Stewart Ledbetter interviewed me about the impeachment investigation of the Franklin County State’s Attorney and the Franklin County Sheriff. See the interview here.

Vermont’s part-time citizen legislature meets from early January through mid-May. But even when the legislature is not in session, your representative’s work is not done. Off-session committees meet periodically, including the Joint Legislative Justice Oversight Committee and the Judicial Rules Committee on which I serve. Legislators also spend time helping constituents and may be appointed to serve on various study committees. And representatives often engage in informal work including discussions with advocates, other legislators, and legislative counsel (the legislature’s nonpartisan attorneys) to examine pressing issues and possible legislative responses.

It was during one of these meetings that I was recently reminded of the judiciary’s dire need for guardians ad litem, who act as advocates for children involved in court cases. I was on a call discussing a bill that would give children the right to testify in custody cases and the many factors that complicate such a procedure. A judge participating in this call noted that courts may allow a child to testify, but they must assure that allowing such testimony is in the best interest of the child. In addition, if a child is allowed to testify, the court must provide the child with a guardian ad litem.

As explained on the Vermont Judiciary’s website, a judge appoints a guardian ad litem “in every child abuse or child neglect case and sometimes in delinquency and other cases. The [guardian ad litem] makes recommendations to the court for the child’s best interests in and out of court until the case is over.”

Guardians ad litem are community volunteers. Typically, they meet with the child at least once a month; gather information from parents, foster parents, and other people close to the child; regularly communicate with Vermont’s Department for Children and Families and the child’s lawyer; attend all court hearings involving the child; and ensure that the court has all information about the child relevant to the case.

As I learned from the Chief Superior Judge, the courts do not have adequate guardians ad litem right now to be able to appoint one for every child in every case. Despite the courts’ efforts at recruitment, they are unable to meet the children’s needs.

Meanwhile, thousands of Vermont’s children and youth are part of proceedings in the courts’ family divisions. Many of these vulnerable children are victims of abuse or neglect or have been accused of delinquent acts. They may be in foster care while they face uncertainties about their futures. These children need someone to help them understand what is happening in their cases and to make sure their voices are heard. A guardian ad litem fulfills this role.

One does not need any particular education or professional background to be a volunteer guardian ad litem. The time commitment varies depending on the case and one can choose to represent one child or several. The guardian ad litem program is administered through the Court Administrators office and also has regional coordinators to provide support. New guardians attend a three-day training session and are offered ongoing training opportunities. If you are interested in this opportunity to make a profound difference in a child’s life, you can obtain further information and apply to become a guardian ad litem at www.vermontjudiciary.org/programs-and-services/guardian-ad-litem-program.

On the last day of this year’s legislative session, the House passed House Resolution 11, which created a Special Committee on Impeachment Inquiry. The Resolution recognized credible accusations of separate misconduct by Franklin County State’s Attorney John Lavoie and Franklin County Sheriff John Grismore. The Speaker of the House appointed seven representatives to the Special Committee and I was named as Chair.

The Special Committee is not a typical legislative committee. Its task is to investigate sensitive matters and decide whether its findings should lead to the impeachment of one or both of these elected officials. We have heard calls for the Committee to open its work to the public in full, but I am writing to explain that parts of the Committee’s work should not be done in public. Its work is not the equivalent of a civil trial, a criminal trial, or a pre-trial hearing. It is an investigation. The Committee is the equivalent of a prosecutor or a grand jury determining whether to bring an indictment. Such investigations are not done in public.

Investigations such as this one are kept confidential for several good reasons. Most fundamentally, confidentiality is necessary to protect the integrity of the investigation.

While the Committee’s investigation is ongoing, premature disclosure of sensitive information could lead to interference, tampering, or manipulation of evidence. By limiting access to information to those directly involved in the investigation, confidentiality reduces the risk of external influences and helps maintain the integrity of the process.

Confidentiality helps to ensure that Committee members approach the evidence and facts objectively, without being influenced by external factors or public opinion. When sensitive information remains confidential, the Committee can focus on gathering and analyzing evidence impartially. This promotes a fair and thorough investigation, preserving its integrity.

