Category Archives: Law

Some Questions Need to be Answered About the Red Flag Law — UPDATED

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Note: This post has been updated with figures from Lamoille County.

It’s been almost five years since Gov. Phil Scott signed a package of gun bills into law on the Statehouse steps. One of them was a so-called “red flag” law, which allows police to temporarily take firearms away from people deemed to be an immediate risk to themselves or others.

This was a popular alternative to tougher gun restrictions, endorsed by quite a few Republicans including then-president Donald Trump. But how has the idea worked in practice?

Well, according to the Associated Press, not all that well. The AP reported that in many jurisdictions, red flag laws are so rarely used they might as well not exist.

AP found such laws in 19 states and the District of Columbia were used to remove firearms from people 15,049 times since 2020, fewer than 10 per 100,000 adult residents. Experts called that woefully low and not nearly enough to make a dent in gun violence…

In Chicago, the Illinois law was used only four times. New Mexico’s law was employed eight times. In liberal old Massachusetts, the red flag law was used a whopping 12 times.

It’s a different story in Vermont. But there are still questions to answer about our red flag law in practice.

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This Sheriff Business is Even Weirder Than I Thought

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Recently, I totted up all the recent scandals involving Vermont’s county sheriffs and asked whether we could do without that archaic institution.

Well, now I’ve dipped a toe into sheriff’s department finances, and this whole thing is a lot weirder than I realized. Not necessarily corrupt, but curious, inconsistent, poorly conceived, and sometimes mismanaged.

This is going to take a while, so I’ll summarize the key points up top.

Sheriffs are effectively proprietors of sizable small businesses. They have to be entrepreneurial to keep the lights on because state funding accounts for only a fraction of their expenses. The sheriffs make up the rest by selling their department’s services to anyone who needs policing or security. Sheriffs often handle policing for small communities — for a price. They also work for road contractors, public events, school districts, and other entities both public and private. (The Rutland County Sheriff collected close to $60,000 from the Diamond Run Mall.)

By law, sheriffs are entitled to a 5% cut of all their service contracts. They don’t all take it. Some plow the money back into the department to cover expenses. In many counties, there’s no way of telling how much of a cut the sheriff is collecting. But that 5% can hit the high five figures or even cross into six figures. It’s a lot of money.

The need to be entrepreneurial, and the prospect of collecting a share of every contract, create a strong incentive to expand offerings and find new “markets” for armed officers of the law. This is what leads to scams like the speed trap in Bridgewater, which benefits the town and the Windsor County Sheriff at the expense of inattentive drivers. Honestly, I’d be surprised if there weren’t more such things going on.

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The State Senate Approaches a Demographic Tipping Point

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Seems like I’ve been waiting forever for the Vermont Senate to undergo a demographic shift. Every two years there’s been talk of a retirement wave, but it never materializes. Senators consider stepping aside, then realize they’re indispensable. (They’re not.) And the voters rarely eject an incumbent except in cases of overt criminality (Norm McAllister) or advanced senescence (Bill Doyle).

The shift has been painfully incremental until this year, when almost one-third of all senators decided to bow out. The nine incomers are younger, five of them are women, and one is a person of color: Nader Hashim joins Kesha Ram Hinsdale and Randy Brock as the three non-white members of the upper chamber.

(The tiny Republican caucus managed to get older and no less male. Its two youngest members, Corey Parent and Joshua Terenzini, will be replaced by a couple of old white men.)

Got more numbers to plow through, but here’s the bottom line. The Senate is on the verge of a historic shift, but it’s happening in slow motion. We might reach the tipping point in two years’ time. We’re not quite there yet.

There are still plenty of tenured members in positions of power. They account for most of the committee chairs. But only — “only” — eight of the 30 senators will be 70 or older. At least 13 will be under 65, which doesn’t sound like a lot but in the Senate it definitely is.

The incoming Senate President Pro Tem, Phil Baruth, straddles the age divide. He’s only — “only” — 60. But he’s entering his sixth two-year term, so he’s familiar with the Senate and the elders are comfortable enough with him to make him their leader. As a senator he’s been a strong policy advocate unafraid to ruffle feathers, but as Pro Tem he’ll know he can’t push his caucus too far too fast.

There are the preliminiaries. Now let’s dive in.

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Vermont’s National Reputation Gets a Well-Earned Bruising

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Might be time for Vermont Tourism & Marketing to hire a crisis communications specialist. Because two times in recent days, stories have appeared in national media outlets putting Vermont in a very bad light. Both times, the subject was Vermont officialdom’s passive response to white extremism.

First, a pair of pieces on public radio’s “This American Life” about the Slate Ridge militia “training center” in West Pawlet; second, an essay in USA TODAY by Michael Shank of Brandon, who says he is moving out because of white supremacist activity near his home. (And let’s not forget that earlier this year, the New York Times ran a long piece about the residents of West Pawlet “living in fear” because of Slate Ridge.)

