to the metal voice a returning guest the master the master of all guitars this the sky guitar and all the arrest yeah right the maestro really John Roth returning interstellar interstellar interstellar yeah interstellar so many cool things Uli so many cool things always a pleasure to speak to you I know you don't remember me from last time but it's always I have to say now looking at you I don't on the monitor the monitors big but you're just so and my vision isn't all that great so if we did come face to face I'm pretty sure I would remember you you're a gentleman when we you know but of course on the tour you do so many of these interviews and and a lot of them are like before the show after the show and sometimes I get really tired that not of the interviews I usually like the interviews but I get tired until it's a constant lack of sleep don't ask me why but the the rhythm is just you know really really not conducive to to get health so many exciting things you have a summer festival tours you have a north America tour I'm hearing new music you're talking about new music from others you're I think there's like this 10,000 page book you've written perhaps it's I I think it's but it's something like 600 pages or so you know big Tom first things first tell what tell us what people can expect on your north American tour which is starting I think in September what can what is what's the what's the mapping of what's what's it gonna look like it's it's different from from any to I've done before but it's got elements of what I've done before you know so it's different because it's actually up to the show consists consists of two very different halves and it's a three-hour show which sounds scary but I've been doing three-hour shows for a long time we have always had an intermission in the middle and you know and I don't think normally people get bored at least that's that's my perception of it you know although I don't really notice when somebody is leaving in the middle of 20 minute pizza solo which I can't blame them for but this so this show is is a three-hour integrated show and and the first half is called an evening with an evening with early genre and the way that came about was before COVID hit the world I was actually on a world tour which has had just started it started it ended in Europe never to be seen again and that tour was like a one-man show I was on stage where the huge screen there were pre-produced movies for for all the pieces I spoke to the the audience about a lot of it was music and there was a lot of music which was new music which I wrote for this occasion and also a lot of the stuff that I normally never get to play in my rock shows you know like orchestra stuff I had the orchestra on the screen and we played some of Vivaldi's four seasons and and a lot of my own stuff so in the first half it'll be an evening with but you did mention the book I will integrate like a 15 minute TED talk where I'm yeah I've never done that before but where I'm just introducing the book because it's quite I mean there's a lot to talk about in the book and it's impossible to put 560 pages plus a thousand photographs I hasten to add in diagrams into a 15 minute thing might it'll be a nice challenge and rather than being all complete I will just pick certain things and just the taste of of what it is just presented you know the books called in search of the alpha law and it's a book which is not about myself it's not about my life on the road or my life it is about my well my philosophy of life you know something which I've for my ever since the earliest Corp in Stays I was a closet philosopher I love I love thinking about things thinking deep thoughts not that I'm my shallow thoughts occasionally as well just like everybody but sometimes I go into this zone and then for me at least interesting things come out and a lot of that has to do with the inner spirit and architecture of music and the the laws of music which I found are the same laws that govern pretty much everything else that we see and perceive you know the if not the whole universe I think the these laws are these fundamental laws of nature and and even beyond that because they also apply to our mind and in our spirit our soul these laws are to me very fascinating to look at them and try to understand what they even are you know and it's not easy to put these things into words but I tried and I'm quite happy with the outcome so that's what what that is all about so the first half of the show has this TED talk but it has also quite a few new music pieces which don't really fit into the band format they're more orchestral they are very melodic free out throughout where the guitar is leading but I have orchestra backing and sometimes also I play solo pieces on a good and mine string flamenco sky guitar maybe some keyboards not sure yet anyway so that's the first time then we have an intermission so everybody can recuperate yeah well whatever I didn't want to go into such extraordinary detail but after the intermission it's a full-on ban show so I'm bringing my band because originally I didn't want to do that for the next North American tour but since it's been such a long time I think it's nine on four years now since we were last in your neck of the woods I'm bringing the band because I know like most of my core audience want to hear that and they want to you know get the full flow of also the my earlier musical existence including of course the Scorpions Electric Sun some sky of Avalon touch of Jimmy Hendrix it'll all be there and yeah and that rounds of the show you know wow three hours amazing I thought that sound just the TED talk alone I think is fascinating I'd love to see that I'm looking forward to that because it's a challenge for me it's something I've never done I mean I've been on stages kind of lecturing or talking about my musical philosophies you know and in my teaching seminars called Sky Academy but I've never really integrated into it into a show so it'll be interesting to see how that pans out but you know usually there's there's always a way I think it's it's a good idea and when it comes to it a way will open up and you know maybe on the first night it might not be so great but I'll tune in and I'll make it work somehow that's my job well if you need if you need moderators in Montreal me and Alan we'll lend our services and trust me it makes I've done moderations before it makes a difference when you have a moderator oh absolutely oh absolutely I was our application I wouldn't mind that at all because it takes a weight of my back you know I hate having to run the show like this I really want to concentrate on on the essence of it you know I'm not really an entertainer you know I've never been good at that or at least I don't see myself as an entertainer and the moderator can put a different spin on things you know so you're very welcome you know so but we haven't as far as I know we haven't booked Montreal yet although our agent is on it he's on on it regarding Canada because I originally he said no it's too far north and this and this and this and then I said no we got to do Canada you know and so now he's he's on it let's let's see what he comes up with yeah what were you gonna say I think you're amused Alan okay yeah it was just this book where I go down to the local bookstore am I gonna find in the spiritual section in the sorry oh you know I've got no idea because the because first of all all we have at the moment our test friends it's not yet on the market we will do our utmost to bring it to the market for for the tour you know in fact we have to somehow but it's not easy because you know I didn't I didn't actually plan on showing is it like a size of a family or something the book weighs two kilos no no it's 3.4 let me just get go get it go get it me and Allen stretch the time you know 600 euro shipping there you go nice love it beautiful love it it's huge and it's got all these musical diagrams with the colors of the notes it got it's got a layout which is in a thousand pictures all of which I've laid out myself you know and I've got an in design program and I wanted it to be a completely integrated experience basically not just a book about thought and philosophy and whatever I wanted it to be something that also tells a visual story and you can actually just leave through it look at the pictures and the pictures tell a story by themselves because they are completely interwoven with the text beautiful and I wrote it on my big monitor with the pictures and the book it was like one kind of seamless process and I don't know if anybody who did such a crazy thing so far maybe somebody did but it came out in such a way that I'm happy with it and it wasn't easy because there were at least three occasions where I tried to write it before and I did I wrote hundreds of pages but it was never quite happy with the actual how shall I say tone of it because a lot of it is delving deep into musical arcane kind of things like the metaphysics of music and to explain to somebody who doesn't play an instrument what an octave is or a fifth which for musician as bread and butter is not easy in words because words are very very limited you know once you hear the music it's easy you know you can hear it immediately translates into your heart and soul and your mind but to talk about it well I found that difficult and then eventually I think I found the way that it was happy with it was only possible because of covid so you know what you made a there you go it was only possible because of the lockdown because suddenly the tour stopped okay everybody said home called turkey and it was great for me because I haven't even been away from the road for such a for such an un-tarrupted time for many many years and I didn't realize but I had a little bit of burnout because I've just been traveling too much it was insane and so when I was at home you know at first I went why am I so tired I was kind and then I realized it was all coming out I needed time to recuperate then the next thing I know it's okay I gotta do something and then the book and you know also the lockdown I worked on that and you know and that was that when can people buy this well your guess is as good as mine we have to somehow produce it before the before the the tour and it's not easy and I'll tell you why not because if I go to a normal publisher nobody nowadays does books like that anymore it's a way to expensive if they print it like this just like this with a few numbers it costs like two or three hundred dollars a piece just to print you know so publishers would immediately say okay well you got to change this and this is not commercial enough and this and may hold by a different cover and I don't want any of that I well because when I'm doing an album nobody tells me oh you shouldn't have that song or I'll play that in a different key or so no I mean I'm the artist and I'm the guy yeah maybe my English isn't as good as as yours because I wasn't born with it but I wrote it in English and I'm sure it's good enough to bring this kind of message across and and and that's it you know so we are publishing it ourselves and it's it's basically it'll cost a fortune before the tour but we'll we'll somehow have to manage it yeah the plan is this several thousand in order to make it work really you know and then then if you say where can we buy it well it'll be online some of them will go to shops so the normal distribution channels you know and if you ask me which section it goes into I've got no problem I've got a trailer music yeah it's all of that you know it's it touches a lot of a lot of different subjects you'll be surprised when you're really because it's almost like a movie it develops and it goes into all sorts of things and get quite an