Confidentiality is also essential to safeguard the identities and statements of witnesses who provide crucial information to the Committee. For witnesses, testifying about traumatic events can be emotionally challenging, especially for victims or witnesses who have experienced abuse or other forms of harm. Testifying in a public session with numerous spectators can be intimidating and affect a person’s ability to provide an accurate and honest account of events. Testifying in public session can have significant psychological impacts on individuals involved in sensitive cases such as the ones the Committee is investigating, especially when their personal experiences are recorded and available online, subject to possible copying and rebroadcasting outside of their control.

Allowing witnesses to testify behind closed doors in executive session addresses these concerns.  Witnesses can share their experiences with the Committee without fear of intimidation or retribution. They can express themselves more freely and provide clearer and more reliable testimony. In addition, if assured confidentiality, additional victims or witnesses may be more willing to come forward to offer testimony and evidence. This promotes the flow of accurate and reliable information, enhancing the integrity of the investigation.

The rights of the respondents must also be considered. Preserving confidentiality prevents the unnecessary public exposure of potentially unfounded allegations or unverified information. It safeguards the respondents’ privacy and reputation until a thorough investigation is completed and wrongdoing, if any, is established.

The Special Committee has considered multiple precedents that support going into executive session to conduct parts of its investigation. Other legislative committees with investigatory powers, such as the House Ethics Panel, Sexual Harassment Prevention Panel, and Discrimination Prevention Panel, have even more stringent confidentiality rules and procedures than those for the Special Committee on Impeachment Inquiry. These panels conduct investigations and hear testimony in nonpublic settings, and rarely are the witnesses or the information gathered during those investigations made public.

Additionally, legislatures in Connecticut, South Dakota, and Illinois have recently conducted impeachment investigations. These states as well as the U.S. Congress have procedures requiring confidentiality and have conducted hearings in executive session during their investigations to determine whether to bring articles of impeachment.

Most on point, however, is Vermont’s own impeachment precedent. In 1976, the Vermont House Judiciary Committee held closed-door sessions to hear testimony from witnesses in the investigation that lead to articles of impeachment against Sheriff Mayo.

Chapter 1, Article 6 of the Vermont Constitution provides “that all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”

I certainly agree that the Committee is accountable to the people of Vermont. The people of Vermont expect us to ensure that elected officials who breach the public trust, who are unfit for office, are held responsible. To determine whether to hold them responsible through impeachment, the Committee needs to weigh credible allegations against the investigated officials. To do so, the Committee must conduct a thorough investigation and maintain the integrity of that investigation. And to ensure the integrity of its investigation, the Committee will need to, at times, take testimony and deliberate in executive session.

During the final weeks of the 2023 legislative session, the House Judiciary Committee focused on issues related to mental health in the criminal justice system. The Committee updated laws related to competency to stand trial and also set the stage for opening a forensic facility to secure certain individuals charged with an offense and facing a mental health crisis.

Individuals who have been charged with a criminal offense and are either afflicted with a mental illness or have an intellectual disability may not be competent to stand trial. The central question with competency is the defendant’s mental health status  at the time of the trial: a defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense. A person found incompetent to stand trial can be recharged with the crime later, if the person regains competency. This differs from a defendant being found not guilty by reason of insanity, which concerns their state of mind at the time of the offense rather than at the time of trial.

When a defendant’s competency is raised in a criminal proceeding, a mental health professional must perform a competency evaluation. Currently, it may take months before such an evaluation can be conducted. Such delays have existed for years, but were exacerbated during the Covid pandemic. 

Having to wait for a competency evaluation impinges on the defendant’s right to a speedy trial. Delays not only hurt defendants, who may end up awaiting trial in prison for a crime they did not commit, but also victims and victim’s family members. People naturally seek closure, and delays on the path to justice may cause further pain and harm. 

The legislature passed Senate Bill 91 to reduce wait times for the initiation of competency evaluations. At the present time, only a psychiatrist may conduct such evaluations. The bill would expand the availability of examiners by also allowing doctoral level psychologists with training in forensic psychology to conduct competency evaluations. 

The bill would limit the circumstances under which a court may order a subsequent competency evaluation.  In determining whether to order a subsequent evaluation, the court must consider any clinical evidence provided by the treating physician indicating that the defendant’s competency may have changed. The bill would also permit the court to issue an arrest warrant for a defendant who has received notice of a competency evaluation but failed to appear for it. Without any repercussions for failure to appear, many defendants do not show up for one or even multiple competency evaluations, at a significant cost to the State, and extending wait times. The bill would additionally ensure that mental health documents are expeditiously shared with the examiner conducting the competency evaluation. These and other provisions will help reduce the waiting time for evaluations, which also will help with the current overall court backlog. 