The Slate Ridge saga is familiar ground for those who follow the news. Various legal actions are wending their way through the court system, while Slate Ridge continues to be a disruptive presence. Its owner Daniel Banyai is defiant toward local and state officials, and their response seems oddly muted. Meanwhile, the people of West Pawlet are just trying to get by.

For me, Shank’s essay really hit home. For starters, I’d never heard that white extremists were a problem in Brandon. That made me wonder how many other pockets of extremism are present in Vermont, particularly in rural Vermont where local regulations are lax and local officials lack the heft and/or willingness to tackle these situations.

But the heart of Shank’s message is that white extremism is on the rise, and official Vermont has failed to respond. I think he’s dead on.

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And Now a Word From Vermont’s #1 QAnon Ambulance Chaser

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Hello, friends. I’m Deb Bucknam. You may know me as the spectacularly unsuccessful Republican candidate for Attorney General in 2016, or from my years of service as an officer of the Vermont Republican Party.

That may make you think I’m mainstream, but let me assure you I’m anything but. I stand ready to legally represent any member of the far right who’s been oppressed, victimized or silenced by the deep state, the United Nations or the insidious Antifa movement.

That’s right. Call me if your violent threats have cost you your job, or if you’ve been targeted for refusing to wear a mask, or if you’ve been barred from carrying your firearm into any space, or if a simple patriotic act like storming the U.S. Capitol has triggered a deeply unfair prosecution. I WILL BE YOUR ADVOCATE!

Just look at my track record. I represented a Rutland gym owner whose business was ruthlessly shut down by state officials. I went to court on behalf of five brave Vermonters who sought to block the mailing of ballots to every registered voter in Vermont. And I stood by the side of a Newport mail shop owner as the state tried to close him down for refusing to make customers and staffers wear masks.

Now, I may have lost every single case. But I promise to have your back, no matter how ridiculous or imaginary your cause.

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Tightening Up the Hate Crime Law

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I’ve written previously about Vermont’s inability to protect targets of hate crimes, especially those in public office. People of color, including former state rep Kiah Morris, have been hounded out of elective office — and have gotten no support or protection from law enforcement or prosecutors. Women in public life, who are frequently targets of harassment, also have to carry on with no recourse in the law. Which means, hey, the harassers win!

Turns out, somebody’s trying to do something about that. The House Judiciary Committee is working on a revision to Vermont’s hate crime law aimed at allowing more prosecutions while preserving Constitutional rights. More on this after a brief digression.

This is what they call a “committee bill,” meaning it’s drafted by a committee rather than an individual legislator. Coincidentally enough, VTDigger’s Kit Norton covered the phenomenon in last night’s episode of “Final Reading,” Digger’s free-subscription daily summary of legislative activity.

Unlike an ordinary piece of legislation, which is formally introduced by a member of the House or Senate, given a bill number and referred to a legislative panel for discussion, a committee bill is assembled, piece by piece, within a — you guessed it — committee. 

It lacks a bill number and isn’t easily found on the Legislature’s website. It can evolve quickly and quietly, under the radar, until it springs from committee, fully formed, onto the House or Senate floor. 

Norton writes that, for whatever reason, there are lots of these bills in the Legislature this year. He’s right; committee bills don’t show up in the Legislature’s searchable list of introduced bills. You have to go to the committee’s website and search around.

Back to the matter at hand. Apparently House Judiciary has been low-key working on this, in consultation with the Attorney General’s office. I’m glad to hear that, because I’ve specifically attacked T.J. Donovan for failing to prosecute hate crimes. This means Donovan recognizes the need for a change in the law. On Wednesday morning, the committee began hearing testimony on the bill. Testimony that showed how difficult a balancing act this legislation will be.

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The Collar and the Badge

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In recent days, we’ve seen defensive protestations from two separate former Burlington police chiefs. The above comes from former chief and now rebranded 21st Century policing expert Brandon del Pozo. The second is in the resignation announcement of Jennifer Morrison, who tied her departure to the too-tough oversight by the busybodies on City Council.

In some ways I can sympathize. Burlington is a tough city for policing, never more so than right now. Progressives on City Council and community advocates often go over the top in their demands and their tactics. And as del Pozo noted in another tweet, many of the top cops who’ve resigned or been forced out across the country are among the more progressive members of that breed. To be sure, life is easier for the George Merkels and Paul Doucettes of the world, who rule the roost in communities that let the cops have their way.

For purposes of this blogpost, I am not questioning the good intentions of del Pozo or Morrison. But here’s the problem: Much like the Roman Catholic Church, the policing profession has forfeited the benefit of the doubt. There are far too many bad apples — and you know the real truth about bad apples is that unless they are removed, they spoil the barrel. In both professions, the bad apples have been allowed to remain.