arc to it so I wouldn't know where to put it you could put into almost anything and and get away with it you know which is great we will we will see now I think it is a kind of if the if you look at the essence of it it's it's all about you say is it maybe in the spiritual realm I would yes I say yes because it's it's all about finding yourself through the looking at the world through the eyes of music through harmony rhythm or lack of harmony the opposite or this harmony sounds very tried now but it isn't when you go deeper into this you know I because I tend to look at the world in musical terms and although that doesn't maybe make a lot of sense to people when they just when I just say it when I explain it you may get what I mean and I think this kind of this way of thinking can be quite helpful for other people music has really expanded my mind and my way of being and I think it has the power to even turn you into a better person if you want to become a better person and I always think that's something to really strive for because we've all had a long way to go and now respect you know is Monica do you talk about Monica in the book or just a little bit yes of course because Monica was very much a key to my for myself to find my myself my own way she was like a muse she was extremely inspiring person and I'm there are some sections I'm talking a lot about art also painters painting the connection between painting movie making and music of which there are many because the laws of composition are kind of the same for every medium if you break them down to the main points it's always a play of energy you know energy and where is the root note of something where is the central focus and how all the other elements connect to it yeah just like in a solar system where you have the sun and then you have all the planets around and they're all in different orbits this is very much like music to me Western music has always has a root note or at least normally has a root note and that root note is like the central element the center of gravity and all the other notes are spaced in different orbits around it and the further away they are and according to which ratio they they are related to the root note you have certain you have certain power structures it's like a journey from step to step and each of this these steps which are like musical notes like scared you know each of them has a different meaning and the beautiful thing is that this is all like pure mathematics but we as human beings have the amazing ability to translate that into emotion right away and we're kind of all feeling very much the same thing you know if you play a major chord to a little child a baby you might get a smile you know if you play a very dissonant chord you know you might might even get a you know something like this very sensitive to that and and we all call we can desensitize ourselves by constantly playing tritons you know like in super heavy metal or in or in Schoenberg's 12-term music but it's basically the same as if we're constantly eating overspiced food you know like in curry times 10 you know fresh but Vindaloo and then lots of it or Mexican whatever or Thai like burning Thai spice I I shy away from these extremes normally they are interesting but in music to me I tend to gravitate to two beautiful two beautiful harmonies melodies most of the time sometimes it's important it's also very it can be very powerful to bring some ugly elements into music particularly when you are depicting ugly things just like to like you know I've got one track which is you know you know I love about you you're the last purist you're the last purist musician on the planet you know your last guy I don't last no I think you are you know of this of this generation and there's nobody left now it's all just cracking in crank it out you know what do you mean with pure I don't know like you know you put art before anything else whereas others put everything else before everything else that I mean life and our life is more important you know like yeah like the health or so but you are right art for me is or true art what I would call true art now people can of course argue about what that is or what it isn't but to me it's got a very very high position and what I think is important and not just for myself I think it's important for for humankind because art is it's like if you can sit up mankind to be like a tree with which is blooming flowering and producing fruit then art is one of the finest pieces of fruit that we can bring forward and like if you have art which was produced by a genius like they don't know Michelangelo this is renewing itself in every generation this gentleman died like 500 years ago and still his is art moves people my daughter was just in Florence she's 24 so what did she go because she went to see Michelangelo's David like I did when I was 15 you know and these things are unforgettable if you and if you are able to receive the wavelengths of what you see and you understand or you feel the greatness of it not just the artistic achievement but what's really inside of it you know like I remember my dad brought me to St. Peter's and the big cathedral in Rome which is breathtaking and I was 15 years old and he showed me the Michelangelo stuff and then there was the pietà which is like the an amazingly beautiful rendition of the Madonna with the dead Christ she's holding it like a child and I will never forget the impact it had on me because it was like so strong that I could just feel the greatness isn't even the right word and it was much more in it you know it was almost like inspiration yeah he did that when he was 25 and he did it out of a block of marble you know think the book you know I mean I can paint pictures in oil but to do something like that in 3D with a block of marble in the chisel and make it look better than the original say you know no that is some some amazing achievement and yeah art over the centuries is like a story itself it's an extremely important part of mankind and if you take it away we are the poorer we get because it can elevate us it can make us it can help us to be more focused it can inspire us and all this if we let it and if we if we let that happen you know and then if some people say well they're just they're just artifacts and images you know and we have different problems yes we have different problems with global warming you know but is it a good idea to throw some tomato juice on it or so I don't think so no just to prove a point I mean I'm the first guy who would say who would say yeah let's do it let's I mean the the environment and all this is should be our major concern particularly nowadays but there are many ways you can express these things you know and I think art is exactly one of the things we shouldn't tamper with because there isn't even enough of it you know and I find that the generations the younger generations of today are they're very oblivious to a lot of these things because they I call it the iPhone generation they grew up with Snapchat and all this the piece of art is their own photo you know and hello look at me and which is a piece of art in a way but we're missing out by sidelining all these treasures from the past and saying oh this is just stuffy whatever we are the ones who are missing out if we don't cherish them and protect them and and really understand the the importance for for mankind as a carrier of inspiration and as also as a token of what we can do you know yes we are able to produce warfare and bloodshed in in Ukraine you know we can destroy entire continents with atom bombs but we can also do these things so it's not all bad just these things are extremely important as a counterbalance to all the other madness which is primitive and at a very low level of frequency mental frequency spiritual frequency great art is at a very high frequency like love um it doesn't get any higher than the frequency of love great pieces of art have so much love in them it's you know because these artists these great artists they were people who had that and they carried that that in a light and it ended up in say a Pieta by Michelangelo or in Beethoven's Ninth Symphony you know and uh and woolly woolly we're gonna have i can hear you i can listen to you talk like all day long but all day long you shouldn't have asked about the but i but but we do have to go and we'll do a part two on this we'll do a part to do great at the ted talk section of your performance you're gonna have their source player i can already see it you know i'll start in half an hour later somebody say yeah but what about the music and stuff like well you talked about the music you talked about it you know we're gonna do a part two we're gonna do a part two since yeah let's do a part two because normally i do interviews that are longer than half an hour because once i get into it you know you just get you're just getting warmed up i'm just getting warmed up guys you know we weren't sure about the time and we had to put in the pot so we're really hoping a Montreal date will be added to that tour we're anxious to see you yeah me too i'll i'll talk to the agent tonight and and i'll tell him we we need to do Montreal you know as long as it starts to come which it isn't that shouldn't be a problem no there is also a nice theater in Montreal which i remember i forgot what it was but we played there once and i i like that one willy don't worry this show goes out to everybody in north america and globally so we got you covered in regards to okay well now yeah now instead of the talk the spiritual stuff you know but you brought that out i didn't actually well i want to know we want to know these things we want to know these things you know it's interesting to me you know we'll do we'll do another one closer to the tour dates we can do another show yeah we can do another yeah really thanks so much i know i thank you thank you so much for your time all right talk to you you're welcome have the best good luck


Would you rather pay $650 or $66 for a smartphone? Simple.  Better service, bigger savings. That's today's Appalachian Wireless. One in five unvaccinated Kentuckians say they are open to getting the COVID-19 vaccine. According to a new poll from the Foundation for a Healthy Kentucky, the state's hospitals are filled with COVID patients and, according to Governor Andy Beshear, about 90 beds are left in intensive care units. 66 Kentucky hospitals report critical staffing shortages, and at least two dozen will soon receive backup help from the National Guard. Foundation for a Healthy Kentucky CEO Ben Chandler sees the poll results as encouraging, showing there are still people open to learning more about the vaccine so they can be better protected against serious illness and death. That's really good news, I think. We've got a chunk of people there who have yet to be vaccinated but who plan to get vaccinated. State data show the week of September 12th, the state's seven-day average COVID-19 positivity rate was 13.88 percent, the highest recorded since Kentucky had adequate testing supplies. In the poll, one in three Kentuckians reported always wearing a mask in outdoor crowded public space. More than one-quarter of those who have received the COVID-19 vaccine say they never wear a mask, while almost four in ten who are not vaccinated say they never wear a mask. But the vast majority, 70 percent of Kentuckians think that the kids ought to wear masks in schools if they're not vaccinated. While some are keeping an open mind, more than one-third of the unvaccinated people surveyed said nothing will motivate them to get the shot. Around 14 percent of unvaccinated respondents say they want more time and research to be conducted before they'd roll up a sleeve. So Chandler says it's important communities focus outreach efforts on those individuals. And I think we need to reach out to those people and make sure that they know that these shots are available and let them know how they can get the shot. He adds the foundation for a healthy Kentucky is offering $20,000 mini-grants to help local groups create new or expand. This is Nadia Rom-Lagan for Kentucky News Connection. Find our eight trust indicators to support transparency and accuracy at publicnewservice.org.


