After California’s governor signed a bill into law Monday tightening standards on when law enforcement can use lethal force, advocates are calling for Vermont to do the same.
The new legislation changed California’s legal standard for police shootings. Law enforcement can now only use lethal force when “necessary,” i.e. when there are no other options. The previous standard allowed an officer to shoot in self defense if they reasonably thought their life, or that of a bystander, was in danger.
The change in statute was made in response to the police killing of Stephon Clark, a 22-year-old unarmed black man who was shot in his grandmother’s backyard in Sacramento last year.
The new law is believed to be the toughest standard for police lethal force in the nation.
Meanwhile, in Vermont, most police departments use the reasonable action standard, which gives officers a great deal of latitude.
Despite growing concern from the state’s leading civil liberties organization about public safety in the wake of nine recent fatal police shootings in Vermont, Gov. Phil Scott, the Legislature and the Vermont Attorney General’s Office have taken no action. Officials told VTDigger Tuesday they will take the California law under consideration.
Police in Vermont have already used lethal force three times this year. There were six fatal police shootings in the state over a six month period from late 2017 to early 2018.
In each instance, the Vermont Attorney General’s Office determined that the killings were justified under current law.
The Vermont State Police’s policy states that officers may “employ objectively reasonable use of force to accomplish a legal purpose.” It also says the degree of force used depends on “what the member perceives as being objectively reasonable under the circumstances.”
Rick Gauthier, who trains officers at the Vermont Police Academy, said use of force policies across the state are “strikingly similar,” and very much in line with the federal standard.
“They talk about reasonableness, they talk about using what information the officer had at the time without 20/20 hindsight,” Gauthier said. “Each instance needs to be judged on its own merit, so we avoid using a floating yardstick that isn’t situation-specific.”
But civil liberties advocates question whether Vermont policies adequately protect the public. ACLU-Vermont executive director James Lyall said it would be advisable for Vermont to use the California standard.
“Vermonters don’t want police to use force unless absolutely necessary and when there are no other options,” Lyall said. “That shouldn’t be a controversial proposition, and the reality is that the lower, ‘reasonable’ officer standard does too little to prevent questionable or unjustified police shootings. We can do better.”
The three lethal force incidents in Vermont so far this year put the state 10th in the nation for the highest rate of police killings in 2019. The first police shooting was in May, when Jeremy Potwin, who was wanted for several crimes, was killed after an eight-hour standoff in Tunbridge. Earlier this month, a Montpelier police officer shot and killed 62-year-old Mark Johnson, who was allegedly pointing a pellet gun at police (dashcam footage has yet to be released).
In April, the death of Douglas Kilburn was ruled a homicide when he died several days after being punched in the face by a Burlington police officer.
In 2014, Vermont passed a law governing how electronic stun guns, like Tasers, are used by police, but lawmakers have not paid the same attention to lethal use of force.
Both the governor and attorney general’s offices say Vermont is constantly reviewing its use of force policies, and will take California’s change under consideration.
“The governor will be asking the Department of Public Safety and his legal counsel to review the California law against our current laws and practices to advise him on any changes that could be considered to better ensure public safety – both for civilians and our law enforcement officers,” said Scott spokesperson Rebecca Kelley.
Scott recently appointed Michael Schirling, the former Burlington police chief and outgoing commerce secretary, to replace Thomas Anderson as public safety commissioner.
Attorney General TJ Donovan, who has reviewed a dozen police shootings since he was elected in 2016, told VTDigger last fall that he didn’t think Vermont’s lethal force standard should be changed.
“I don’t see how you change that standard, because it’s a reasonable person,” said Donovan. “So it’s not a police officer’s standard of reasonable.”
Donovan’s office reviews all use of force cases, and ultimately decides what a reasonable person would have felt if they were in the shoes of an officer who employed a lethal use of force.
Domenica Padula, chief of the criminal division for the Attorney General’s Office, also said it will take California’s changes under “careful consideration.”
“Important discussions surrounding the lethal use of force are happening all over the country — Vermont is no different,” she wrote. “Any time a state initiates a significant change in the law regarding this issue, it certainly merits our careful consideration, reflection, and review.”
Several Vermont lawmakers said they would like to see a discussion in the Statehouse next year about Vermont’s policies, in light of the changes made in California.
“I really like to hear from both sides about the situation in Vermont and how people see it,” said Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee.
“Until we really start hearing from all sides, it’s unclear whether or not it’s a matter of changing a law, whether it’s more resources, it could be all of the above really,” said Rep. Maxine Grad, D-Moretown, the House Judiciary chair. “I would certainly like to look at it when we come back.”
Read the story on VTDigger here: California changed its law on police shootings. Should Vermont do the same?.