When a defendant is deemed to be incompetent to stand trial, the individual may be committed to the custody of the Department of Mental Health (DMH) or, if the person has an intellectual disability, to the Department of Aging and Independent Living (DAIL). Senate Bill 89 would lead to the opening of a forensic facility for certain individuals in the custody of DMH or DAIL.  The bill puts Vermont on a path to open a facility that would house individuals who have been charged with a violent crime, are deemed not competent to stand trial, and still present a significant risk of danger to themselves or others if not held in a secure setting. The facility would also house individuals who have been adjudicated as not guilty by reason of insanity. 

There is general agreement that Vermont is in need of a forensic facility. Vermont’s system of care does not account for individuals who do not need hospital-level care but do need intensive mental health support, sometimes including involuntary medication. A forensic facility would serve that need. 

The bill proposes to locate the nine-bed forensic facility within the existing Vermont Psychiatric Care Hospital, but several steps must be taken before the facility is ready to house individuals by the summer of 2024. DMH and DAIL will start a rule-making process related to the use of restraints or involuntary medication in a forensic facility. Also, a working group will examine whether commitment to a forensic facility is appropriate for Vermonters with intellectual disabilities and, if so, will propose legislation setting forth the procedures and criteria for considering whether individuals should be committed to such a facility.

More than 700 Vermont residents died of gunshot wounds in the decade between 2011 and 2020. 88 percent of those gun deaths were suicides. Of all firearm-related deaths in Vermont in 2021, 89 percent were suicides and eight percent were homicides. The 2021 suicide rate by all methods in Vermont was 20.3 per 100,000 people, compared to a national rate of 14.0 per 100,000 people. Suicide among Vermont men and boys is 50 percent higher than the national average. In 2021, there were 142 suicides in Vermont, and 83 of those (58%) were completed by firearm. Rand Corporation research estimates that in 2016, firearms were present in 47 percent of Vermont homes and in 32 percent of homes in the United States. Children are 4.4 times more likely to die by suicide in a home with a firearm compared to a home without a firearm.

These were some of the troubling findings that the House Committee on Health Care included in H.230, a bill that would implement measures to reduce suicide. That committee advanced three policies to meet that goal.

First, the bill would create a secure-storage requirement. It would require a person to securely store firearms in circumstances where a child or person prohibited from possessing a firearm is likely to gain access to them. If a child or prohibited person accesses an improperly secured firearm and commits a crime or causes harm with it, the owner of the firearm would face potential imprisonment or fine or both. To avoid impinging on a person’s right to self-defense, the provision would not apply if a firearm is carried by the owner or another authorized user or within such close proximity that it can be readily retrieved and used by the owner or authorized user.

Second, the bill would improve access to Vermont’s red-flag law, which allows a court to issue an Extreme Risk Protection Order (ERPO). This is a civil order that temporarily prohibits individuals who pose a danger of injury to self (including suicide) or others from purchasing, possessing, or receiving any dangerous weapons, including firearms. Under current law, only a State’s Attorney or the Office of the Attorney General may file an ERPO petition. H.230 would allow a family or household member to initiate the process for obtaining an ERPO by directly petitioning the court for an emergency order.

If a court issues the emergency order, it must hold a hearing within 14 days to provide the person against whom the order was issued an opportunity to be heard. At that point, the State’s Attorney or Attorney General would take over the case from the family or household member and become the party to the action. H.230 would make the process for obtaining an ERPO more accessible to those who are in the best position – family or household members – to know if someone is a danger to themselves or others.

Third, the bill adds a waiting period.  A person would not be allowed to transfer a firearm to a purchaser until 72 hours after the purchaser passes a background check or after 7 days without any result from the background check, whichever occurs first.

After the bill was passed out of the Health Care Committee, the House Judiciary Committee, which I chair, took testimony and worked on H.230. Although we considered other issues related to the bill, we focused on the constitutionality of the provisions, in particular whether they would run afoul of the Second Amendment of the U.S. Constitution.