Good morning and welcome to House Judiciary Committee. It is Thursday, February 11th, and we are continuing our discussion on H145, an act relating to amending the standards for law enforcement use of force. And committee we're gonna be hearing from the Department of Public Safety first with some proposed language changes to H145. And Martin is gonna point us out to, I believe we have a highlighted version. Yeah, it's under today and it's under my name, H145, introduced with highlights. So it has the highlights of what changes from the current law or from 119 that was passed. So that can be found on the judiciary website now. Okay, great. Thank you so much. So I'll give folks a minute or two to get that. And then we'll start with Jed Morrison. Thank you and good morning, Madam Chair and members of the committee. My name is Jennifer Morrison. I am the Executive Director of Policy Development for the Department of Public Safety. And we would like to express our support for what we believe are improvements to S119 as found in the current version of H145. We would like to also request three additional improvements. One would be to clarify and make consistent the implementation dates at the very end of H145 with a implementation date no sooner than September 1st of this year. The second improvement or clarification that we would request as written H145 continues to be missing language that acknowledges the use of a prohibited restraint being permissible when lethal force is justified. As I mentioned at our previous hearing or meeting this morning, we don't believe that the changes made in the justifiable homicide statute are sufficient. An example of this would be if an officer is involved in a struggle where lethal force is justified and instead of resorting to a firearm, the officer uses a prohibited restraint and the incident is resolved without serious bodily injury or death. That officer would still be facing a 20 year felony and decertification for having opted to use a prohibited restraint instead of going to their firearm. We would ask that specific language be incorporated into this statute because as you know, and as you have directed this statute forms the backbone of our statewide policy. The third improvement that we would request is at the beginning of section B5. We support the spirit of section B5. We understand the spirit, but as written it is still rigid and does not acknowledge that there are instances when time and information do not allow this level of analysis. So we would ask that the following language, it is four small words, be added at the beginning of section B5 to the extent feasible comma when a law enforcement officer knows and then leaving the rest of the section as it is. Those are our three requested improvements and I will be here for the rest of this meeting and happy to take questions, but I know you have a lot of other witnesses to call in. Yeah, thank you. I appreciate that. I see Martin's hand up and also I know at our last meeting, can you had your hand up? So I haven't forgotten you. So put it up if you still wanna ask your question. Go ahead, Martin. Yeah, if you could, Jen, if you could actually go through, I think there's three primary changes that we have in H145 relative to what was passed as S119. And these are changes that we work with you to put into here. And if you could walk through those three primary changes and just explain the rationale and why you have proposed that and why that language is in here. And I may have a couple of follow up questions. Sure. I might get these out of order. You might have to be my tour guide a little bit. I wasn't prepared to do this, but the prohibited restraint definition is changed from S119. The language in S119 is an incredibly broad when it references any maneuver or technique that may hinder breathing or flow of blood, et cetera. There's a lot of things that may. And in fact, I think we had the conversation, pepper spray is a very effective tool and it is intended to hinder people's breathing to some degree. So changing that language, I believe, sir, that you settled on language that mirrors the legislation that just came out of Massachusetts in terms of being consistent with what their statute says. And we believe that H145, the new language is more clear. It provides better direction as to what law enforcement can and can't do. And again, it all comes down to being able to train to this and this is a clearer standard than what exists currently in S119. The second change is also in the definition section under the totality of the circumstances. As written in S119, the definition only includes the conduct and decisions of the law enforcement officer leading up to the use of force and all facts known to the law enforcement officer at the time. And in our conversations, we pointed out to you that that is absolutely not the totality of anything if you're only considering the actions of one piece of an incident. So we requested that following the word law enforcement officer that the person or persons involved and any bystanders leading up to the use of force so that the totality of the circumstance includes the conduct and decisions of the police officer or officers, the person or persons involved and bystanders. So that would be the second change in H145. The last one that I believe is a substantive change is in section B4. It's on page three starting at line 16 and it is the addition of the words, five words without the benefit of hindsight. So the statute would now read whether the decision by a law enforcement officer to use force was objectively reasonable shall be evaluated from the perspective of a reasonable officer in the same situation based on the totality of the circumstances without the benefit of hindsight. We requested this because it is a crucial element of not only fairness but consistency with the sources from which this statute appears to have been drawn. The Seattle police policy absolutely states this explicitly. California state law states it explicitly and it is in fact the part of the definition that the US Supreme Court has given us. So adding without the benefit of hindsight was at our request and we feel it is an essential component to providing clear guidance as to how we will evaluate the reasonableness of officers uses of force. So that I believe those are the three primary changes and if there's more, I'm sure you can chime in. No, those are the ones, thank you. Great, thank you very much. Ken. Good morning, Jen. What, I asked this question the other day and I'd like to know what you consider this. What do you consider bystanders? So bystander in the context of a use of force is anyone that is close enough to an incident to a potential encounter that might involve force with a citizen that their presence or behavior might alter the course of events. So I think we described earlier that if you're trying to take someone into custody and a crowd starts to form and anyone who ever worked North Street back in the day or church in Maine at bar closing even at any time other than COVID knows this is a very real situation that if you are trying to take someone into custody and a crowd forms and the crowd is turning hostile and the crowd is starting to throw things and the crowd is closing in and making physical, closing the physical space. It necessitates a quicker extrication from the situation to get not just the person you're taking into custody safe and into the back of a police car but also the officers. Likewise, there are times where bystander behavior would take some force options off the table if we were encountering the same or similar situation of a person who is armed with a knife or a sword as the commissioner used the example of which was from the true annals of BPD days. And there's a crowd forming behind the person who is swinging a sword. It takes use of a firearm pretty much off the table at least from certain angles. So bystanders in the context of use of force are anyone whose presence, physical presence or behavior is impacting the course of events. So safe to say that that officer is going and trying to get the situation under control and then he's got all these extra people that's all around that could really elevate the situation at hand plus his own safety plus who he's trying to or he is trying to get under control. Yes, it's all those things. And it's every situation is unique. That is one thing about use of force. There has never in my career been two situations that were exactly the same and precipitate the events that precipitated or the actual duration of the use of force event. Again, it's part of the context and the backdrop against which uses of force may take place. So that's how we would define it. I hope I answered your question about bystanders. Yes, perfectly. Thank you. Martin, Martin and then Barbara. Yeah, so I have a couple of questions. So starting with the totality of the circumstances. So it seems to me that the person or persons involved in any bystanders. Wouldn't that be subsumed in just all the facts known to the law enforcement officer? Isn't it important that it's like, we want to understand definitely the conduct and decisions of the law enforcement officer. And then we want to know all the facts known to that law enforcement officer, which would include what he knows about the persons and the bystanders and such. So I'm just, I'm not opposed to this language one way or another. I'm just really trying to understand. Well, with respect, sir, the totality of a circumstance can never be just the conduct and decisions of one person if there are two or more present and engaging. No, I understand that, but let me make sure my question was clear that that would be subsumed in all the facts known. And it's most important. It's not really, it's the facts known to that law enforcement officer regarding that person's, the subject I'll call him or her, the subject's behavior, the subject's conduct. It's really most importantly, what the law enforcement is perceiving. That's part of the facts. The same with understanding that there's all these bystanders around the situation you explained. The key part of that is, what were the facts known to that law enforcement officer? Is that not correct? So why do we need to have this additional language of the person or persons involved in any bystander? If I may, Madam Chair, Mike Scherling, Commissioner of Public Safety, a flag for representative Lawn that what you're describing is the existing state of the law, of case law. The legislature chose to add language that specifically calls out the conduct of the officer and now of the subject to fix that. But in the absence of specifically stating bystanders, it is ambiguous. A court may say, well, if it's totality of the circumstances, why did the legislature specifically call out the conduct of these two parties, but not the other parties? So it's clarifying language to ensure that when this is interpreted a decade from now, this conversation, that it's clear. All right, so just, and that's probably a good explanation for it, but just last summer we went back and forth of adding, we had a whole list of the different kinds of facts that should be considered that whether it was known to the officer or not.  