another person.
Sec. 3. Repeals of sunsets
This section repeals two sunsets imposed by S.219: 1) the sunset on the new crime regarding law enforcement use of prohibited restraints and 2) the sunset on the justifiable homicide statute that is amended in Sec. 2.
Sec. 4. DPS model policy
Section 4 directs the Department of Public Safety and the Executive Director of Racial Equity to report to the standing committees in February 2021 on the process and outcome of their work to develop a statewide model use of force policy for law enforcement. That process was directed by the Governor’s Executive Order Number 03-20, issued on August 20, 2020.
Law enforcement witnesses testified that they would prefer, instead of setting forth standards in statute for the use of force, that we should rely on a model policy to ensure uniformity in police use of force across the State.
This approach would shirk our oversight responsibility, our duty to create standards governing the use of force this body has authorized.
In addition, policies generally are not enforceable in court. Statutory standards are.
This fact is understood by law enforcement. The Vermont Criminal Justice Training Council is the entity that trains all law enforcement officers in Vermont on the use of force. In the Council’s training materials, it states that “a violation of a department policy can result in sanctions or punishments from your department,” but only if the policy mirrors the law can its violation result in criminal charges or lawsuits.
The possibility of criminal charges or lawsuits can help motivate compliance with standards for use of force and ensures accountability of law enforcement to Vermonters.
Because of its enforceability in a court of law, an enacted statutory provision would have far more potential to shape police culture than internal police regulations would.
This is not to say that a uniform state-wide use of force policy is not vital. A policy would provide the necessary details for police conduct to comport with the statutory standards.
S.119 provides guidelines for the use of force and use of deadly force in statutory standards while leaving to the Governor’s process the development and adoption of a uniform State policy for implementing those standards. To give time to the Department of Public Safety to develop that policy consistent with the statutory standards, the effective dates in Section 5 of the bill provide that the statutory standards take effect in January of next year. The remainder of the bill takes effect on passage.
That concludes my section by section overview, and now I will turn to a broader issue. In the absence of this bill, the legal standards that apply to law enforcement use of force in Vermont are set forth by courts, primarily by the U.S. Supreme Court, the U.S. Court of Appeals for the Second Circuit, and the Vermont Supreme Court.
For the most part, the standards in S.119 are the same as those set forth by the courts. The bill also includes important clarifications.
First, how should we expect law enforcement to deal with individuals whose conduct is the result of a medical condition, mental impairment or some other factor? Courts suggest that law enforcement should take such impairments into consideration when determining what force, if any, should be used in a particular situation. Subsection (b)(5) requires law enforcement to take this into consideration.
[Chamberlain v. City of White Plains, 960 F.3d 100 (2d Cir. 2020);Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted”); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (Where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining . . . the reasonableness of the force employed.”)]
Second, subsection (c)(2) provides that deadly force is necessary when, given the totality of the circumstances, an objectively reasonable law enforcement officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force. As the Vermont Attorney General testified, deadly force should be a last resort. The controlling case law is not entirely clear on this point. So, the language in subdivision (c)(2) makes it clear – under Vermont law, deadly force may be used only as a last resort.
[Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (“Graham thus stands for the proposition that a government office may not intrude on a person’s Fourth Amendment rights by employing a degree of force beyond that which is warranted by the objective circumstances of an arrest.”); Rogoz v. City of Hartford, 796 F.3d 236, 248 (2d Cir. 2015) (the jury “could well find that Watson had used more force than was necessary.”); Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 208) (“the Graham factors are not exclusive. Other relevant factors include the availability of less intrusive force. . .”); Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (“[Whether listed in Graham,] other relevant factors include the availability of less intrusive alternatives to the force employed … .”); Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994) (noting that “the availability of alternative methods of capturing or subduing a suspect may be a factor to consider” in determining whether a particular application of force was unreasonable; Estate of Heenan v. City of Madison, 111 F. Supp. 3d 929, 942 (W.D. Wis. 2015) (“The failure to use an alternative, non-deadly force is not dispositive, although whether such an alternative existed is a factual question that may weigh on a trier of facts’ ultimate determination of objective reasonableness.”); Becker v. City of Evansville, No. 3:12-cv-182-WGH-TWP, 2015 U.S. Dist. LEXIS 8414, at 37 (S.D. Ind. 2015) (“The availability of other means of apprehension presents a relevant consideration in the Graham analysis”). ]
In 2016, the Police Executive Research Forum, published the Guiding Principles on Use of Force.
