Gearing Up for a Busy Fall

Of Counsel
Steptoe & Johnson LLP


Following a hectic July when Congress passed a three-month extension of federal highway funding and also reviewed the pending nuclear agreement with Iran, lawmakers returned to their home states and districts for the August recess (the House recessed on July 29 and the Senate recessed on August 5; both chambers will reconvene on September 8). Lawmakers used the August recess to reconnect with their constituents and hold meetings and events throughout their districts and states.

While Congress is out of session, PORAC used the month of August to prepare for its Washington, D.C., fly-in in September. The fly-in will allow PORAC members to engage with key lawmakers on issues of importance to the law enforcement community, including law enforcement funding.

Once Congress reconvenes after Labor Day, lawmakers are expected to have a busy September session. With few legislative days remaining before the start of the fiscal year on October 1, Congress will likely rush to pass a continuing resolution (commonly referred to as a CR in Washington parlance) that keeps the government temporarily funded and avoids a government shutdown. Also this fall, Congress must address whether to raise the debt ceiling, provide government funding for the remainder of the fiscal year, and extend federal highway funding beyond October 29, the expiration date of the latest short-term highway funding extension.

During the month of August, the presidential election season continued to gear up, with the Republican candidates holding their first presidential debate in Ohio. The 17 candidates discussed a wide range of topics, including government surveillance powers and the encryption of data across technology platforms. Several presidential candidates, including Senator Rand Paul (R-Ky.) and former Secretary of State Hillary Clinton (D-N.Y.) have spoken publicly on policing issues, such as police militarization and prison sentencing reform. As the presidential election approaches, expect these topics to be frequently discussed along the campaign trails and in debates.

This August also marked the one-year anniversary of the fatal shooting of Michael Brown in Ferguson, Missouri. That event, and subsequent events across the United States, sparked a wide-ranging discussion in Washington and across the nation on policing issues. Multiple congressional committees have held hearings on issues such as community-police relations, police militarization, and the use and implementation of body-worn cameras. Lawmakers have also introduced multiple pieces of legislation on such topics. PORAC will continue to meet with members of Congress and their staffs to educate them on issues impacting the law enforcement community and to advocate for PORAC’s priorities.

Senator Tim Scott Introduces Body-Worn Camera Legislation

On July 29, Senator Tim Scott (R-S.C.) introduced the Safer Officers and Safer Citizens Act (S. 1897). The legislation comes in the wake of the April 2015 shooting of Walter Scott (no relation) in North Charleston, South Carolina. Following Mr. Scott’s death, the South Carolina Legislature mandated the use of body-worn cameras (BWCs) for state and local law enforcement agencies. Senator Scott has taken a particular interest in BWC policies following the shooting, even testifying before a Senate judiciary subcommittee in May on the topic.

Senator Scott’s legislation is designed to provide state, local and tribal law enforcement agencies with federal resources to aid in the purchase and initial startup costs of BWC programs. The legislation would create a new grant program through the Department of Justice (DOJ) that would permit state, local and tribal law enforcement agencies that have developed policies and procedures for BWCs to apply for federal funding to assist in the purchase and installation of the agency’s BWC program. The legislation would authorize $100,000,000 annually in grants for fiscal years 2016 through 2021, although Congress would need to appropriate those funds each year. Federal grants to law enforcement agencies would require at least a 25% match in funds from the recipients.

Additionally, agencies will receive preferential consideration for grants if they have developed BWC policies that meet the following criteria:

– The BWC policy was developed in consultation with criminal justice professionals and community members.

– The BWC policy outlines policies and procedures addressing deployment, video capture, privacy protections, viewing, use, release,  storage, retention, the effect on community-policing interactions, and audits and controls.

– A communication and education campaign that involves interested parties (law enforcement, courts, prosecution, the defense bar, civil leadership, labor organizations, victim and juvenile advocates, the media, and the public) is used to support the agency’s BWC policy.

– The BWC policy takes into account best practices of BWC usage as outlined by the DOJ.

– The agency agrees to submit BWC usage data to the DOJ for the purpose of studying the effectiveness of BWCs.

Further, preferential treatment for grants will be given to agencies that have the greatest need for BWCs “based on the percentage of law enforcement officers in the department who do not have access” and for those jurisdictions that have a violent crime rate at or above the national average.

PORAC met with Senator Scott’s office in May, when PORAC President Mike Durant and Vice President Brent Meyer explained the importance of new funds to fully fund BWC grants. PORAC emphasized that BWC funding should be in addition to, rather than supplant or take from, existing law enforcement funding. Senator Scott agreed with PORAC’s concerns, as his legislation would create new funding mechanisms to pay for the proposed grant program. The bill has been referred to the Senate Homeland Security and Governmental Affairs Committee, where it has not yet received a date for further consideration. PORAC will continue to monitor this legislation.

ECPA Reform Legislation Amasses Supermajority in the House

By the end of July, the Email Privacy Act (H.R. 699), sponsored by Representative Kevin Yoder (R-Kan.), obtained a supermajority of support in the House of Representatives, which means that more than 291 members of the House, or two-thirds, are signed on as co-sponsors of the bill. If the bill were to reach the House floor and receive support from all its co-sponsors, the legislation would pass by those votes alone. More importantly, with the support of its co-sponsors, the legislation would have the votes necessary to override a presidential veto. Despite the strong support for the bill, it is unclear when the legislation will move forward, as the legislation is still pending in the House Judiciary Committee.

The Email Privacy Act seeks to reform the Electronic Communications Privacy Act (ECPA) of 1986. The legislation would require the government to obtain a search warrant in order to access the contents of Americans’ electronic communications. While the White House agrees that the “ECPA is outdated” and that it should be reformed, it has not expressed support for any specific reform measure currently in Congress.

PORAC will continue to explain to lawmakers that the ability to obtain and investigate the contents of electronic communications is vital to effective law enforcement. While PORAC supports ECPA reform, PORAC wants to ensure that such legislation does not hinder law enforcement investigations.

Creation of Republican Law Enforcement Task Force

On July 29, 10 House Republicans and one Republican senator launched the Law Enforcement Task Force (LETF). The task force is chaired by Congressman Dave Reichert (R-Wash.), who has over 30 previous years of law enforcement experience. He is not alone — Representative Steve Knight (R-Calif.), who served 18 years with the Los Angeles Police Department, is also a member of the task force. The LETF is backed by the House Republican Policy Committee and aims to empower the Republican Party in the ongoing efforts to improve relationships between law enforcement agencies and the communities they serve. The task force plans to hold hearings on Capitol Hill, travel to communities to meet with relevant stakeholders, and gather information to better inform their work. The LETF hopes to ultimately produce policy recommendations that best resolve the core issues of distrust amongst civilians and the police.

Over the course of the August recess and going into the fall, PORAC plans to meet with the 11 LETF member offices. At these meetings, PORAC will develop relationships with the LETF staff while advocating matters of interest to PORAC.