In the Judiciary Committee, we heard from witnesses who testified that they believe the provisions in H.230 are constitutional and from others who believe that they are unconstitutional. Ultimately, as our legislative counsel testified, courts will have the final say. At this time, it is not clear how the courts binding on Vermont will rule on such firearms regulations. And it may not be clear for a while.

The Vermont Attorney General testified that she acknowledged that there were concerns about the constitutionality of any gun legislation in light of the recent Supreme Court decision in New York State Rifle & Pistol Association v. Bruen. But the Attorney General concluded that her office thinks H.230 is constitutional and urged the legislature to pass the bill.

I have no reason to disagree with the Attorney General. Indeed, we heard strong testimony that the provisions in H.230 for safe storage, improving accessibility to our red flag law, and implementing a waiting period are constitutional. As I fully explain in a post at martinlalondevt.com, I believe that the courts will find such provisions to be constitutional. In the interim, implementing these measures will save lives.

Under the Bruen and Heller opinions, the provisions in H.230 should be deemed constitutional under the Second Amendment. The Supreme Court’s test in Bruen, once again, is the following: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Starting with the Secure Storage provisions:

Under the Supreme Court’s test, we must ask what the conduct is that H.230 is regulating and whether the Second Amendment’s plain text covers that conduct.

The firearm must be securely stored when it is not being carried or in close proximity to the owner or authorized user.

The plain text of the Second Amendment guarantees the right to keep and bear arms.

As explained in the Heller opinion, to keep arms means to have weapons or to possess them.

The secure storage provisions in H.230 do not impinge on one’s right to have or possess firearms.

To bear arms, as explained in Heller, means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” It means to “carry weapons in case of confrontation.”

The secure storage provisions in H.230 do not prohibit an owner or authorized person from carrying a firearm in the home. It also does not prohibit an owner or authorized person from having a firearm in such close proximity that it can be readily retrieved and used. The bill also explicitly states that there is no violation if a child or prohibited person accesses and uses the firearm in self-defense or defense of another person.

So, in the first instance, H.230 does not impinge on the right protected by the Second Amendment.

Assuming that the conduct is covered by the text of the Second Amendment, one would look to whether the regulation is consistent with the National historical tradition of firearms regulations.  As explained in Bruen, (may I quote)

“(T)his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.”

“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”

There are analogous provisions related to firearm storage. For example, as recognized in a different context in the Vermont Supreme Court case, State of Vermont v. Misch, “Vermont’s 1863 gunpowder storage law, which required more than one pound of powder be securely stored in a metal canister, placed a burden on the ability to rapidly prepare and fire multiple rounds of ammunition.”

There are other Vermont and National historic regulations that are also analogous. But a court need not undertake that analysis because, as I explained, the secure storage provision does not infringe on the right to keep and carry a firearm for self defense.

The secure storage provisions in H.230 simply do not impinge on the Second Amendment’s right to keep and bear arms.

Moving to the ERPO provisions.

As stated in Heller, nothing in the Supreme Court’s “opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

Laws prohibiting possession of firearms by felons and the mentally ill provide apt analogies for the ERPO law, which bars an individual who is an immediate danger to themselves or others from possessing a firearm. Such laws aim to keep firearms from those who presumably may misuse them.

There are several dozens of historical laws related to limiting access to firearms by people deemed dangerous, just as ERPO laws do.

The ERPO provisions of H.230 should be deemed constitutional.

Moving to the Waiting Period provisions.

First and foremost, the best support for the constitutionality of laws regulating the sale and transfer of firearms is the limiting language from Heller that Bruen made clear to not disturb. The Supreme Court went out of its way to identify “laws imposing conditions and qualifications on the commercial sale of arms” as “longstanding” and “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

A waiting period would impose a condition on the sale of arms, not on the right to possess and carry weapons in case of confrontation and not on the right to keep and bear arms.

The plain text of the Second Amendment, as at least one court has found, does not address the sale and transfer of arms.

Also there are nearly 80 historic laws regulating aspects of sale and manufacture of firearms. There’s no shortage of historical analogs for courts to parse through if and when any provision of H.230 is challenged.

The best historical analogues are two laws from Maine and Massachusetts that regulated the sale and transfer of firearms by setting safety standards that any firearms sold needed to meet. Those laws are on the Judiciary Committee’s webpage. 

