Ninth Circuit ruling clouds path for Vermont bill requiring officers to identify themselves; witnesses urge policy approach

The House Judiciary Committee recessed its review of S.208 on April 23 after learning that a three‑judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an interim ruling that undercuts the part of California’s law requiring plainclothes federal officers to visibly display identification.

"The Ninth Circuit found that section 10 attempts to directly regulate the United States and the performance of governmental functions," said Sophie Sadatney of the Office of Legislative Council, summarizing the opinion for the committee. She said the panel concluded there is no de minimis exception to the intergovernmental‑immunity doctrine: a state law that directly controls federal officers is void regardless of how small or how little it interferes with federal functions.

The ruling shifts the committee’s decision point on S.208, which contains two related components: an identification requirement for law‑enforcement officers and limits on facial coverings. "That changes the decision points that we have in this committee on this particular bill," the chair said at the start of the hearing.

Sadatney told members that California’s district court had distinguished the visible‑identification requirement from ordinary regulations such as traffic laws, but the Ninth Circuit panel disagreed for the provision at issue. She noted the California statute also included a policy‑posting provision (an agency that adopts and publicly posts a written policy would avoid criminal penalties), but that part was not before the Ninth Circuit and thus was not addressed by the panel.

Committee members and counsel discussed options. Sadatney said the Ninth Circuit decision is not binding in the Second Circuit (which covers Vermont), but appellate courts commonly consider each other’s reasoning. She outlined California’s potential next steps — en banc rehearing, Supreme Court review — and cautioned that without a circuit split the Supreme Court is less likely to take the case.

Law‑enforcement leaders who testified urged a policy‑first approach. "This isn't really a matter for a state statute in Vermont, but rather a matter for policy — individual agencies," said Sean Burke, interim chief of police in Burlington and president of the Vermont Chiefs Association, who testified on behalf of the association. Burke noted Burlington requires officers to wear name tags and carry badge numbers but said smaller agencies may not have consistent practices and that requiring agency names on rain gear or tactical clothing could create unfunded operational challenges.

Burke and other witnesses suggested several alternatives to a new statute: (1) ask the Criminal Justice Council or the Law Enforcement Advisory Board to develop model policy or best practices; (2) incorporate identification and masking guidance into the law‑enforcement code of conduct; or (3) include training at the police academy. Burke cautioned that a January 1, 2027 compliance date would leave little time to craft workable statewide guidance across agencies with different mission sets.

Christopher Bkeel, executive director of the Vermont Criminal Justice Council, told the committee the Council cannot accept complaints against federal officers or discipline them. He warned that if the Council were required to create a statewide policy it would face substantial compliance and monitoring burdens — for example, collecting and verifying that every agency had a publicly posted, current policy. Bkeel recommended that the Law Enforcement Advisory Board lead development of best practices and report back to the commissioner of public safety and the legislature.

The committee also considered statutory drafting changes in S.208 highlighted by legislative counsel. Those edits include language requiring officers to disclose their name and agency "as soon as it is practical and safe to do so," combined plainclothes/undercover exceptions, expanded weather‑based exceptions for facial coverings (temperature, wind chill, humidity, and exposure duration), a civil‑penalty scheme with an administrative‑policy carveout, and a newly added inseparability clause that would render the entire section invalid if any part were held unconstitutional.

Members did not take formal action before the hearing was interrupted: security announced an evacuation of the building late in the session. The committee said it would follow up by email and continue consideration of S.208, including further legal review of the Ninth Circuit opinion and additional witness testimony.

Why it matters: The committee must weigh state policy goals — public accountability and clarity for civilians interacting with officers — against limits the federal Constitution places on states' authority over federal law‑enforcement personnel. Witnesses told lawmakers Vermont can advance identification and masking through agency policy, training, and statewide best practices without necessarily enacting a statute that could prompt litigation.