Federal Legislation – Law Enforcement Issues Front and Center in Washington, D.C.

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

President Trump Releases FY2018 Budget

On May 23, the Trump administration released its fiscal year (FY) 2018 budget proposal, entitled “A New Foundation for American Greatness.” The budget request would provide $27.7 billion for the Department of Justice, a decrease of $1.1 billion compared to the FY2017 funding level. The budget places a strong emphasis on investing in immigration enforcement and combating violent crime.

Notably, the budget would provide $207 million for the Community Oriented Policing Services (COPS) Hiring Program, an increase of $20.4 million over FY2017. In addition, mandatory funding for the Public Safety Officers Benefits (PSOB) Program is maintained at $72 million (last year’s level) and discretionary funding for the PSOB Disability Benefits and Educational Assistance Programs is increased slightly to $16.3 million. The PSOB programs provide death and education benefits to survivors of fallen law enforcement officers and disability benefits to officers catastrophically injured in the line of duty.

While PORAC is encouraged by the proposed funding levels for these programs, it remains concerned about suggested cuts to a number of other law enforcement-related accounts. Specifically, PORAC strongly opposes the proposal to cut nearly $80 million from the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program — the leading source of federal funding for state and local law enforcement and crime prevention initiatives.

The president’s budget is not a binding document. Rather, it is widely viewed by members of Congress as an indicator of the administration’s priorities and represents a starting point for the congressional appropriations process. The House and Senate are now tasked with establishing their own funding levels for federal programs, and PORAC will continue to register its support for critical law enforcement program funding as Congress develops its own budget.

PORAC Supports McNerney’s Law Enforcement Stamp Effort

In late May, Congressman Jerry McNerney (D-Calif.-9) announced that he and a number of his Democratic colleagues in the House — including California delegation members Grace Napolitano (32nd District), Mike Thompson (Fifth District) and Salud Carbajal (24th District) — are urging the Postmaster General to establish a postage stamp honoring fallen law enforcement officers and providing support for their families.

“Every day, law enforcement officers across the country put their lives on the line in service to the American people,” said McNerney. “Any officer that gives his or her life in the line of duty is a tragedy for their families and for the community. This stamp would not only pay tribute to these brave men and women, but the proceeds from this purchase would go toward helping their families in these tragic situations.”

Knowing PORAC’s expertise, influence and thoughtful approach to policy in the law enforcement space, McNerney’s office contacted PORAC to inform the organization about his efforts and ask for its support. PORAC was pleased to endorse the Congressman’s proposal and letter of support to the Postmaster General.

Congress Advances Key Law Enforcement Bills

In late May and early June, Congress approved a number of bills regarding law enforcement (all supported by PORAC), one of which was signed into law.

On May 18, the House of Representatives passed the Thin Blue Line Act (H.R. 115) on a 271–143 vote. The bill would amend federal criminal law to trigger death penalty considerations for the killing or attempted killing of a police officer, firefighter or other first responder, and covers federal, state and local officials. Republican Congressman Dana Rohrabacher (48th District) is the only co-sponsor from the California delegation. A companion bill, S. 1085, has been introduced in the Senate by Pat Toomey (R-Penn.).

Also on May 18, the House approved the Honoring Hometown Heroes Act (H.R. 1892), with only one lawmaker opposing it. The legislation would authorize state and local officials to order flags flown at half-staff in the event of the death of a first responder who dies while serving in the line of duty. The bill now awaits consideration by the Senate.

Earlier in May, both the House and Senate passed the American Law Enforcement Heroes Act (S. 583), a bipartisan bill that allows Community Oriented Policing Services (COPS) grants to be used for the hiring and training of veterans as career law enforcement officers. Notably, it was co-sponsored by Senators Dianne Feinstein (D-Calif.), Dean Heller (R-Nev.) and Catherine Cortez Masto (D-Nev.). On June 2, President Trump signed S. 583 into law.

DOJ Announces Establishment of National Blue Alert Network

On May 19, the Department of Justice made a long-awaited announcement that it is rolling out the National Blue Alert Network, designed to quickly notify law enforcement agencies and the public about violent offenders who have killed, seriously injured or pose an imminent threat to law enforcement, or when an officer is missing in connection with official duties.

The DOJ, in conjunction with the Federal Communications Commission and the Department of Homeland Security, was directed to establish the notification and information dissemination system by the Rafael Ramos and Wenjian Liu National Blue Alert Act, which was signed into law by President Obama in May 2015. PORAC, the law enforcement community at large and several members of Congress expressed serious concern last year that the network had not been established more than a year and a half after the bill became law. In September 2016, PORAC wrote to Attorney General Loretta Lynch, urging her to swiftly implement the network.

Similar to AMBER alerts, Blue Alerts can be broadcast on television, radio, highway message signs and wireless devices, and provide details about possible offenders, including physical descriptions and vehicle information.

Supreme Court Rules for Law Enforcement in “Provocation” Case

On May 30, the Supreme Court ruled 8–0 in County of Los Angeles v. Mendez to reject a ruling by the Ninth Circuit Court of Appeals based on the “provocation doctrine.” Under that doctrine, a police officer’s use of deadly force may be ruled unlawful if the police officer created the need to use force by acting in an illegal manner.

In the case, two L.A. County Sheriff’s deputies entered a residence in 2010 without a search warrant and witnessed occupant Angel Mendez holding a weapon (which was later learned to be a BB gun). Officers shot Mendez and another occupant multiple times in ostensible self-defense. Mendez, whose leg had to be amputated below the knee, sued the officers, charging them with illegal search and seizure as well as illegal use of force under the Fourth Amendment.

In March 2016, the Ninth Circuit relied on the provocation doctrine and ruled in favor of Mendez, holding that the deputies were “liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Justice Samuel Alito, who wrote the Supreme Court’s unanimous opinion, asserted that the provocation doctrine “is incompatible with our excessive force jurisprudence” and its “fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”

Attorney General Becerra Urges DOJ to Rescind New Sentencing Guidelines

On May 22, California Attorney General Xavier Becerra joined attorneys general from 13 other states and the District of Columbia in urging U.S. Attorney General Jeff Sessions to revoke new instructions recently disseminated by the DOJ regarding its Charging and Sentencing Policy.

In a May 12 memorandum sent to all federal prosecutors, Sessions wrote that under his leadership, a core principle of this policy will be the premise that prosecutors should charge and pursue the most serious offense, and by definition the most serious offenses are those that trigger mandatory minimum sentences. Per the memorandum, any exception to this policy must be justified in writing by the prosecutor and must be approved by a U.S. attorney or assistant attorney general.

In their letter to Sessions, Becerra and the other state attorneys general argued that “there is a strong bipartisan national consensus that the harsh sentencing practices reflected in the new DOJ policy … do not increase public safety, and that consensus is supported by strong data.” The DOJ has not responded publicly to the letter, and it is unclear if it will have any effect on the Charging and Sentencing Policy moving forward.