Backers of a bill that would change the standard for when police are justified in using deadly force in Vermont say they are hopeful the legislation will be propelled by the officer-involved killing of George Floyd in Minneapolis and the outrage it has sparked.
Hundreds of people took part in protests in Burlington and around the state over the weekend as other protests and riots went on across the country over racial disparities in police violence.
However, Rep. Anne Donahue, R-Northfield, the lead sponsor of H.808, doesn’t believe that the renewed focus on the issue will mobilize Vermont’s lawmakers to pass the legislation this session, at least not as introduced.
“I do think this will potentially raise the profile of this enough to say, ‘We do have to get something moving in this regard this year,’” Donahue said Monday of her proposed legislation, which was the focus of a hearing that drew a large crowd earlier this year. The bill remains in the House Government Operations Committee.
The state’s response to the coronavirus and budget issues have taken up much of the Legislature’s time over the past two months. Police violence has been among many policy issues pushed to the back.
Protesters in Vermont and across the country have taken to the streets over the past week in response to the killing last Monday of 46-year-old Floyd, a black man, as a white Minneapolis police officer kneeled on Floyd’s neck for over eight minutes.
[Related: Why do deaths at the hands of police keep rising in Vermont?]
Rep. Kevin “Coach” Christie, D-White River Junction and chair of the Vermont Human Rights Commission, is also a sponsor of H.808. He said while he was aware that lawmakers need to spend time on Covid-19 matters and the related budget issues, he hoped that the measure, as well as others — such as improving data collection throughout the criminal justice system to help track racial disparities — would advance as well.
“The pieces of legislation around systemic racism and addressing those issues will probably rise, we would hope so,” he said Monday. “If they don’t, that’s not a good thing.”
Many law enforcement agencies around Vermont, including the Burlington Police Department and Vermont State Police, issued statements condemning Floyd’s killing. James Lyall, executive director of the Vermont chapter of American Civil Liberties Union, said those “same voices” have often stood in the way of police reforms in the state, including H.808.
“H-808 is just one example, one of the more recent examples,” Lyall said, adding that legislation aimed at addressing racial disparities and police violence have often been met with similar opposition.
“Any time there is a criminal justice reform bill, or certainly any time there is a police reform bill,” Lyall said, “there is a lot of testimony from police, and a lot of deference to police, and not as much to other voices.”
H.808 in Vermont is modeled after legislation approved in California last year changing that state’s legal standard for deadly force by a law enforcement officer.
Under that California legislation, which is considered the toughest standard for police use of force in the country, law enforcement in that state can only use deadly force when “necessary,” or when no other options exist.
Donahue said Monday that she didn’t expect when she introduced the legislation that it would sail to approval as is.
“It was never my expectation that the first year introducing a bill that would completely change the standard for police use of force would pass,” she said. “But it would be very much my hope that we would start in motion a process of evaluating that change.”
She added, “In legislative speak that means some kind of a working committee that would put the time and the energy needed to evaluate how it could be reapplied in Vermont.”
Gov. Phil Scott, in response to questions about the legislation during a press conference Monday, said he didn’t know much about the details of the bill.
“We are evolving as we speak and we want to take this time to reflect on what we’re doing, do it better,” he said. “I’m just not aware of the bill in particular and where it stands at this point in time.”
Michael Schirling, Vermont’s public safety commissioner, testified earlier this year on the legislation. The commissioner said at that time it was too soon to adopt a measure similar to California’s, 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.”
On Monday, Schirling said that remains his view of the legislation.
Attorney General TJ Donovan said Monday that he supports moving to the California standard, though he believed there were some pieces of the current legislation that needed further discussion. For example, in Vermont the current standard involves what a “reasonable person” would do, versus the term “reasonable officer” in the proposed legislation. That language difference, he said, is something that needs to be discussed to understand all the ramifications.
“I would certainly support engaging with the Legislature on this bill,” he said, adding, “Let’s engage in the process, let’s come out with a bill that changes the standard.”
A VTDigger analysis shows there were 17 fatal police encounters over the past decade. According to Vermont State Police statistics, there were five trooper-involved shootings in the state in 2019. That was one more than the previous year. There was one shooting involving a Vermont State Police trooper in 2017 and none in 2016.
Those statistics only take into account shootings involving state police, Vermont’s largest law enforcement agency, which provides the information on its website. Once investigations were completed, the troopers’ actions in all of them were deemed justified by the Vermont Attorney General’s Office and the county state’s attorney’s offices.
H.808 would establish a statewide policy, unlike the legal standard that is applied now in Vermont based on case law. That Vermont standard relies in large part on whether a reasonable person would have acted in the same manner.
According to the bill, 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.”