So we're just gonna have this broad term of the facts known to the law enforcement officer. And again, I would argue that that would include, what did the officer know about the conduct of the subject and bystanders? I think this is like belt and suspenders having this in there. So I'm fine with it, but I did wanna raise that and let you respond to what I suggested. And I understand that what you're saying is that clears up a potential ambiguity. I'm not necessarily, I don't know if that's clear, but all right, Glenn. Another way to address this would be next to the totality of the circumstances at a comma to include the conduct of all persons present, including the officer, comma, and then you could take out the other section. Yeah, that would probably actually narrow it too much because the facts could be any number of other issues from what I understood from testimony last summer. So I just wanna put that out there. Again, I'm not arguing against this language. I really am not. I'm just trying to make sure I fully understand the implications of it. So unless you had something more on that, I just wanted to jump to the subsection before for just a moment. Should I jump or did you have anything more on that? Okay, so without the benefit of hindsight, and I know Jen and you and I have had this discussion. I also had this discussion with Chief Burke and I do wanna get you to weigh in on my concern with that language. First of all, I do understand that courts say without the benefit of 2020 hindsight and that's something that is said, but I'm trying to square that with the standard, which is a reasonable, and I'm looking at B4. This is on page three of the document. And B4, let me make sure that that's where I wanna be just one second. So in B4 talks about the objectively reasonable officer, shall be evaluated from the perspective of a reasonable officer. That's the key language there. So you have a situation where law enforcement officer is in some use of force situation and afterwards you have to look at, yes, the facts that were before that officer at that time of that situation. But don't you have to kind of put into that officer's shoes the reasonable law enforcement officer? I mean, is that not some form of hindsight that you're looking back to, you're saying, yeah, we're gonna take the facts just as they were perceived, but we need to look at those facts for a different set of eyes, which is the reasonable officer, which that officer may or may not been the reasonable officer. So if you could comment on that, and that's a question I had for Chief Burke because actually Chief Burke had a very good explanation for me when I talked to him, but that was an issue that I think we just need to flesh out. So I can't say what he said and he done. I think you're conflating reviewing uses of force with the concept of hindsight, meaning that you in your review of the use of force, you are now able to take into account information and factors that you now possess that the officer on scene did not. So there's a difference between applying hindsight to a situation and reviewing it for appropriateness by evaluating from the reasonable officer standard. And I cannot say strongly enough how unfair is not the right word, but how inappropriate it is for reviewers of force to sit in a sterile environment and take into account information that was not available to the officer at the time or images that are now known and seen that were not in the officer's perception at the time, that the officer did not see or hear at the time the force was used. So I hope I've answered your question, but there is a definite distinction between reviewing uses of force, which we do every single use of force, everything beyond compliant handcuffing gets supervisory review and then evaluating whether or not an officer's actions were reasonable by allowing for hindsight, which implies including information that may not have been known at the time the force was used. So I'm gonna expand that. I think I understand what you're saying on that, but the other issue I guess with respect to hindsight, I mean, if that language was not there and if you look then back at totality of the circumstances, the conduct and decisions of the law enforcement officer, the person or persons involved, is there a danger of there being hindsight in looking at the conduct or decisions of the persons or persons involved? So again, maybe I am struggling a little bit with with the totality of circumstances the more I've been thinking about the person and persons involved. Yes, their conduct and decisions are important, but only to the extent that they're part of the facts known to the law enforcement officer. And maybe I'm confusing this, but so maybe having that hindsight language there means that you can't go back and say, well, this particular subject made some poor decision that the law enforcement officer actually on the scene didn't really know about. I think I'm babbling and confusing. I apologize, but I'm... I think you're conflating the two areas. And when we go back again to the totality of the circumstance, again, I'm gonna say we train law enforcement officers to respond to behaviors, right? We don't train them to go out and use force on people who have not presented a dangerous behavior that needs to be addressed, right? So it is absolutely not the totality of anything to not include the stimulus that is provoking a response from law enforcement in the totality of the circumstance definition. We respond to behaviors. Right. So I guess that's all I have to say about the totality of the circumstances to leave out the behavior of the person upon whom force is used is not a fulsome definition of the totality. It's not, it's the partial partiality of the circumstances perhaps what it should be called by leaving out the persons involved and by standards. Yeah, I think I probably confused that issue a little bit, but I do wanna just throw something out for you to ponder and I apologize for backing up to the totality of the circumstances, but let me just be clear where my concern is coming from on this. And it is somewhat related to the hindsight issue is that we're talking about the person or persons involved their conduct and decisions or the by standards. And we're not making it clear that it's as perceived by the law enforcement officer. It's kind of like floating out there just like the conduct and decisions of law enforcement officer. What I would suggest as a slightly different language here is that we take that the conduct and decisions of the persons and persons involved in any by standards and we put that at the end of this paragraph so that it's related to the facts known to the law enforcement officer. So it'd be all facts known to the law enforcement officer at that time, including the conduct of the persons or persons involved in any by standards. So that's, I think that's what we're trying to get at but I think just this is language tinkering and I don't think it, I think that makes it clear that we're talking about the conduct of all those other people as perceived by the law enforcement officer which is what the critical part is, right? Right, the critical part is to ensure that when we discuss the totality of circumstances that it is not solely based on the conduct and decisions of the police officer. Right. Because that's the totality, that is not the totality of the circumstance it's a portion of the circumstance. But conduct of the subject or the bystander that the law enforcement officer doesn't perceive is not relevant either. I mean, it has to be something that, you know on which the law enforcement officer is basing whatever actions he or she's taking. Sure, it's the, it's what the officer perceives hears sees et cetera at the time they're making the decision to use force, correct? Yeah. I'm sorry, there was just slight ambiguity in that language, I think it would clear up if we slightly move around the phrase regarding conduct of others. All right, I think, yeah, I understand. I apologize for jumping around between those two. I'm trying to sort this out in my head to how this all works. I don't have a big problem with adding without the benefit of hindsight. It's very consistent with case laws I understand and policies as I understand. But when we get to Chief Burke I appreciate him just weighing in on that as well. Thank you. Great. Thank you, Barbara. Thank you, Madam Speaker, Madam Chair, sorry. So my recollection was when we were working on this Bill this summer or this fall, whenever it was we were just had a lot of discussion about bystanders being other law enforcement and that somehow seems to be lost in the discussion. So my question is, should there be and maybe we do need to spell out sort of the difference because one obviously Jennifer you made really clear what it means in terms of interaction. The other one is more some of the things that we saw around the country of other law enforcement being there and not intervening. So those seem really different to me and I'm just worried we've lost the thread of bystander law enforcement witnessing something that is inappropriate. Oh, I appreciate that comment. I was not here for the summer or fall. I wasn't part of any of this but I will say this the draft policy that you have appended to the report clearly makes very clear the duty to intervene on behalf of bystander. And I would also argue that a uniformed law enforcement officer on the scene is not a bystander. They by mere virtue of their presence are a functioning in the arm of their governmental role. So I would say that they are not merely a bystander but the policy is very clear about not only the duty to intervene but the duty to report misconduct excessive force or the use of a prohibited restraint. So I don't think we've lost that thread in the policy and if we've lost it in this conversation it's because I didn't know it was a threat. No, it's not and it's I'm certainly not faulting you in any way. I want my colleague has asked a couple of times what do we mean by a bystander? And that's a great question because I in my head was not thinking about, although I've witnessed the church street 3 a.m. mobs. I mean, so I know that there's, I get that there were these two different ways that bystanders will play out. The other question that I had for you is the four words you want added to the extent feasible. Could you say more about when it is feasible and when it isn't feasible? Because I'm worried that my skirt, the issue that we were trying to get at. Yes, thank you for that question and for, we're not trying to skirt it. As I said in our comments earlier we completely embrace the spirit of section B5. As written B5 is very rigid and it does not recognize that the vast majority of use of force encounters unfold very quickly. It sounds like it is written for the long drawn out situations and representative Lalonde and chair grad and myself and others had conversations about some very high profile cases that took place over minutes if not hours in some cases. That language is essential. The language in B5 is essential and should absolutely be used whenever possible. And I mean whenever possible, whether it's a one minute gap of time to take to make that assessment and alter the course or not. But what it doesn't recognize as written is that the vast majority of uses of force are not these slow roles that unfold. No, I appreciate that. I'm thinking more about, okay, this person is very drunk and not gonna be able to really hurt anyone because he's so drunk he can't walk or lift anything or we know this person is having a seizure, right? I mean, so I think it's more factors that are important to consider if they're known. This person we have had interactions with before and can be paranoid at times and we do better if we back off. So that's kind