Notably, colonial government regulation included some restrictions on the commercial sale of firearms. In response to the threat posed by Indian tribes, the colonies of Massachusetts, Connecticut, Maryland, and Virginia all passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians.

At least two colonies also controlled more generally where colonial settlers could transport or sell guns. Connecticut banned the sale of firearms by its residents outside the colony.

And under Virginia law, any person found within an Indian town or more than three miles from an English plantation with arms or ammunition above and beyond what he would need for personal use would be guilty of the crime of selling arms to Indians, even if he was not actually bartering, selling, or otherwise engaging with the Indians. 

Citations for these laws can be found in the case Teixeira v. Cnty. of Alameda, 873 F.3d 670, 685 (9th Cir. 2017), which is on the Judiciary Committee webpage.

In short, the waiting period provisions of H.230 impose conditions and qualifications on the commercial sale of arms and should be deemed constitutional.

You all can feel confident that the provisions of H.230 have been well-drafted to withstand constitutional challenges and are good policy.

Regarding claims that Heller found firearm storage laws unconstitutional:

• This is an incorrect reading of the Heller decision, which made clear that it was not striking down such laws (see page 60 of the decision): “Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” Courts have subsequently upheld state secure storage laws,including the Ninth Circuit.

• Heller invalidated a law that required people, as interpreted by the Supreme Court, to keep guns unloaded even if under attack in their homes. That’s not what any secure storage laws do, as the Court itself recognized.

Since Heller, courts have upheld the constitutionality of secure storage laws.

The following is the report I delivered on the House Floor in support of H.230, an act relating to mechanisms to reduce suicide.

Your House Judiciary Committee focused on three main issues when we considered H.230.

First, we considered issues related to criminal offenses. We asked the following:  Were the elements of the offenses in the bill clearly defined and consistent with current law?  Were the penalties associated with the offenses consistent with current penalties? What issues might arise with respect to the enforceability of the offenses?

Second, we considered court process. This was a particular focus when we looked at the bill’s proposed changes to Vermont’s red flag law – a law that currently allows a State’s Attorney or the Attorney General to obtain an Extreme Risk Protection Order.

Third, our main concern was the constitutionality of the provisions. We analyzed whether the provisions would run afoul of the Second Amendment of the U.S. Constitution or of Article 16 of the Vermont Constitution.

As to the benefits of H.230 in addressing suicide prevention, we defer to the Committee on Health Care, although some of our witnesses discussed that issue. We did consider how the provisions would otherwise impact public safety, an issue within the Judiciary Committee’s jurisdiction.

Before reviewing the details of the Judiciary Committee’s strike all amendment to H.230, I will first provide a background for our analysis of the law’s constitutionality. I will describe the current state of the law related to the Second Amendment to the U.S. Constitution.

That amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court held for the first time that the Second Amendment protects an “individual right to possess and carry” firearms for the purpose of self defense. However, the Court did not indicate how the lower courts should evaluate firearms regulations going forward. Post-Heller, courts generally analyzed firearms regulations under one of two standards — intermediate scrutiny (where a law must be substantially related to an important state interest) or strict scrutiny (where a law must be narrowly tailored to serve a compelling state interest). These tests required balancing the state’s professed need for the regulation against the state’s encroachment on the right to possess and carry firearms. These are known as “means-ends” tests.

When the Judiciary Committee had considered firearm violence prevention measures in the past, we applied this means-ends balancing test.  We balanced important or compelling state interests against any restrictions to the right to keep and bear arms, and we would seek to narrowly tailor the measures to maintain a proper balance. 

But the Supreme Court recently discarded that test in the Second Amendment context. Last year in the case New York State Rifle & Pistol Association v. Bruen, the Supreme Court changed the legal analysis that is required to evaluate firearms laws under the Second Amendment. The Court expressly rejected any type of means-end balancing test, and instead said that going forward the test would be the following:   (May I quote from the Bruen decision?)

“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Since issuance of the Bruen opinion, courts have been using and will continue to use this test to review laws implicating the Second Amendment. And so far, the courts have come to divergent conclusions on how to apply the Bruen test.

