Legislation that arrived on Gov. Phil Scott’s desk last week would establish a new use-of-force standard for police agencies across Vermont, but public safety officials say the proposed statute would send law enforcement officers into murky legal waters and are urging the governor to veto the bill.
The killing of George Floyd in Minneapolis earlier this year sparked protests across the country, and calls for police reform have reverberated loudly in Vermont.
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Lawmakers recently approved a bill that would redefine the circumstances under which police can use deadly force, and supporters of the legislation say it could save lives by promoting the use of de-escalation tactics.
“So what this bill would do is say, ‘We’ll look up to what led to that use of force, and judge whether the officer was acting reasonably, whether there’s things they should have known, or ways they could have de-escalated the situation before resorting to force,'” said Falko Schilling, advocacy director at the Vermont chapter of the American Civil Liberties Union.
The bill surged to the top of the legislative priority list after thousands of protestors descended on cities such as Montpelier and Burlington earlier this year to demand immediate reforms to Vermont police agencies.
"This is different from the current standard, which really only looks at that moment right before force is used, and judges based on that." — Falko Schilling, ACLU of Vermont
The bill, however, was authored more than year prior to Floyd’s killing, in response to deadly use-of-force encounters involving people with mental health conditions.
Northfield Rep. Anne Donahue, lead sponsor of the bill, said a 2016 incident in which police shot and killed 76-year-old Phil Grenon inside his apartment in Burlington exposed “gaps” in use-of-force standards.
“It wasn’t based on, 'What are the community standards?' Or, 'What should the standards be?'” Donahue said. “The only thing it ever looked at was the split-second moment of decision when use of deadly force was employed.”
The Grenon case began with police conducting a welfare check on the man after people in Grenon’s apartment complex reported that he was screaming and making threats from inside his apartment.
When Grenon refused to open the door, police used a key to enter the apartment, and found Grenon standing near the threshold holding a knife.
Grenon screamed at the police to leave him alone, and then slammed the door shut and retreated to his bathroom.
After waiting for reinforcements, police reentered the apartment and found Grenon hiding in his bathtub. When they pulled the shower curtain back to apprehend him, Grenon lunged at police with a knife.
Donahue said Grenon was “absolutely no threat to anyone, hiding in their shower.”
“Why did the interaction happen that resulted in his death?” Donahue said. “Because [police] provoked him to come out.”
"That unintended consequence could be that if an officer acted justifiably, they could see their entire life destroyed." — Chief Brian Peete, Montpelier Police Department
According to language in the bill approved by lawmakers last month, officers shall use force only when “necessary,”and only when all “feasible and reasonable alternatives” have been exhausted.
Police reform advocates say the new use-of-force legislation could prevent similar tragedies in the future, because it makes one key change to the way courts would assess whether force was justified or not.
“This is different from the current standard, which really only looks at that moment right before force is used, and judges based on that,” Schilling said.
Schilling said the new bill would ensure that rulings on the legality of police force would be based on the “totality of the circumstances,” not the singular moment that triggered an officer’s decision to use that force.
Montpelier Police Chief Brian Peete says he’s fully on board with the push for reforms to policing.
“There’s no denying that law enforcement is at a reckoning right now for what has happened as a collective institution with us — no denying that,” Peete said.
He said the rush to adopt a new use-of-force statute, however, sends officers into an uncharted legal territory that they don’t understand, and haven’t been trained for.
“You want to tell law enforcement what the standard is, but now you’re leaving it up to us to figure out that standard. That’s not fair,” Peete said. “That unintended consequence could be that if an officer acted justifiably, they could see their entire life destroyed.”
Peete, who previously served in Chicago, New Mexico and other jurisdictions, said Vermont’s use-of-force standard, and its use-of-force training protocols, are already among the most progressive in the nation.
Commissioner of Public Safety Michael Schirling told lawmakers last month that the existing use-of-force standard in Vermont is based on decades of case law.
He said police will have no way of knowing how courts will interpret the relatively novel language in the new use-of-force statute, which is modeled after first-of-its-kind legislation passed in California last year.
“The fundamental concern is that when new words are added, words the courts have not used in prior guidance, that we will have to try to figure out in the near term how to operationalize them. And we will be wrong,” Schirling said.
Schirling said police in the state support the creation of a uniform use-of-force standard that all agencies will have to comply with. And he said they’re happy to mirror the language in the new legislation.
But he said the Legislature should direct law enforcement agencies to develop that policy — and sanction them heavily if they fail — rather than create a statute that exposes police agencies to unknown legal repercussions.
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Vermont’s top law enforcement officer, however, has broken ranks with public safety officials like Schirling. And Attorney General TJ Donovan is urging Gov. Phil Scott to sign the use-of-force bill into law.
Donovan told lawmakers recently that the Grenon case underscores the need for a new use-of-force standard.
“Public safety wasn’t at risk in this case,” Donovan said. “Mr. Grenon was in his house, by himself.”
Had officers known their conduct would be based on the totality of the encounter, Donovan said, and that a prosecutor would determine whether use of force was absolutely “necessary,” maybe Grenon would still be alive.
“If we had a necessary standard, and a totality of the circumstances standard, I’m not sure you go into that apartment,” Donovan said. “I can’t guarantee that. But you would train to that standard and you would exhaust every possible remedy.”
Scott hasn’t said yet whether he plans to veto the use-of-force legislation, or allow it to become law.
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