of what I had in my head. Well, you sound like you've actually worked on the street a little bit because that is sort of how it works. Like you get a call for service and you're like, okay, how many times have I dealt with this person or what does dispatch tell me? And you have to make rapid assessments of how to respond. Using force is the last resort. And I gotta just reinforce the infrequency with which we use force and the infrequency with which controversial uses of force actually happen. What our proposal offers is less rigidity in the face of rapidly evolving situations where either the officer does not have the ability to know or they do know that this person is drunk or on drugs or has some sort of impairment and it does not alter the ability to respond. As I've said previously, we train officers to address behaviors and the root cause of the behavior is very important, but probably and frequently, it is not what drives a use of force decision because when you have already decided you have to use force, it means something dangerous is happening. Someone needs to be protected, whether it's that person from themself or a law enforcement officer or a fellow citizen. We do a very good job on the back end of directing people to the right place based on the root cause of their behavior, mental health court, substance abuse court, diversion, you name it. And taking all of that information into consideration in a split second is a really big ask. We fully support the spirit of this and I think if you read through the whole policy, you'll see there's a consistent emphasis on sanctity of life, de-escalation, not using force as a last resort, but at the end of the day, what you put in statute is what is going to be the line that officers are held accountable to and not just police officers as individuals, but communities and municipalities. And if we are kicking open the door to welcome more lawsuits, then we should be not careful with our language, but we need to be careful and acknowledge that Section B5, while a very laudable and wonderful goal for all encounters, does not, it's too rigid to reflect the reality on the street at times. And I admit, what makes the news or what we hear about are the times that, you know, if something is happening sort of the way it's supposed to 90 times, we don't see that on the news. We're seeing the other 10 incidents. And so obviously we're legislating to those situations. And I just think you bring a perspective of, okay, how do we address those without messing up what's working? I'll redirect back to what I said in the last section, which is whatever statute we are given, we need to be able to develop training curricula around it and we need to be able to communicate the expectations very clearly to 1,200 law enforcement officers in the state, most of whom will not have this level of conversation and be enriched by understanding the goals of everything. We need to be able to write a policy that is clear, that can be remembered by cops under stress, that can be operationalized from one corner of the state to the other and that we can build training for. So that's my lens through it. And I have tried to stay out of some of the advocacy for certain positions because as a policy writer, I want to keep my mind open to all the input that's coming in from you, from the legislators, from our stakeholder partners in this effort. And so I might not be the best one and maybe we should turn to Chief Burke or someone else to talk about improvements to the language because I don't wanna dig my heels in on any one thing. I want to hear the feedback and I want to be able to write the best possible policy for the state of our moment. Thank you, that's awesome. Thank you so much. Thank you. Kate. Hi, thanks. I just had a question. So in looking at the policy under the use of deadly force, number six, a law enforcement officer has a duty to intervene when the officer observes another officer using a prohibited restraint on a person. But I don't see a similar line included under the use of force section. I'm just curious in the context of this discussion of like law enforcement officer is bystander, how it was decided that a similar statement wouldn't also be included within the use of force section. So that's an easy addition that we'd be happy to make about that the requirement to report use of excessive force, it was put in there in the lethal force section explicitly in response to the S119 language and the S219 language, which created the crime of law enforcement use of a prohibited restraint. So that's why it's found in the lethal force section. I don't think there's any reader of the policy who could think that there is not an obligation for law enforcement to report excessive force. But if that is something that is a desired addition, that's an easy one. It's already, I think it's explicit but it's certainly implicit in the policy but we could add it under the less lethal force section as well that all uses of excessive force must be reported immediately. Well, and I think the operative word that I was looking at was duty to intervene. So there's the duty to report which would indicate after the fact, but if we're talking about during the incident, the duty to intervene. Yeah, absolutely. I mean, that is the expectation absolutely. So thank you for that suggestion and I'm putting it on my list. Thank you. You're welcome. Great, thank you. Anybody else? Just looking to see if there are any committee members, any hands up? I think so. Okay, well, great. Well, thank you. Thank you very much. And I'd like to turn to Chief Burke, please. Good morning. Morning, Madam Chairwoman, how are you? Good, thank you. How are you? Good to see you. It's always a pleasure being here. Thank you for the opportunity to testify on this bill. Vermont law enforcement community has appreciated being involved with a broad group of stakeholders in this process, which began last session with S-119. The Vermont law enforcement community has embraced police reform in a meaningful way and views this bill as an important component of enhancing the trust Vermonters have with their police. H-145 has advanced S-119 in many ways, most importantly in ways that allow the law enforcement community to develop policy and training curriculum. H-145 has added clarity to the definition of totality of the circumstances and has reinforced that hindsight not be applied to the objective reasonableness of an officer's decision to employ force. Both elements of the statutory framework are critical to operationalizing these changes in terms of both policy and training. H-145 aims to reduce instances where officers can create the exitancy to use force. One concern of the police community is the language of section B-5. The police have to be caring when assessing Vermonters who are suffering dangerously in a diminished capacity. The language in section B-5 clearly states that when an officer knows that a person is in a diminished state, the officer must use this information in their decision-making process. It is important that this language reflect that hindsight cannot be applied. In many instances, officers are simply reacting to the information provided and observations made in the moment. When we are afforded the time to gather information and make more informed decisions, we do so. That is another important element of maintaining the trust Vermonters afford their police. H-145 adds clarity to the definitions of prohibited restraint, which is helpful, but ambiguity still remains around the use of a prohibited restraint. Progressive and contemporary police policy hold neck restraints at a level of lethal force. Removing the officer's ability to use a neck restraint during a lethal force encounter would make an officer resort to other options that may or may not be available. We need strict prohibition on neck restraints. We've all seen too many videos of officers using this level of force inappropriately. We can achieve this by simply adding language that only allows the use of a neck restraint when lethal force is justified. In order for the police community to adopt model policy, train and fully operationalize this bill, we ask that the September effective date be used universally for these changes. And again, thank you for this opportunity and I'm happy to answer any questions that the committee has. Great, thank you very much, Vermon. So I'll try to be less confusing than I was with Jen and my questions. So, and I think I've narrowed what I need to just ask about. And that is with respect to the, there's a couple of questions actually. First of all, just actually before I get to that one, to be five, the knowing subjects conducts the result of a medical condition, there was language for word suggested and to the extent feasible. Is that a change that you're in agreement with and would help with respect to your concerns on that subsection? That would be extremely helpful. Okay, all right. So my question is that without the benefit of hindsight and I'll try to ask this a little more clearly that, so I understand with the totality of the circumstances, it's the facts known at that time of the situation. But then under our section B4, which is applying the standard, it talks about an objectively, from the perspective of a reasonable officer and the concept to me, it seems that you have to have hindsight, not necessarily regarding the facts, but what would the reasonable officer have done in the shoes of whatever officer was there at the time of the situation? Why is that not in fact using some level of hindsight? And if it is, wouldn't this be undermining this by saying without the benefit of hindsight? No, I think Barton, like when you and I talked, it's really the calculus that goes into evaluating a forced decision. And I think the exact example that you and I talked about, like if I go to an apartment house and I step from the stairwell and someone comes at me with a knife and they're this close to me, I have to react and deal with that, employ my pistol and deal with that threat. Whereas I'm dispatched to a football field at two in the morning for a person that's on the 50 yard line that looks suspicious and I'm in the end zone. And I say, hey, it's the police department. How you doing? And they turn around and from 75 yards away, they're standing there with a knife. Well, there's no reason to shoot that person, right? So the reasonable officer is not gonna shoot that person. That's kind of the calculus. But so if the person in that latter example, if the law enforcement officer does shoot the person 75 yards away because the person has a knife, don't you have to kind of use hindsight and say, well, that officer was obviously not reasonable. I have to put the reasonable officer in their shoes. But again, when you think about this language and evaluating decisions that are made in the field from a policy perspective, you have to use some baseline, right? And that is the baseline of how we've trained and evolved as a profession. And that is the reasonable officer standard. Okay. Yeah, all right. It's probably much to do about nothing because in fact, this is what courts have looked at and we're actually stating what I think is also clear elsewhere. I didn't really know that we really needed this additional language. I don't think it necessarily adds anything because we talk about the totality of the circumstances being at the time of the situation, the facts known to the law enforcement officer. But I don't personally see and we'll look forward to hearing from other witnesses that this language does any harm to what we're trying to accomplish here. But thank you, thank you for that. Any other questions for the chief? Not seeing any. Great, thank you, thank you very much. Appreciate your being