Darryl Nirenberg
Partner
Josh Oppenheimer
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

This month’s column includes updates on the status of federal funding of justice grant programs and opioid legislation, and discusses the U.S. Supreme Court decisions holding that (1) police must obtain a warrant before accessing cellphone records and (2) teachers, police officers and other public employees cannot be forced to pay dues or fees to support their unions.

Also, this month’s issue features a guest column (see page 34) from Representative Raul Ruiz (D-36) discussing H.R. 5060, bipartisan legislation he has introduced to update the Public Safety Officers’ Benefit (PSOB) Program to provide additional support to the families of fallen or disabled officers. PORAC carried the issue during the May fly-in and has been an active supporter of the bill.

Congress Continues Work on Funding of Justice Department Grant Programs

On June 14, the Senate Appropriations Committee passed the Senate Commerce-Justice-Science Appropriations bill, which funds Department of Justice programs. The bill includes $2.87 billion for state and local law enforcement and crime prevention grant programs, including $445 million for the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program (compared to $405 million in fiscal year 2018), and $40 million for various Community Oriented Policing Services (COPS) grant programs (compared to $19 million in FY18).

On May 17, the House of Representatives passed their Commerce-Justice-Science appropriations bill, which includes $442 million for Byrne-JAG grants, a $27 million increase from FY2018 funding.

The two chambers will now each take up their bill for a vote. Timing is uncertain, although Congress has signaled they would like to vote on appropriations measures before the end of the summer.

Supreme Court Restricts Cellphone Searches and Unions’ Abilities to Collect Dues

In Carpenter v. United States, 585 U.S. ____ (2018), the Supreme Court considered whether the government conducts a search under the Fourth Amendment when it accesses cellphone records that provide detailed data on a user’s movements. In this case, by simply claiming that the information was required as part of an investigation, prosecutors were granted court orders to obtain petitioners’ cellphone records. Wireless carriers produced cell-site location information for the accused person’s phone, and the government was able to obtain location points cataloging his movements.

The individual argued the government’s seizure of the records without a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and the Sixth Circuit Court of Appeals affirmed, holding that the individual lacked a reasonable expectation of privacy because he had shared that information with his wireless carriers. In reversing the Sixth Circuit, the Supreme Court held that the acquisition of the cell-site records was a Fourth Amendment search requiring a warrant.

The Supreme Court’s ruling, however, is fairly narrow and does not otherwise change the third-party doctrine related to other business records that might reveal location information. It also does not address previous rulings related to real-time cell-site location information or “tower dumps,” where police ask for a “dump” of the phone numbers of all devices that connected to a specific cell tower or site during a given period of time in an attempt to identify a suspect.

In Janus v. AFSCME, 585 U.S. ____ (2018), the court considered whether public-sector agency-fee arrangements are unconstitutional. In overruling its 41-year-old precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the 5–4 decision held that Illinois’ extraction of agency fees from non-union public sector employees violates the First Amendment.

This will affect police unions that have contracts requiring all employees to pay a so-called “fair-share fee” to cover the costs of collective bargaining. The unions will now need to lobby public employees to pay full union dues, even though those employees will get the same benefits from the union if they pay nothing at all. Of note, for PORAC members a number of key benefits — including Legal Defense Fund (LDF) coverage — are only available to individuals who maintain their membership in a PORAC-affiliated member association.

PORAC led a coalition of 14 other public safety unions and associations (representing nearly half a million public safety employees nationwide) in the filing of an amicus — or “friend of the court” — brief. PORAC argued that an adverse ruling would send unions into a “death spiral.” Unions would be forced to raise their rates because they would still be responsible for everyone in the bargaining unit despite having less revenue, which, in turn, would make a members’ decision on whether to pay dues even more burdensome.

After the decision was announced, PORAC said in a press release: “This is the dawn of the war against both labor unions and the law enforcement profession in this country, and no association should choose to stand alone. A united voice is more important now than ever before.”

House Sends Opioid Legislation to the Senate

On June 22, the House passed, by a vote of 396–14, H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act.

Included in the H.R. 6 package was a series of House Judiciary Committee-passed bills, including the Stop the Importation and Trafficking of Synthetic Analogues Act (H.R. 2851). The bill updates the Controlled Substances Act (CSA) to provide swifter action to stop the unlawful importation and distribution of synthetic drugs, by giving the United States attorney general the power to quickly and temporarily schedule a new dangerous drug (i.e., a synthetic drug) in a matter of months when it is virtually identical to a currently scheduled drug.

The opioid package of bills has the support of the White House, though it is unlikely the Senate will accept all of its provisions. The upper chamber plans to take up its own opioid legislation and then later work out a compromise on the details. Timing is uncertain, although the Senate could take up the legislation before the end of the summer.