A bill that would establish a tighter standard for when police officers can use deadly force was met with a message to slow down from two of the state’s top law enforcement officials.
The bill, H.808, is modeled after a measure that passed last year in California that changed that state’s legal standard for deadly force by a law enforcement officer.
Now, law enforcement in California can only use deadly force when “necessary,” or when there are no other options. The new law is considered the toughest standard for police use of force in the country.
Vermont Public Safety Commissioner Michael Schirling told members of the House Judiciary and House Government Operations committees during a joint session Tuesday it was too soon to adopt a measure similar to one in California without first seeing how it plays out in that state.
“Let’s hold fast and see what happens in California, because they have completely broken the glass on 50 years of case law relative to this topic, and we don’t know what’s going to happen,” Schirling told lawmakers. “So let’s see.”
Vermont Attorney General TJ Donovan spoke in favor of having a discussion around the proposed legislation, but added that key terms in the bill needed closer scrutiny and review before deciding whether it should be adopted.
“I fully support exploring this conversation, looking at California, talking with the lawyers in California, understanding what’s working,” Donovan said in his testimony.
He then told lawmakers to proceed carefully as they craft the legislation. “Words matter here, and they’re not yet defined,” he said. “And when you’re talking about legal state standards, definitions matter.”
Civil liberties advocates in Vermont have long questioned the state’s practices when it comes to use of force, with the American Civil Liberties Union of Vermont calling on lawmakers to adopt the California standard.
Rep. Anne Donahue, R-Northfield and the sponsor the legislation, said she read news reports about the California measure adopted last year and believed it was a proposal Vermont should consider as well.
“I thought, well, gee, that’s exactly what I’ve been thinking about for years that we ought to be doing,” Donahue said. “I think we ought to have a standard that’s a little bit broader in terms of context than just, you know, thumbs up, thumbs down.”
The bill would establish a statewide policy, unlike the legal standard that is applied now in Vermont based on case law that relies in large part on whether a reasonable person would have acted in the same manner.
Donahue said she understood that the bill would likely be changed before being adopted.
She added, “It’s more the concept and saying, ‘Look, here’s a good place to start the discussion, here’s a good place to look at for setting a state standard because it does take a broader context.’”
Donahue said while individual police departments in Vermont may have use of force policies, there is not one statewide standard; prosecutors rely on past case law when deciding whether actions are justified.
Donahue added that an increase in law enforcement deadly force cases in Vermont, including ones involving people in mental health crisis, helped prompt her decision to sponsor the legislation.
“It’s been on my mind for a long time,” she said. “This idea that that hair-split second when a decision is made is the only thing we look at in terms of, you know, was there justifiable fear – we ought to have something better than that.”
According to statistics from the Vermont State Police, there were five trooper-involved shootings in the state last year, one more than the previous year when there were four shootings involving state police troopers.
Of those five shootings in 2019, one was fatal.
There was one shooting involving a Vermont State Police trooper in 2017 and none in 2016.
Those statistics only account for those shootings involving state police, Vermont’s largest law enforcement agency which posts the information on its website.
In all those shooting, once investigations were completed, the troopers’ actions were deemed justified by the Vermont Attorney’s General’s Office and the local county attorney’s offices.
In a separate case in Montpelier last year, a Montpelier Police officer shot 62-year-old Mark Johnson in the torso, killing him.
The Attorney General’s Office and the Washington County state’s attorney ruled that use of lethal force justified. Investigators found that the officer feared for his life when Johnson waved what turned out to be a pellet gun, refused orders to drop it, and pointed it in the corporal’s direction during the early morning of Aug. 9.
“This is not based on a sense that there is inappropriate use of force in Vermont, I think we have a very high standard of professionalism,” Donahue said of her proposed legislation.
“But it is,” she added, “about the importance of public transparency and public confidence in the system of how we review those situations when they occur.”
The bill states that law enforcement officers may use deadly force only when necessary in defense of human life.
“In determining whether deadly force is necessary,” the legislation stated, “officers shall evaluate each situation in light of the particular circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”
According to the legislation, a police officer is justified in using deadly force only when that officer “reasonably believes” that the force is necessary to:
- defend against an imminent threat of death or serious bodily injury to the officer or to another person;
- apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury if that officer reasonably believes that the person will cause death or serious bodily injury to another person unless immediately apprehended.
Donovan, speaking outside the meeting after his testimony, said the current standard in Vermont involves what a “reasonable person” would do, compared to language in the proposed legislation that uses the term “reasonable officer.”
“This is complicated,” Donovan said of the language of the bill and its implications. “It’s incredibly nuanced, but it’s a conversation we need to have.”
Donovan, who has reviewed more than a dozen police shootings since taking office in 2017, has in each case found the officers justified in their actions.
It’s his office, along with the prosecutor in the county where an incident took place, who review all use of force cases and decide what a reasonable person would have felt if they were in the shoes of an officer who used deadly force.
