Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

On February 9, President Trump signed into law a sweeping package of federal spending legislation consisting of (1) a six-week stopgap bill to fund federal government operations at prior levels until March 23, 2018, and (2) a wide-ranging, two-year bipartisan budget agreement that:

• Raises government spending limits by $296 billion for FY 2018 (the current fiscal year) and FY 2019 (which begins October 1, 2018)
• Suspends the debt limit through March 1, 2019 (allowing the federal government to borrow what it needs until then to finance government operations)
• Specifically directs $6 billion to programs aimed at addressing the opioid epidemic and mental health issues
• Provides $89.3 billion in disaster aid for areas affected by last year’s wildfires in California; hurricanes in Texas, Florida, Puerto Rico and the U.S. Virgin Islands; and other natural disasters
• Extends a number of temporary tax breaks for certain industries

The legislation, titled the Bipartisan Budget Act of 2018 (H.R. 1892), passed the Senate by a vote of 71–28, and then the House 240–186, early February 9. It ended a brief government shutdown that began at midnight Thursday, February 8, when temporary funding provided under a previous spending resolution ran out. Overall the budget agreement increased discretionary spending caps by $165 billion for defense and $131 billion for non-defense.

Support for the bill was bipartisan — as was the opposition. A group of conservative Republicans voted against the bill because of its high price tag. (The Congressional Budget Office [CBO] estimates the bill will increase federal deficits by approximately $320 billion over 10 years.) Many Democrats, led by House Minority Leader Nancy Pelosi (D-Calif.), voted against the legislation because it failed to include provisions to shield from deportation so-called DACA immigrants brought into the United States illegally as children. While Speaker of the House Paul Ryan (R-Wisc.) pledged to address the immigration issue before an Obama administration policy to defer enforcement action against such immigrants expires in March, Ryan also said he would not bring up a bill for a vote in the House unless it had the support of President Trump and a majority of House Republicans.

The budget agreement clears the way for the House and Senate Appropriations Committees to begin divvying up funds to specific federal programs for FY 2018 in appropriations legislation. Because the budget agreement specifies that the $6 billion it directs to combat the opioid crisis ($3 billion in FY 2018, $3 billion in FY 2019) is for both law enforcement and public health programming, a significant proportion of the funding is likely to be allocated in appropriations bills developed by members of the House and Senate Commerce–Justice-Science (CJS) appropriations subcommittees. The CJS Appropriations Subcommittee in the House is chaired by Representative John Culberson (R-Texas). The Senate CJS subcommittee is chaired by Senator Richard Shelby (R-Ala.). Senator Dianne Feinstein (D-Calif.) is the second-highest-ranking Democrat on the Senate subcommittee.

Congress Passes PORAC-Supported “Kari’s Law” Requiring Multi-Line Telephones to Give Users Direct Access to 9-1-1

On February 9, the House passed H.R. 582, the “Kari’s Law Act of 2017,” by voice vote. Kari’s Law will require multi-line telephone systems (often found in hotels and offices) to have a configuration that permits users to directly call 9-1-1 without having to dial any additional digit, code, prefix or postfix.

PORAC has vocally supported Kari’s Law since it was introduced in prior Congresses and has advocated for its passage in meetings with congressional offices on Capitol Hill during its 2016 and 2017 fly-ins. The legislation was prompted by the murder of Kari Hunt, which took place in a hotel that required users of the hotel’s telephone system to dial an additional number to gain access to an outside line. Despite repeated attempts by Kari’s young daughter to call the police from the hotel room where her mother was being murdered, the child was unable to reach police because she did not know she had to dial “9” to get an outside line.

When this issue went to print, Kari’s Law was at the White House awaiting the president’s signature — which is expected. It will apply to all multi-line telephone systems that are manufactured, imported, installed, offered for first sale or lease, or first sold or leased beginning two years after the date of enactment.

Supreme Court Rules for Law Enforcement in Case Testing Probable Cause and Qualified Immunity Standards

On January 22, the U.S. Supreme Court held in District of Columbia v. Wesby that two D.C. police officers had probable cause to arrest a group of people partying inside a vacant house for trespassing. Considering the “totality of the circumstances,” it was reasonable for the officers to infer that the partygoers knew or should have known they were not authorized to be in the house, the court said. In addition, the court addressed the related question of whether the officers were entitled to immunity from a lawsuit by one of the arrestees (Wesby). Per the opinion, even if the officers did not have probable cause, they were entitled to qualified immunity because, for a lawsuit to proceed against officers in such circumstances, it must be “clearly established” that their conduct was wrong.

On the probable cause question, Justice Clarence Thomas wrote in the opinion for the court that, considered as a whole, the circumstances surrounding the arrests (specifically “the condition of the house and the conduct of the partygoers”) supported a reasonable belief by the officers that the partiers knew they were trespassing. Justice Thomas emphasized that the house was “near-barren” and reasoned that “most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside and to leave their floors filthy.” He added that the partiers’ vague and unconvincing answers to the officers’ questions provided further support for a finding of probable cause. For example, Thomas pointed out that “some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.”

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Kagan and Gorsuch joined Justice Thomas’ opinion, with Justice Sotomayor concurring in the judgment and Justice Ginsburg concurring in the judgment in part. While Justice Ginsburg agreed with the ultimate outcome of the case, she voiced concern over whether the court’s holding weighed “too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” She noted that one of the officers proceeded with the arrests based on his mistaken belief that the law allowed him to arrest the partiers just because they did not have the homeowner’s consent (even if they believed they were permitted to be in the home).

Department of Justice Threatens 23 “Sanctuary Jurisdictions” With Subpoenas, Loss of Federal Funding

On January 24, the Office of Justice Programs (OJP) at the Department of Justice (DOJ) sent letters threatening 23 state and local jurisdictions with subpoenas if they fail to produce “all documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees … regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.”

In the letters, the DOJ explains that it is requesting the documents because it “remains concerned” that the laws, policies, or practices of the jurisdictions may violate a federal law that prohibits state and local government entities from enacting laws or policies that restrict communication with the Department of Homeland Security (DHS) about “information regarding the immigration or citizenship status” of any individual. The letters state that compliance with this law is a precondition for eligibility to receive Byrne Justice Assistance Grant (Byrne JAG) funds. They caution that if a jurisdiction is determined to be out of compliance, DOJ may try to take back FY 2016 Byrne JAG funds or restrict access to FY 2017 funds. Among the jurisdictions that received a letter were the State of California and the following jurisdictions within California: Berkeley, Fremont, the City of Los Angeles, Monterey County, Sacramento County, the City and County of San Francisco, Sonoma County and Watsonville.

Previously, federal courts blocked a Trump administration executive order (EO) that would have denied all federal funding to “sanctuary” localities after the localities successfully argued that the EO was an unconstitutional attempt to coerce state and local governments to administer a federal regulatory program. The wide range of programs and the large amounts of funding that the EO threatened was a factor that federal judges took into account in finding the EO unconstitutionally coercive. The threats in the January 24 letters were comparatively narrow: While Byrne JAG funding is very significant, its loss would not be as devastating to localities as a loss of all federal funding. Thus, the withdrawal of funding threatened in the January 24 letters may survive a legal challenge alleging unconstitutional coercion of localities by the federal government.