Senate Judiciary hears experts urge council rulemaking rather than complex statutory mask exceptions in S.208
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Summary
A Department of Public Safety commissioner and a constitutional law professor told the Senate Judiciary Committee that S.208’s goals (ensuring officer identification and limiting face coverings used to hide identity) may be better achieved through Criminal Justice Council rulemaking or a statewide policy than by detailed statutory exceptions; legal challenges under intergovernmental-immunity and preemption doctrines remain possible.
The Vermont Senate Judiciary Committee on Jan. 15 heard testimony urging the committee to consider administrative rulemaking through the Criminal Justice Council, rather than embedding detailed exceptions in statute, to address proposed restrictions on law-enforcement face coverings in S.208.
Jennifer Morrison, commissioner of the Department of Public Safety, told the committee she supported the bill’s goal but recommended moving the issue into an administrative framework. "I would recommend that you either direct the Vermont Criminal Justice Council to adopt a rule as part of the existing code of conduct or that you move in the direction of requiring a statewide policy on this topic," Morrison said, arguing a council-led approach would create "a statewide consistent framework" and avoid variations from 14 different prosecutors.
Morrison also proposed cleaner statutory language if the committee keeps the issue in statute: "it shall be unlawful for any law enforcement officer in Vermont in the course of their official duties to obscure their face for the purpose of hiding their identity," she said, adding that clearer affirmative phrasing would reduce ambiguity in exceptions. She suggested changing references to "badge numbers" to "identify themselves by name or radio or badge unique number," noting some agencies use radio call numbers rather than badge IDs.
Morrison flagged operational exceptions that the committee should explicitly accommodate — winter balaclavas, helmeted snowmobile riders, ATV and motorcycle coverings, search-and-rescue gear and tactical-team protective equipment — warning that broadly worded exceptions could be claimed for purposes the bill does not intend.
"If you directed the council statutorily to create this as part of code of conduct or as policy, to consider it as misconduct, they would not be able to be charged simply, but they would be answerable to the council for whatever level of misconduct that bucket this week falls in the category," Morrison said, describing how administrative misconduct processes could affect certification and impose noncriminal sanctions.
The committee also heard legal analysis from Jessica Bolman Posen, Betts Professor of Law and co-director of the Center for Constitutional Governance at Columbia University. Bolman Posen said states retain broad police powers and that S.208 is a plausible exercise of that authority, but she identified the supremacy clause—intergovernmental immunity and preemption—as the most likely bases for challenge.
"I believe that these bills are an important exercise of Vermont's police power, that they're not foreclosed by the supremacy clause of the United States Constitution," Bolman Posen said. She recommended including legislative findings (for example, documented impersonations of law enforcement) to strengthen the bill’s record and suggested keeping the measure’s applicability even-handed across local, state and federal officers to defend against discrimination claims under the intergovernmental-immunity doctrine.
On preemption, Bolman Posen said she had not found a federal statute or regulation that would directly conflict with the proposed identification and masking rules and argued courts tend to presume against preemption in traditional state domains such as policing. She cited the century-old Johnson v. Maryland line distinguishing direct regulation of federal officers from state laws that incidentally affect how officials carry out duties.
Several senators pressed on enforcement against federal agents. Bolman Posen said states can bring prosecutions or civil suits against federal officers, but federal officers may raise supremacy-clause immunity and seek removal to federal court; whether immunity succeeds depends on whether the officer was acting within the scope and reasonableness of federal employment.
Committee discussion also noted that the Law Enforcement Advisory Board had added the topic to its agenda and that, per Morrison’s estimate, the LEAB could pass a draft to the Criminal Justice Council within roughly six to nine months for further review and adoption.
The committee did not take final action on S.208 on Jan. 15; staff and the committee will weigh whether to direct the LEAB/Criminal Justice Council to pursue rulemaking or to proceed with statutory language refined along the lines of the witnesses’ drafting suggestions.