The overarching question for courts and for us in applying the Bruen test is:  What types of regulations may be permitted under the Bruen test?  It is unclear if the 6 member Bruen majority even agrees on the answer to that question. Two justices who wrote a separate opinion in Bruen might join the three dissenting justices to uphold some firearms regulations that others in the majority would strike down. Justice Kavanaugh wrote a concurring opinion joined by Chief Justice Roberts emphasizing that a key holding of the Court’s earlier decision in Heller was still good law. Justice Kavanaugh explained:   (May I quote from the Bruen Concurrence?)

Properly interpreted, the Second Amendment allows a “variety” of gun regulations.

As Justice Scalia wrote in his opinion for the Court in Heller, . . .  ‘Like most rights, the right secured by the Second Amendment is not unlimited. . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

At least five of the current justices, then, could vote to uphold a relatively broad spectrum of firearms regulations.

In the Judiciary Committee, we heard from witnesses who testified that they believe the provisions in H.230 are constitutional and from others who believe that they are unconstitutional.  Ultimately, as our legislative counsel testified, courts will have the final say on whether the provisions are constitutional. At this time, it is not clear how the courts binding on Vermont will rule on such firearms regulations. And it may not be clear for a while.

It is more clear that H.230 is constitutional under Article 16 of the Vermont Constitution. In the 2021 opinion State of Vermont v. Misch, the Vermont Supreme Courtset forth a standard called the reasonable-regulation test for evaluating challenges under Article 16. Under that test, the Vermont Court will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the state’s power to protect the public safety and welfare. The provisions of H.230 would protect the public safety and welfare of Vermonters and should be deemed constitutional under Article 16.

The Vermont Attorney General testified that she acknowledged that there were concerns about the constitutionality of any gun legislation in light of the Bruen decision. But the Attorney General concluded that her office believes H.230 is constitutional and urged the legislature to pass the bill.

I have no reason to disagree with the Attorney General.  Indeed, we heard strong testimony that the provisions in H.230 for safe storage, improving accessibility to our red flag law, and implementing a waiting period are constitutional, both under the Second Amendment and Article 16 of the Vermont Constitution. Courts will have the final say, but we believe they should find such provisions to be constitutional.

Now, turning to the Judiciary Committee’s strike all amendment, found on today’s calendar at page 974.

Based on testimony and documents from the Department of State’s Attorneys, the strike all amendment adds five findings.  Finding number 8 provides recent information about the effectiveness of our red flag law. Findings 9 through 12 address certain issues related to public safety. Findings 9 and 10 note that firearms purchased in Vermont and transferred out of state contribute to violent crime in other states. Finding 11 notes that firearms are often acquired in Vermont through straw purchases, where someone buys a gun for another person who is not legally allowed to own one, such as felons. Waiting periods are shown to deter straw purchases. Finding number 12 notes that research has shown that waiting period laws can reduce gun homicides.

Turning to section 2 of the bill, which involves secure firearms storage.  The amendment grammatically changes subdivision (a)(1) for clarity.

Subsection (2) was revised to address a vagueness concern.  The bill as passed by Health Care stated that “This subsection shall not apply if the firearm is carried by or under the control of the owner or another lawfully authorized user.”  The term “under the control of” was deemed vague so we replaced that language to “within such close proximity that it can be readily retrieved and used by the owner or another authorized user.”

Skipping to the definitions section on page 977 of today’s calendar, the strike all amendment adds a definition at subdivision (e)(1) of authorized user.

Back to page 976. Subdivisions (3)(A) and (B) in the bill as passed by Health Care were listed as exceptions to subsection (a). The Judiciary Committee felt that rather than exceptions to the requirements for secure storage in subsection (a), these were more properly considered as actions that should not give rise to a violation of the secure storage requirement. This is admittedly a bit of a nuanced change.

Moving on to subdivision (b)(1), which the Judiciary Committee has struck. This provision would have imposed a fine on the owner of a premises for failing to properly secure firearms, whether or not the firearms were ultimately accessed and misused. This provision probably raised the most concern in testimony and the committee because it would be difficult to enforce. And there is a concern for privacy. The concern was raised that in order to enforce the provision, someone would have to go into a home and inspect the premises to see if firearms are securely stored. Striking this provision eliminates these concerns around enforcement and privacy.

Our strike all amendment provides that criminal penalties would only be applied for violation of the safe storage provision in cases when a child or prohibited person accesses an unsecured firearm and misuses it. Misuse means committing a crime with the firearm, displaying the firearm in a threatening manner, or causing death or serious bodily injury with the firearm. 