The vast majority of Catholic priests and, for the sake of argument, top Church administrators operate faithfully, with good intentions. But the bad apples were protected, and the Church continues to pay a price. Who can take the Church seriously as a moral arbiter?

Winning back the lost trust will take several decades of good behavior and strict adherence to moral principles and the law. The same is now true of the policing profession — except they are still racking up fresh deficits.

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When Pigs Fly

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In the wake of George Floyd’s murder and the wave of ensuing protests, Vermont’s political leadership is united in calling for criminal justice reform.

They are also united in minimizing expectations for actual, y’know, results.

This shouldn’t be surprising. Law enforcement has always gotten a full, respectful, sometimes dreamy-eyed reception in legislative committees. Police chiefs, sheriffs and state’s attorneys always wield strong influence when it comes to any issue that touches on their work, from criminal justice to substance abuse to cannabis to the deadly perils of Happy Hour.

(This post concerns our top Democratic and Progressive leaders, not Republican Gov. Phil Scott. He has made all the right noises, and I’m sure he will endorse modest reforms. But the expectations ought to be higher for the D’s and P’s.)

No surprise then, that Dem/Prog Senate President Pro Tem Tim Ashe and Dem House Speaker Mitzi Johnson have already put the kibosh on any talk of cutting the Vermont State Police budget. Ashe, who believes it’s time for him to move up the ladder to the lieutenant governorship, offered this in lieu of leadership: “It’s one thing to say that, to communicate as part of this national discussion, but how you actually implement such a proposal is not a one size fits all.”

Spoken like a politician fleeing a hot-button issue.

Johnson asserted that Vermont has “a very different law enforcement structure than a lot of other states,” so those notorious one-size-fits-all solutions just won’t work here.

Well, I’d like to know more about how Vermont’s structure of state police, county sheriffs and municipal police departments, whose officers are armed with lethal weapons and who are primarily responsible for responding to a variety of public safety situations, is so dramatically different from the police structure elsewhere.

And whose officers have a track record of disproportionately stopping or arresting people of color and of using deadly force in dealing with the mentally ill.

Eh, I don’t think out “structure” is so different. Johnson is simply making another meaningless callout to Vermont exceptionalism.

As for Attorney General T.J. Donovan, he has tweeted that America’s criminal justice system is “broken,” and the time to fix it is “now.” But his proposed fixes are from the lipstick-on-a-pig bargain bin.

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Keep the ball

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Yesterday on Twitter…

This is absolutely bloody brilliant. And I feel absolutely certain that Congressional Democrats don’t have the stomach to pull it off.

Let’s recap the situation as of midday, Tuesday December 17, 2019. The House of Representatives is due to vote sometime this week on articles of impeachment for That Most Impeachable Of Presidents, Donald Trump. In the normal course of events, the action would move to the Senate for a trial — and an acquittal, thanks to the LALALALA I CAN’T HEAR YOU Republican majority.

Where Lindsey Graham has promised not to listen to the evidence, thus pre-disavowing his duty as a juror. And where Majority Leader “Moscow” Mitch McConnell has openly acknowledged he’s conniving with Trump on trial rules and staging.

The game is fixed. So why play along?

The House should approve impeachment, and then sit on it. Don’t convey the articles to the Senate. There’s nothing that mandates immediate conveyance, and a lot of good arguments for playing keep-away.

For starters, the impeachment process has been the first time in living memory that the Dems have managed to wrest the spotlight away from whatever Trump is tweeting or helicopter-adjacent shouting. They’ve controlled the narrative, and will continue to do so this week.

After that, it’s in Republican hands once again — if the House gives it over to the Senate. The Dems would go back to playing defense.

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Donovan Knew

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The Vanishing Wunderkind

If there was any doubt about whether Attorney General T.J. Donovan might run for governor in 2020, he has just eliminated it.

Not by making an announcement, but by making it all but impossible to get the Democratic nomination. The guy’s so radioactive right now, he ought to just lay low for at least two more years.

Because it turns out he played a major role in concealing the scandal at the Chittenden Regional Correctional Facility. We know this thanks to Seven Days‘ Paul Heintz, who has done the near-impossible. He uncovered a major scandal in state government — and then, one week later, he has substantially advanced the story, at a time when every media outlet in Vermont is pursuing this thing. Or should be.

Today’s piece reveals that pretty much everyone in state government knew about widespread abuse at the Chittenden Regional Correctional Facility long before it became public, including officials who loudly expressed their horror and astonishment that there were problems at the prison.

Including, most notably for our purposes, T.J. Donovan, who has known about systematic problems at the prison for two and a half years.

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