In the words of the Chief of the Metropolitan Police Department of Washington, D.C., “The question is not, ‘Can you use deadly force?’ The question is, ‘Did you absolutely have to use deadly force?’ … And the decisions leading up to the moment when you fired a shot ultimately determine whether you had to or not.”
Which leads me to the third critical clarification in S.119 of existing court-created standards for use of force.
The definition of “totality of the circumstances” in subsection (a)(6) includes the conduct and decisions of the law enforcement officer leading up to the use of force. It is not entirely clear where the Second Circuit is on whether conduct leading up to the use of force should be considered in determining whether that use of force was reasonable. In a 1996 case, Salim v. Proulx, the court stated that the officer’s “actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.” In a case decided at the end of May of this year, Chamberlain v. City of White Plains, the Second Circuit came to a different conclusion, finding that conduct leading up to a use of force should be part of “the balancing of factors bearing on whether the offer’s use of force was objectively reasonable under the circumstances.”
At least two other circuits, the First and Third, have clearly stated that such conduct should be considered in determining whether the use of force was objectively reasonable. Other circuits disagree.
[Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999); St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995)]
S.119 clears up this uncertainty in Vermont. Police officer conduct leading up to the use of force should be considered.
The standards in S.119 should not change how most of our law enforcement officers already act in situations involving use of force. Police departments such as the one in South Burlington already have policies that largely comport with the standards in S.119. In his testimony before the Judiciary Committee, the main trainer on use of force for the Vermont Criminal Justice Training Council stated that they already train police officers in the use of proportional force and in de-escalation techniques, for example. Still, it is important that we hold law enforcement officers accountable to these standards by having them in statute.
Before I list the witnesses that the Judiciary Committee heard from, I will give a bit more background regarding the process that we undertook to receive input on S.119.
While the Committee considered S.119 in June, it became clear that many people in communities affected by police use of force wanted to weigh in on that bill as well as on other police reform efforts. To address that, the Judiciary Committee took advantage of the time that the recess offered and, with the Government Operations Committee, hosted three public hearings on S.124 and S.119. In coordinating those hearings, we worked with the Social Equity Caucus to ensure that we were reaching out to Black, Indigenous, and People of Color and disability rights communities to encourage their involvement. The Social Equity Caucus also conducted an online survey that, among other topics, asked for input on S.119. There were nearly 1500 responses to the survey.
When we returned from recess, to receive further input, House Judiciary invited 20 representatives of the BIPOC and disability rights communities to testify on the bill. We received oral and written testimony from seven individuals representing these communities. The Committee also heard from representatives of the law enforcement community and modified aspects of the bill to try to address their concerns.
S.119 Witness List
Attorney and Founder of MadFreedom, a psychiatric survivor rights organization
Executive Director, VT Human Rights Commission
Executive Director of Racial Equity, Agency of Administration
Executive Director, National Alliance on Mental Illness (NAMI) of Vermont
Movement Politics Director, Rights and Democracy Vermont
Councilor, Burlington City Council
Retired Defender General and Director of the Human Rights Commission
Advocacy Director, ACLU of Vermont
Representative from Northfield
Vermont Attorney General
Director, Civil Rights Unit, Office of the Attorney General
Assistant Attorney General, Vermont Attorney General’s Office
Commissioner, Department of Public Safety
Director of Administration, Vermont Criminal Justice Training Council
Chief of Police, Montpelier, and on behalf of the Vermont Police Association
Chief, South Burlington Police Department, and on behalf of Vermont Association of Chiefs of Police
Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs
State’s Attorney for Washington County
The vote in our Committee was 8-3.