The other significant change to the secure storage provision in the strike all amendment relates to injury. Subdivision (b)(2) imposes a five-year felony if a child or prohibited person gains access to an unsecured firearm and causes death or, in the bill as passed by Health Care, injury to any person.  Under the Health Care Committee’s definition, “injury” would include a harmful effect on one’s health, including mental, emotional, or physical health, based on the misuse of an unsecured firearm.  And certainly such an injury would be possible. But this is not a recognized injury under our criminal laws, particularly for a felony-level offense. That definition is too broad. For a felony-level offense, the appropriate standard is serious bodily injury, which is defined in the strike all amendment through a cross reference to 13 VSA 1021(a)(2).

(2) “Serious bodily injury” means:

(A) bodily injury that creates any of the following:

(i) a substantial risk of death;

(ii) a substantial loss or impairment of the function of any bodily member or organ;

(iii) a substantial impairment of health; or

(iv) substantial disfigurement

In subsection (c), injury is changed to serious bodily injury. In addition, the word shall is changed to may to recognize the importance of prosecutorial discretion in such situations. A witness from the Department of State’s Attorney testified that subsection (c) was not necessary because a State’s Attorney would already consider whether to charge a parent in this situation. But we felt it was important to send the message acknowledging the trauma that a parent would experience in this situation while recognizing that the decision is within the discretion of the prosecutor.

Turning now to Sections 4 through 6 on page 978.

The intent of the Health Care and Judiciary Committees is to make the process for obtaining an Extreme Risk Protection Order (or ERPO) more accessible to those who know first-hand whether someone poses an extreme risk to themself or others.

As has been explained, an ERPO is a civil order that temporarily prohibits individuals who pose a danger of injury to self (including suicide) or others from purchasing, possessing, or receiving any dangerous weapons, including firearms. 

Under current law, only a State’s Attorney or the Office of the Attorney General may file an ERPO petition. They usually would seek an emergency, or ex parte, ERPO first. To obtain an ex parte ERPO, the court must find by a preponderance of the evidence that the respondent poses an imminent and extreme risk of causing harm to themselves or another person by purchasing, possessing, or receiving a dangerous weapon or by having a dangerous weapon within their custody or control. A hearing for an ex parte ERPO does not have to include the person against whom the order is sought. But, if the court issues an ex parte ERPO, it must provide that person notice that the order was entered and must hold a hearing open to that person within 14 days. After that later hearing, if the court finds by a higher standard – clear and convincing evidence – that the person is a danger to themself or others, it may issue an order that lasts up to six months. If an ex parte or final ERPO is issued, law enforcement will assist in obtaining weapons that the respondent must relinquish.

H.230 as passed by Health Care would allow a family or household member to initiate the process for obtaining an ERPO by directly petitioning the court for the order  A State’s Attorney or the Attorney General would also still be able to do so.

The Judiciary Committee’s amendment first changes the definition of “Household member.” In the bill as passed by Health Care, the definition cross references 15 VSA 1101. That definition would include anyone who has ever lived with or dated the person who presents an extreme risk of harm, which is extremely broad.  The committee’s amendment narrows the definition to include only those currently living together, sharing occupancy in a dwelling, dating, or engaged in a sexual relationship.

Turning to section 6 of the strike all on page 979 of today’s calendar. The Judiciary Committee’s new subdivision 4054(b)(1)(B) would provide the following:  if a court grants an ex parte ERPO that was initiated by a family or household member, the Court would notify a State’s Attorney or Attorney General, and one of these offices would take over the case. They would become the party in court in the action for a final ERPO.

Jumping back to section 5 of the bill at page 978. Instead of requesting a temporary ex parte order, the family or household member could instead directly file a petition for a final ERPO. Under new subdivision 4053(b)(2) in our strike all amendment, the State’s Attorney or the Attorney General would be substituted as the plaintiff in the action.

To obtain a final ERPO, the standard of proof to show that the person is an imminent and extreme risk of causing harm to themselves or another person is clear and convincing evidence. That standard would be difficult for a lay person to meet. This is the primary reason for substituting the State’s Attorney or Attorney General in a case seeking a final ERPO. 