here. Thank you. Okay. Chief Pete, we welcome you this morning. Good morning, Madam Chair, morning members. Brian, Pete with the Montpelier Police Department. Thank you very much for the opportunity to be here and to speak if I may. And listening to the conversations, I think that the issue is how we're viewing or defining how we're interpreting the reasonableness standard. So in our minds, if I'm simplifying it to myself, I'm saying reasonableness in our mind is making sure that the reasonable officer is making the decision based on the information known at the time. So they're gonna take the same amount of information that the other officer had what they knew at the time. Hindsight to us would be saying, okay, I'm in this room, I don't know exactly, I've got a flood of different information. I know that here was the background, here were the people that there, who was there, who was there, and then trying to apply that same reasonableness standard with having the benefit of knowing more information. So I think that that ambiguity is what we just wanna make sure that we're sure on and that we know in going forward. I would definitely concur with Jen Morrison on a lot of the recommended changes and that what's critical for us is that we need to know that again, the reasonableness standards is based on what the officer knows at the time and that we have that faith in the language, that that's what we can train on, that that's what that standard is. Because there's a lot of fluidity in these things and I'm reminded of what my mother was in the police department and again, like an example of a rapidly evolving situation. So when my mother was in the police department, she only had a couple of years on the job, her partner Elijah Harris, who died in 1989. And I know this specifically because of the months of seeing my mother try to deal with this was hard. And Elijah Harris was a Marine Corps veteran. He knew at the time, he knew at the time what he was responding to a young boy, 16 years old, the call was 22, he was potentially threatening people with a 22 weapon and he ended up trying to stop the young man. And as he was doing a protective pat down, he got shot in the head. And then looking at another officer, Officer Francis in Chicago, this was 2008. He knew at the time when he was responding to an incident or a disturbance on a bus that it was a woman that he had dealt with before. She was homeless and she was in a mental health crisis. She disarmed him and shot him three times with his own service revolver. So these events are rapidly evolving things. And as we come in and we're trying to use de-escalation tactics and doing everything that we can, we're also cognizant that anything can happen in the blink of an eye. And that doesn't mean we come in at level 10. That means we come in and we just have to be responsive to what we're being presented with. So again, these are rapidly evolving situations. One of the other concerns that I've had and listening to some of the discussions and reading is holding harmless. We've talked about things or within the bill there are things like officers retreating back from another different situation. But what happens if, for example, it was like my second month on the job. When I went out to a scene that there was a young man who had just lost his sister and he was in an apartment complex in Montpelier and he was extremely loud. Very vocal, very confrontational as we're trying to conduct, do the death investigation as we're trying to get folks to come in to process the scene as we're trying to get the medical examiners in. And to the point that he was ready, he wanted to fight with us. He was choosing on, I'm gonna hit you first. I'm gonna do this, this, this. And the whole, everyone came out of the apartment complex as it's gathered around. And some were saying, what is he doing? Others were saying, we need to get the comps. And in that situation, I told my officers, we're leaving the scene, we're leaving. And then it was, why are they leaving that woman lying there? We need to sue them, we need to, it was, so these are very dynamic situations and they do happen. And we do, any officer, any chief who's in this position who does not have sanctity of human life and trying to gain the respect of and the trust of their community, they don't need to be here. We're on your side with this. We do wanna do this, but at the same time, we wanna make sure that we're doing it in a way that we can train to it and that we can utilize it realistically within the field. So that's particularly of anything else that I think that everything else is Jen and the commissioner and chief have already talked about. So I stand ready for any questions. Great, thank you. Very much appreciate your testimony. Committee members, Martin. Yeah, thank you, chief. I just wanna clarify, make sure I understand. So you're fine with the various suggestions that have been made by Jen Morrison and yeah, by Jen Morrison during her testimony. Yes, sir, by chief Burke and Jen Morrison, definitely. Jen Morrison has been in a very impossible situation trying to corral cats, but all of us, I think it's a testament to everyone, all the chiefs understanding and realizing where our culture needs to be. So she's done a lot of hard work and so is the commissioner in getting to this point. Thank you. Okay, great. Anybody else? No, great. Thank you, thank you very much. So it's always good to see you, thank you. Okay, we will now turn to Falco Schilling of the ACLU, please. Good morning and for the record, my name is Falco Schilling and I'm the advocacy director for the ACLU of Vermont. We really appreciate the opportunity to come and testify on this bill this morning. As some of you who were on the committee last year will remember, we were deeply involved in the discussions of the passage of S119, our S119, which then became Act 165, very supportive of all that work and very proud of the bill that came out and eventually became law. When looking at the bill in front of us today, our main position is that we think this, many of these changes proposed in this bill are unnecessary because the language as past and enacted covers many of these situations. So that is our general position on the bill is we do not think this bill needs to move forward, but we have varying levels of concern about some of the different provisions both in the proposed language and that have been proposed in discussions this morning. So I will walk through those, do the best I can to raise some of the concerns that have appeared to us. So I think the first one and probably the highest level of concern for us comes with the addition of without hindsight to the definition of objective reasonableness. This is a concern because when you look at the language it already references the totality of the circumstances which includes facts known to the officer at the time. That is it. It doesn't include things that are unknown to the officer so that discussion of hindsight, we believe is already included in the totality of the circumstances which is one of the factors which should need to be evaluated. By adding without hindsight our fear is that a future court looking at this would limit their inquiry into specifically the moment right before force was used. Now actually taking into account all the factors things such as what happened with the bystanders, the officer's conduct but only look specifically at that moment before force was used. So this can be read as telling a court that they are not able to use hindsight previously into the event. So that is our fears that how that might be interpreted by a court and that that would limit the scope of inquiry to just the superseding event before force was used. So that is our concern around that language in terms of adding the benefit of hindsight. We think that is already captured in the totality of the circumstances saying that it is only the facts known to the officer at the time. And we also note that this additional language when you look at the case law it says without the benefit of 2020 hindsight. So this is a, which to me says perfect hindsight without the benefit of perfect hindsight. This is even saying without the benefit of any hindsight. So in essence, we do not support that change in H-145 because we think it could be misconstrued by a court and then limit the scope of inquiry in terms of reasonableness. In terms of prohibited restraint, we're supportive of the language in the bill or in the act as past. The May test is one that is more restrictive on the use of force though we do not have the same level of concern with this possible change that we do with the change around without the benefit of hindsight. In terms of the addition of adding bystanders into the definition of totality of the circumstances, we don't see that as in any way diminishing or weakening the statute. I think that is what was intended by the committee in terms of trying to take into account all the facts known by the officer. We believe that those facts would include the actions of the officer as well as the actions of others at the time that were known to the officer. So we don't have an issue with the adding of bystanders in that section of the bill. So I'm looking at some of the other changes that have been discussed today in terms of changes to possible language. We do have concerns about the possible addition of the language to the extent feasible in section B five. I believe it's unnecessary when you look at the language. It just says that if this is information known to an officer at the time, they will take that into account to determine the correct use of force. So if we're talking about a fast moving situation where the officer does not know any of this information at the time, it will not be held accountable for that because they will not have known it at the time. This, you know, if it's a slower moving situation like some of the ones that were discussed last year, they will have time to gain that information and have time to take that into account. But we think that the addition of this language as suggested is unnecessary and is not one that we're supportive of. And then looking through some of the other additions, possible additions, I think that kind of covers the basis for our concerns with the bill at this point. So in summation, very supportive of the law that was enacted and essentially think these changes are unnecessary, have greater concerns about some than others. Great, thank you. That was very helpful. Thank you. Martin has questions. So, I guess I have a few questions. Starting with the prohibited restraint definition, it seems to me that it's helpful following language of our larger neighbor of Massachusetts that has used this language. And it seems to also go at really what we're trying to get at, but the chokeholds that we're trying to get at. So I'm not, isn't that of benefit? I mean, that we're looking at another state that may be dealing with this. And I know a small state like Vermont, when courts start interpreting certain language, they will look to other states if other states have already looked at it, not as binding authority, but persuasive. So that seemed to be one of the rationales for following the language that was in Massachusetts. It also seems to capture what we're after. So I mean, if you have any input or comment on what I just stated. I think we can see a benefit to having language that will be adjudicated by other states as well. But at the same time, one of the concerns is with this language change, it changes the inquiry into the use of the restraint as one that is looking at whether or not that restraint may cause the prohibited results to one whether it did in fact cause the prohibited results. So it's an after the fact analysis of