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

Congress started off 2018 with yet another showdown over government funding. Lawmakers returned from their holiday recess with just a few weeks to negotiate a compromise spending bill by January 19 (the date when appropriations would run out). To avoid a shutdown, Republican leadership in Congress proposed a short-term bill to fund the government at current levels until February 16. To garner support from rank-and-file GOP members and make it difficult for Democrats to vote against the funding package, Republican leadership attached legislation that would delay certain Affordable Care Act-related taxes and reauthorize the Children’s Health Insurance Program (CHIP) for six years.

Complicating the funding fight is an increasingly contentious debate over immigration policy, and the fate of Deferred Action for Childhood Arrivals (DACA) policy beneficiaries in particular. The DACA policy — established by the Obama administration on June 15, 2012, and rescinded by the Trump administration on June 16, 2017 — has allowed certain individuals who were brought to the United States illegally as children to request a renewable two-year period of (1) prosecutorial discretion postponing deportation action against them, and (2) temporary work authorization.

Democrats have threatened to oppose any spending deal that does not include a legislative fix allowing DACA beneficiaries to pursue permanent lawful immigration status. Many Democrats’ preferred solution is to include a bipartisan bill called the Dream Act, which would provide a path to citizenship for DACA beneficiaries, in spending legislation.

The White House and conservative congressional Republicans, while generally in favor of legalizing DACA beneficiaries at least temporarily, have demanded that any legislative DACA fix include funding for increased border security (including a border wall), new limitations on the ability of immigrants to bring members of their extended family to the United States (existing immigration laws allow legal immigrants to sponsor certain family members for faster immigration processing) and an end to the Diversity Visa lottery program, under which the State Department uses a lottery system to grant 50,000 visas per year to immigrants from countries that have historically low rates of immigration to the United States.

At the time this issue went to print, it was still unclear whether lawmakers and the White House would be able to strike a bipartisan deal to keep the government open.

Supreme Court Hears Fourth Amendment Case Concerning Warrantless Searches of Vehicles Parked on Private Property

On January 9, the U.S. Supreme Court heard oral arguments in Collins v. Virginia, a case concerning the scope of the “automobile exception” to the general search warrant requirement imposed by the Fourth Amendment. The automobile exception permits police to perform a warrantless search of a vehicle if (1) the vehicle is readily mobile and (2) the police have probable cause to believe the vehicle contains evidence of a crime.

The central question in Collins is whether a motorcycle parked in the defendant’s driveway is covered by the less stringent warrantless search rules applicable to vehicles (subject to the “automobile exception”), or the more stringent warrantless search rules applicable to the home and the area surrounding the home (called the “curtilage”). The case arose when two law enforcement officers walked up the defendant’s driveway to inspect a motorcycle that they believed had been used to evade them by traveling at dangerous speeds (over 140 miles per hour at times). The officers removed the motorcycle’s cover and inspected its license plate and VIN, from which they learned that the motorcycle was listed as stolen.

The defendant, Ryan Collins, argued at his trial that the license place and VIN should be excluded from evidence because the officers’ inspection of the motorcycle was an unconstitutional warrantless search. He argued that the “automobile exception” did not apply to the search of the motorcycle because it was parked in the curtilage surrounding his home. To support his position, he mentioned Supreme Court precedent establishing that searches of one’s home or the curtilage surrounding one’s home are subject to stricter Fourth Amendment limits than searches of one’s vehicle, because of the stronger expectation of privacy in one’s home than in one’s vehicle.

During oral argument, the justices expressed skepticism of both the rule proposed by Collins (searches of vehicles parked on private property near the home should be subject to the same strict Fourth Amendment protections as searches of the curtilage surrounding the home) and the rule proposed by the State of Virginia (searches of vehicles parked on private property near the home should be subject to the same relatively lax Fourth Amendment protections as searches of vehicles on the road, and thus may be conducted without a warrant under the “automobile exception”).

Justice Alito, for example, said he saw “the invasion of privacy that’s involved in walking a few feet up the driveway” as relatively insignificant, and not much different than the invasion of privacy that would have been involved “if [the] motorcycle had been parked on the street.” Justices Gorsuch and Sotomayor, on the other hand, expressed concern that the State of Virginia’s proposed rule would amount to a large expansion of the automobile exception, and could create an overly broad exception to warrant requirements for searches very close to — or even inside of — the home, which would be inconsistent with a core purpose of the Fourth Amendment. The court is expected to announce its decision in Collins v. Virginia by June.

Law Enforcement Mental Health and Wellness Legislation Signed Into Law

On January 10, President Trump signed into law the Law Enforcement Mental Health and Wellness Act of 2017. The legislation boosts federal support for law enforcement mental health and wellness programs by (1) adjusting certain Department of Justice (DOJ) funding parameters and (2) directing DOJ to report on and develop effective mental health services and practices for adoption by law enforcement agencies. The legislation, which PORAC supported, had broad bipartisan support and passed the House by voice vote on November 28 before passing the Senate on December 21.

Specifically, the legislation frees up additional funding for mental health programs by expanding the scope of allowable uses for DOJ Community Oriented Policing Services (COPS) Office grants to include the creation of peer mentoring mental health and wellness pilot programs at state, local and tribal law enforcement agencies. The new law also directs DOJ to produce reports on mental health practices and services aimed at law enforcement officers. For example, DOJ is required to report on Department of Defense and Department of Veterans Affairs mental health practices and services that law enforcement agencies could adopt.

Under the legislation, DOJ is also required to coordinate with the Department of Health and Human Services (HHS) to produce educational resources for mental health care providers detailing (1) treatments for mental health issues common to law enforcement personnel, and (2) law enforcement agency culture. Finally, DOJ must study and recommend improvements to existing practices and services including crisis hotlines, resources specifically geared to federal officer mental health and wellness, and privacy protections for officers using mental health and wellness services.

FCC Votes to Add “Blue Alerts” to the Country’s Emergency Alerting System

On December 14, the Federal Communications Commission (FCC) issued an order adding a new alert option — a “Blue Alert” — to nationwide emergency alerting systems. The Blue Alerts will be similar to AMBER Alerts (which alert the public to child abductions) and will use the same notification system, except they are intended for use by state and local authorities to alert the public to threats to law enforcement as quickly as possible, and to help apprehend dangerous suspects.

Specifically, according to the FCC, Blue Alerts will notify the public when there is “actionable information related to a law enforcement officer who is missing, seriously injured, or killed in the line of duty, or when there is an imminent credible threat to an officer.” In addition, Blue Alerts will warn members of the public of violent suspects in their communities and provide instructions on what people should do if they encounter such a suspect.

All five FCC commissioners approved of the order, although one, Jessica Rosenworcel, approved in part and dissented in part. Specifically, Commissioner Rosenworcel agreed with the overall decision to create the Blue Alert program, but disagreed with the FCC’s use of an economic metric known as the “value of preventing a fatality” (VPF) in its cost–benefit analysis of the program. The VPF metric is an estimate of the dollar value of the average police officer’s life, which was compared to the average costs borne by the telecom industry to implement the Blue Alert program. Commissioner Rosenworcel wrote in her partial dissent that the “cold calculus” of weighing the cost of telecom industry compliance against the statistically determined dollar value of a police officer’s life “is neither needed nor smart,” and that “there is a way to do cost–benefit analysis thoughtfully and with dignity for those who wear the shield.” Her position is in line with her longstanding commitment to law enforcement. As an FCC commissioner, Rosenworcel has been a vocal advocate for reforming the 9-1-1 system. In fact, PORAC met with her office to discuss 9-1-1 reform in the spring of 2016.