In addition, once an ex parte or emergency ERPO is entered, law enforcement and a State’s Attorney or Attorney General will already necessarily be involved in the process for obtaining relinquished firearms.

The Judiciary Committee amendment also strikes what was Section 5 of H.230 as passed by the Health CAre Committee. With the substitution of the state’s attorney or Attorney General in the case, it is important that a family or household member files the petition in the county where the respondent resides or the county where the events giving rise to the petition occurred. The case shouldn’t be filed in the county where the family or household member resides if it is different than where the respondent resides or the events occurred.

In addition the Judiciary Committee amendment strikes what was Section 8 of H.230 as passed by the Health Care Committee. With the substitution of a State’s Attorney or Attorney General in the final ERPO process, and therefore as the moving party for any extension of the ERPO, the changes to Section 8 were no longer necessary.

Family or household members would continue to be able to go through a State’s Attorney or Attorney General to obtain an emergency ERPO. In many instances this would be a better approach given the expertise of those offices. But the amendment eases the way for a family or household member to initiate the process by going directly to court.

In short, the Judiciary Committee’s amendments to H.230 seek to make the process for obtaining an ERPO more accessible to family and current household members, those who are in the best position to know if someone is a danger to themselves or others.

72 HOUR WAITING PERIOD FOR FIREARMS TRANSFERS

Turning to Section 7 of H.230, which involves a 72-hour waiting period for the purchase of a firearm in Vermont. 

Last year, the legislature passed S.30, which, among other provisions, closed the so-called Charleston Loophole. In Vermont, anyone purchasing a firearm needs to undergo a background check. However, gun purchases can legally go forward under federal law after three days if the background check has not yet been completed. That is the “Charleston Loophole.” S.30 closed this loophole – under the bill, the purchase could not be made until the background check was final, no matter how long that might take. The Governor vetoed S.30. 

In response, the legislature passed S.4 with a compromise related to background checks. S.4 provided more time for completion of the background check, from 3 days to 7 days, but if the background check was not completed in 7 days, the firearm purchase could proceed. The Governor signed S.4.

Back to H.230, the waiting period provision in the bill as passed by Health Care would have inadvertently closed the Charleston Loophole. Under the bill, a firearm purchase could not go forward until the background check was completed and the purchaser was deemed not to be a prohibited person. To honor the compromise reached last year, the Judiciary Committee amendment would provide that the transfer of a firearm could proceed either 72 hours after the purchaser passes a background check or after 7 days without any result from the background check, whichever occurs first.

The Judiciary Committee amendment also addresses a concern related to gun shows. These shows often occur over a weekend, making it more difficult for a transaction to occur and for a purchaser to obtain a firearm under a 72-hour waiting period. The amendment would exempt purchases at gun shows from the 72-hour waiting period. This exception, however, would be repealed effective July 1, 2024.  This repeal would give the legislature time for further consideration of whether a person who has proof of firearm ownership and can pass a background check should be subject to the 72-hour waiting period. It would allow time to consider a method for firearm purchasers to be able to show that they already own a firearm.

We heard from the following witnesses:

1.              A doctor with the Pediatric Critical Care, University of Vermont Children’s Hospital

2.              Co-sponsor

3.              President, VT Federation of Sportsman Club

4.              Litigation Attorney, Giffords Law Center to Prevent Gun Violence

5.              Vermont Attorney General

6.              Government Affairs Manager, Lake Champlain Regional Chamber of Commerce

7.              President, Gun Owners of Vermont

8.              Student – Mount Abraham Union High School, representing GunSense Vermont

9.              Legislative Counsel

10.  Associate Regional Director of State Government Affairs, Everytown for Gun Safety

11.  Counsel, Everytown for Gun Safety

12.  Attorney, Vermont Department of State’s Attorneys and Sheriffs

13.  Supervising Attorney, Appellate Division, Office of the Defender General

14.  Chief Superior Judge, Vermont Judiciary

The Committee vote was 7-4-0.

H.230 provides meaningful measures to reduce the incidence of firearm violence in Vermont, particularly related to the use of this lethal means of suicide. There is strong support for the constitutionality of the provisions. H.230 is a solution that we should implement now. It will save lives while preserving Vermonter’s right to keep and bear arms. I ask you to support the Judiciary Committee’s strike-all amendment.