whether or not that happened, which could lead to a situation where there, an officer intended to use a prohibited restraint, but it did not have the intended effect. And that is still a thing that we are concerned about. Though at the same time, I understand that there can be benefit from having synthesized language with other states. And as far as the other changes within this section, looking at the addition of or the use of such maneuver with the intent to cause unconscious serious bodily injury or death, that is something we don't have any concerns about adding that language in as well. Okay, so the next question, I mean, I agree with your viewpoint that the without the benefit of hindsight is unnecessary. And I think the totality of the circumstances gets at that, but I'm really not understanding why that language, I mean, I don't see the harm in that language. You've pointed out one potential harm, but I don't see the connection between the without the benefit of hindsight and the temporal space of the language and the totality of the circumstances, which is a conduct leading up to the use of force. I don't know how that benefit of hindsight relates to that. So my concern in reading this language is how it might be construed by a future court. I understand the intent behind it. And that's at least one thing that we are hoping to discuss and make clear if this language moves forward is the intent is not to limit the inquiry to just that superseding moment before force is used, but to take new account everything that led up to that moment of force and determining reasonableness. So in looking at section before, this to me reads as directions to a court when deciding whether a action was in fact reasonable. And so the court is gonna have to look at whether a reasonable officer in the same situation based on the totality of the circumstances, which as we already discussed, includes the fact that the officer cannot be, all the facts known to the officer at the time, nothing that was unknown or may have been known, which was actually this or should have been known, which was discussed in testimony last year and not included. And it says they're looking at that without the benefit of hindsight. So that is my fear is how that could be interpreted by a court. And I know there's been referenced to many the fact that this is a phrase that is used in current jurisprudence, but that's a concern. And I think one of the reasons behind the push for this legislation is that in many times the use of force, reasonable inquiries are limited to just that superseding event. And I think we heard last year, the attorney general testified quite eloquently about how this is one of the major benefits to this law. So that is my concern is how that could be construed by a court to limit their inquiry into reasonableness based on that language. So if you can ponder, and I think other people can ponder a little bit, I don't think that's where this is trying to go. I don't think, I understand what you're saying. And if there's a way to draft language that makes clear that we're in no way suggesting a narrowing of the leading up to the use of force to just that moment that if it's relevant to go further back in time, then that should happen with the, I think legitimate concern of law enforcement that they wanna make sure that we're not second guessing what happened as far as the facts. We're not looking at the various cell phone that captured the video that captured the event from different angles. You're looking at it just really from the law enforcement perception. So I mean, I'd like to find that balance because, and maybe we just have to ponder that a little bit more. But I have one last question. As far as adding to the extent feasible, if you could comment on this, it seems I'm really not troubled by that because if you look in the preceding paragraph of B4, the last sentence there is a law enforcement officer's failure to use feasible and reasonable alternatives to force shall we consideration for whether its use was objectively reasonable? So the fact that we talk about feasible alternatives suggests to me that we should be fine to put into this subsection B5 to the extent feasible because I think these things read together. And I don't think, I mean, if this, again, I agree, I don't think it's necessary, but if this is causing some comfort in this one area which I think is very important, then why not? Particularly since we're already using the language of feasibility elsewhere. If you could comment on that, that would be, if you want to comment on that. Yeah, I mean, I would say, I mean, what I do think it is, it is unnecessary addition to language which then adds another inquiry into this, into the B5 where now the inquiry is, was that information known to the officer at the time and did they take it into account? And then this would add another layer of feasibility in terms of that determination. But in essence, I think this is unnecessary and would be interested, concerned about what future courts might see as the reason behind that addition to change the current statute and what the legislative intent might be. So, I think our position is this unnecessary addition. All right, thank you. Oh, I'm sorry, I had one last question. I apologize. I don't think, unless I missed it, I don't think you commented on the concept of language that would make clear that prohibitive restraint could be used if lethal force was justified under the standards in this statute. And that's something that we would support in concept or want to see what that language actually looked like and see the language first. But the idea that a prohibitive restraint could be used in a situation where that is a less lethal alternative than the uses of things like a firearm. And that is something that we would be supportive of. And I think that makes sense. So just want to see the language on that, but in concept, supportive. All right, thank you. Great, thank you very much. Any other questions? Just any members? No, okay. Well, great. Well, thank you very much. And your testimony has it. Appreciate submitting written testimony as well. Thank you. As you have any questions, feel free to ask. Okay, great. Thank you so much. Okay, so Julio Thompson, the Attorney General's Office, welcome. Thank you. Let me get my video going here. Are people up here will see me? Yes, I think so. Good morning. I'm Julio Thompson, Assistant Attorney General and Director of the Attorney General Civil Rights Unit. So I was invited the other day and I guess I'm available here for questions. I did not have the benefit of looking at the statewide use of force policy, but I have looked at the bill in this morning. It was great bowl to representative belongs to highlight the provisions of H-145 that are different from H-165. So I'm happy to respond to questions. Thank you. Committee, any questions? Selena. Yes, I may have missed things because I'm frantically reading lots of, along with lots of documents at the same time, but did you say the Attorney General was supportive of the languages introduced or? I just read it. I mean, I'm still evaluating it. I haven't spoken to the Attorney General about it. You invited me here to testify, so I'm happy to respond to bills on it. I've been following the testimony this morning and if there are questions about the particular provisions, I can offer you my best response to it. Well, in that case, I'd love to hear your response about the ACLU Vermont's position that, sorry, I'm just trying to make sure I'm accurately representing their position here that about the addition without the benefit of hindsight and the concern that that might sort of take us back to where we were prior to the passage of this act, where we're really narrowing the window of, potentially that courts would be really narrowing the window of time that they could evaluate. Well, I can offer you my perspective from what I read. I wasn't involved in the drafting of this, but I think it's helpful to step back a little bit from the language in that paragraph, which I'm gonna try to pull up for myself here. Is that Act 165, I think, raised the standard for evaluating use of force because in addition to requiring that a use of force meet the Fourth Amendment standard of being objectively reasonable, that it added two additional requirements that the force be also necessary and proportional. Those are the new and I would loosely call that more cutting edge in terms of or more raising the standards than what courts would commonly look at when they're looking at the Fourth Amendment. And typically with the objective reasonableness and usually courts in the common law that's developed in, gosh, it's almost, it's over 30 years now since Granby Conner was decided, they are really focused on the actual use of force, the swing of the baton or the fist, the tackle or whatever. So the provision here really doesn't talk, the amendments here are not to any of the provisions relating to the necessity or proportionality requirements, but rather simply to the definition of objective reasonableness as I saw it. So I think that is in, let's see, that's paragraph B4. So B4 starts by talking about whether the decision was objectively reasonable. So I took this paragraph only to talk about one of the three components of lawful force, which is reasonableness. This paragraph does not address the necessity of proportionality. Part of the necessity requirement is that broader perspective to look at, was this truly a necessary use of force whether what alternatives were there? The phrase objectively reasonable, that's really coming from longstanding federal constitutional interpretations of the Fourth Amendment. So Gran versus Conner, 1989 case, talked about objectively reasonable force. And I guess the question here is whether there was any intent to change Vermont's reading of objectively reasonable from the federal and frankly, state constitutional definition. I didn't take that to be the intent of Act 165. And Gran, the language without the benefit of hindsight is part of the discussion in the Gran case itself that first set or applied the objective reasonableness standard of the Fourth Amendment to a use of force. And the court did that, basically that hindsight language had been in constitutional law had been applied to other Fourth Amendment issues such as arrest or searches. So there would be cases, for example, where an officer has a circumstances indicate the officer thinks someone matches the description of someone and arrests them. And it turns out to be the wrong person. Maybe it's their twin brother, let's use an easy example. And the cases there would say that in evaluating whether that was a lawful arrest, you don't apply the hindsight that we now know that it wasn't the right guy. Or that, or in evaluating a search, whether there was in fact, let's say it's a warrantless search of someone's house, but they find a bomb. You don't evaluate the reasonableness of the decision to search based upon facts you acquire after the search occurred. That's where the hindsight analysis came from in the court decisions. And then the Graham case in deciding evaluating a use of force, the Supreme Court referred to those search cases and said, just as we don't apply hindsight to arrests or searches, we wouldn't apply it to a use of force. And so the language that the court uses, and I have it here, is that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with a 2020 vision of hindsight. Then they discuss the search cases. And the court continues with respect to a claim of excessive force, the same standard of reasonableness, because it's the same Fourth Amendment. The same standard of reasonableness applies, not every push or shove, even though it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that officers are often forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force to use, essentially. So that's where that language comes from. And a number of police department policies, it was mentioned earlier, I believe that Seattle has it in their policy, so they're using the language of the court really as a way of defining what objective reasonableness is. And turning back to the statute here, we're talking about a definition of that same term, objectively reasonable. So it's not clear to me, and again, I haven't had the benefit of much time to think on it, and I haven't really spoken with other folks about it. But it's not apparent to me that this modification would have any impact on analyzing the other two elements that were added to the Vermont standard, the necessity and proportionality standard. I think the, at least the inference I draw here is that there was an effort to square the Vermont definition of objective reasonableness with the one that's been out in constitutional law since Graham. So that was my take on that. It doesn't have the additional language about split second decisions, but I would note that the Seattle policy does. The Seattle policy not only talks about reviewing when making an objective reasonableness determination, you not only don't apply hindsight, but you recognize the circumstances there. So this just takes a part of that language, but not all of it. Whether it's necessary or not, I'm not sure it strictly is because the language in Act 165 says you'll be evaluated from the perspective of a reasonable officer, quote, in the same situation, which I, when I saw one Act 165 or when it was in the bill form, I assumed that you were asking the decision maker basically to place yourself in those circumstances, which might include the brevity, the rapidly unfolding events, the environment, the darkness, lighting, the officers, fitness and fatigue, the strength of the suspect, all of those, the presence of other people who might present a threat. I had read that and I think we had read the in the same situation as putting yourself back, kind of in the movie, so to speak, rather than making a judgment about a given scene based on the end of the movie where you have additional facts that weren't known to the officer. So I'm not sure it forecloses where narrows the scope of the statute. I think if the legislature were intending to narrow the scope of the evaluation of incidents that lead up to the use of force, then it probably would or should do that if it desires to do that, to do that in a section outside of this one because this only addresses objective reasonableness and not necessity or proportionality. Okay, thank you. I'm gonna go to Coach Martin. I know your hand was up first, but Coach hasn't spoken, so thank you. Thank you, Madam Chair. Julio, good to see you. Good to see you. Good to see all of you. Will you be able to take some time to review the bill for recommendation from your total office? We would like to hear your impression, especially related to the model policy. Yeah, yes, we'd be happy to do that. Thank you, Madam Chair. Thank you. Martin. Yeah, I wanted to ask you about another section, but I just wanna make sure I understood the discussion of without the benefit of hindsight. So you're not buying the concern of the ACLU that that would limit that temporal consideration of what led up to the use of force. Is that correct? Did I understand that correctly? I didn't say anything about what I was buying or not. I said it wasn't clear to me and I haven't had the opportunity to have the benefit of their thinking on that other than the written statement I wrote this morning. It's not clear to me that that's necessarily the case, but if I have the opportunity to hear more from them or others who are making that argument, it might become clearer to me. I'm just saying it wasn't immediately evident that that's a little bit different than saying, I don't buy it, I'm not sure I see it. Okay, all right, so I guess the other question would be, would you be able to do that? I guess the other question would just on that same section is when we say based on the totality of the circumstances and if you look at the definition of that, it says, the facts known to the law enforcement officer at the time, why is without the benefit of hindsight even necessary? Doesn't the totality of the circumstances essentially capture that?  I do think that's important to recognize that when the Supreme Court, for example, lays out the standard of what is objectively reasonable, they use overlapping phrases to illustrate the point. And just maybe different ways of illustrating the point. So in Graham, where I read it to you, the Supreme Court says you should evaluate it from the circumstances that the officer is in. And then the court goes on to say that that means without 20, 20 hindsight, that means taking into account split second decisions. So it's not uncommon for courts or sometimes statutes to use overlapping language to illustrate what a phrase means. And I guess, fundamentally, I think that the question here is, did the legislature mean to change the objective reasonableness standard from constitutional jurisprudence? I didn't hear that testimony in the prior session. What I heard was we want to add to the existing objective reasonableness standard by adding necessity, by adding proportionality and also adding other things like identifying prohibited restraints, adding a duty of intervention. And the amendment here seems to be an attempt to use some of the existing language about that exists in a common law and a lot of police department policies as a way of defining that one element of objective reasonableness. So the question might be if Supreme Court uses the phrase without the benefit of hindsight, the legislature doesn't include it, does that reflect the legislative intent to mean that, oh no, we definitely do intend to apply hindsight. We definitely do not intend to take into account factors that like quick decision-making, et cetera. I'm guessing that that's the intent here. And I didn't take it to mean that. And so I do think that if there was an intended departure from the existing standard of objective reasonableness, which is lengthier than what is in Act 165, then the legislature, we would have expected it, would say that. So it seems to me like the question, I think the question posed by the suggested edits were, when you gave a shorter version of Graham, are you still holding onto the Graham standard? And because Graham does mention without the benefit of hindsight, it mentions some other things, but they didn't propose those other things. So just jump in, because I know we don't have too much, we only have a few more minutes, but for the subsection B5, the suggestion of adding language to the beginning of that, the to the extent feasible, adding that phrase. Any comments on whether that significantly changes what we're trying to do here with this or just any comments at all on that additional point? My impromptu reaction to that based upon just what I heard today, is I'm not sure what it means because if the existing language says, when an officer knows, then they'll act upon that, right? So when you say, if an officer knows by definition, the knowledge was feasible, otherwise you wouldn't know it. So I'm not sure what feasibility does to that. I read five always to mean that if you have this information in your head, then that will be part of your decision-making process. It doesn't address circumstances where an officer doesn't know something. So I'm not sure where feasibility takes in unless you're saying it's not feasible for the officer to take it into account. If that's what it means, then it may be the feasibility, well, I maybe should stop there. Maybe that was the intent is like, it's not feasible for you to take it into account. And then I guess I would want to hear more about what circumstances people have in mind where you have information, but you can't take it into account when you decide what to do. I don't want to speculate what that is. I just don't know. Because it, I mean, if you're, is it adding confusion? Is it making this more ambiguous than it is without that language? Is that what I'm? I guess what I'm saying is I didn't hear enough today because it's not even, I mean, I literally just heard one of the folks talk. Today about it. It's not even in the drafts, but I didn't understand what, what circumstances does a language intend to address? I don't know that. So I can't evaluate whether it's a good addition or not because I don't know. I mean, for me, it would be useful to hear a fact pattern and say, well, it would be this sort of case. And if there was testimony on that, that's possible. Perhaps I stepped away to get a drink of water or something and I missed it, but that's kind of where I am. So I'd be open to hearing more about what that means because it's just on its face. I wasn't sure what it was intended to address. But thanks. Well, thank you. And I hope to get to this next week, a week from today. So I do encourage conversations between the Attorney General's Office, Department of Safety, ACLU, others to see if we can get an understanding and, you know, in any other language, any other proposals so we could, we could keep moving forward. Very much appreciate the sporting. I think it was very helpful.  I just had a general comment. So I don't want to cut you off there. It's not a question for a witness. Sure. Yeah, I think I said what I, what I want to look basically do hope to get to it, back to it in a week. So go ahead. Thank you. Thanks so much, Madam Chair. I just want to note that earlier this morning, the word uppity was used to refer to an exchange between a witness and a representative. And at best, the word uppity describes a failure to observe social hierarchies and at worst it has historical origins as a descriptor with regards to those who resisted the institution of slavery. And I found the use of that word to be troubling both when directed at a female representative and in the context of this committee's work to address bias and police use to force. And I just feel really compelled to say this on the record now as I wish I'd done this morning. And thank you for the opportunity to do so. Thank you. I very much appreciate you saying something and very much echo your concern and disappointment. Okay. So we are about to adjourn. It's time. Madam Chair, I see the commissioner just signed on. I like literally just the second joined. Perhaps he wants to address that. Okay. Commissioner, do you, I'm not sure if you wanted to. I only know that something was brought up that might relate to me. I don't know the context. I'm sorry. Would you like me to repeat myself? That would be great. Thank you. Okay. I just shared some concerns commissioner about the use of the word uppity in regards to the exchange earlier this morning and noted that, you know, the at best, I think that word describes the failure to observe social hierarchies and at worst has historical origins with regards to folks who resisted the institution of slavery and found that really troubling both directed at a female representative and in the context of this committee's work to address. Yes, I appreciate that. I appreciate that. I'm sorry. Were you finished there? I am now. Thanks. I was made aware of that just a short time ago. I apologize for the use of that word. I was unfamiliar with its history and was quite sad to see yet another word that's been weaponized in our history against various populations. So apologize for that use. We'll correct that going forward in the future. I appreciate you giving me the opportunity to respond to that. Thank you. Okay. So with that, if we could go all.