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

On March 6 and 7, PORAC President Brian Marvel and Vice President Brent Meyer met with key federal officials in Washington, D.C., to advocate for the preservation and expansion of law enforcement funding initiatives. They emphasized the critical role played by Department of Justice (DOJ) grant programs and other federal assistance in ensuring state and local law enforcement agencies in California and across the nation have the resources needed to protect their communities.

Over the course of two days, President Marvel and Vice President Meyer met with key members of the California delegation, including Representatives Lou Correa (D-46th), Steve Knight (R-25th), Zoe Lofgren (D-19th), David Valadao (R-21st), Juan Vargas (D-51st), Eric Swalwell (D-15th), Jimmy Panetta (D-20th) and Senator Dianne Feinstein (D). PORAC also met with staff from the offices of Representative Pete Aguilar (D-31st) and Senator Kamala Harris (D) as well as with top officials in the White House, the DOJ Office of Community Oriented Policing Services (COPS) and the D.C. office of Governor Jerry Brown.

The fly-in was well timed, as Congress spent much of March engaged in contentious debates over appropriations legislation to fund federal government programs — including DOJ grant programs — for the remainder of the fiscal year before the stopgap funding bill deadline on March 23.

At press time, congressional leadership felt confident the funding bill would be passed before the March 23 deadline and expected that certain riders would be added. Possibilities include provisions to stabilize the individual health insurance market, technical corrections to the tax reform bill and additional disaster assistance to impacted states.

In the wake of the February school shooting in Broward County, Florida, President Trump and Congress turned their attention to issues such as Second Amendment rights, due process for gun owners, the mental health-care system and school safety. A Trump administration-backed bill to enhance enforcement of the existing National Instant Criminal Background Check System (NICS) has attracted over 60 Senate cosponsors, suggesting it has enough support to overcome a filibuster and pass the Senate. At the time of this writing, however, the bill — titled the Fix NICS Act of 2017 (S. 2135) — had not yet been scheduled for a vote on the Senate floor.

Trump Administration Releases Fiscal Year 2019 Budget Request for Department of Justice Programs

In mid-February, the Trump administration released its fiscal year 2019 congressional budget request for the DOJ. The document outlines proposed funding levels for DOJ divisions including the Office of Justice Programs (OJP) and the Bureau of Justice Assistance (BJA), which administer federal grants to state and local law enforcement agencies and other law enforcement assistance programs.

Citing a need to intensify the Department’s focus on violent crime reduction, immigration enforcement and the opioid crisis, the president’s budget request proposes a number of significant funding shifts, including:

• A 49% cut in funding for the Office of Community Oriented Policing Services (COPS) hiring program.
• Elimination of the $210 million State Criminal Alien Assistance Program (SCAAP) program, which reimburses state and local governments for expenses incurred while detaining illegal immigrants charged with crimes.
• Sustained or increased funding levels for DOJ programs focused on immigration enforcement and combating the opioid crisis. For example, the request calls for a $41 million increase in Drug Enforcement Agency (DEA) funding specifically for opioid-related initiatives (from $25 million enacted in fiscal year 2017 to $66 million in fiscal year 2019).
• Sustained funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program at $403 million, but taking from the total amount of grants available, funding for certain programs previously funded separately, including $22.5 million for the Bulletproof Vest Partnership Grant Program, $22.5 million to support state and local law enforcement agency acquisition of body-worn cameras, and $15 million for the Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability (VALOR) initiative.

It is important to keep in mind that the president’s budget is fundamentally only an advocacy document setting forth the administration’s proposed policies. Congress will establish the funding levels for each agency through the budget resolution and then determine how much money is to be spent on specific programs — including DOJ grant programs — through the appropriations process. In past fiscal years, the amounts eventually allocated to DOJ programs by Congress have generally exceeded the amounts proposed in administration budget requests. Accordingly, PORAC has advocated robust federal grant programs for state and local law enforcement.

House Passes Anti-Online Sex Trafficking Legislation

On February 27, the House of Representatives passed, in a 388 to 25 vote, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2017 (H.R. 1865), a bill sponsored by Representative Ann Wagner (R-Missouri) to create new legal avenues for online sex trafficking victims and prosecutors to hold accountable websites that knowingly aid sex trafficking. PORAC actively supported the legislation.

FOSTA would subject online platforms such as Backpage.com to harsher state and federal penalties when they enable or encourage sex trafficking and prostitution. It would make online classified ad sites more vulnerable to criminal charges and civil suits by creating a new federal crime carrying a sentence of up to 10 years in prison, and by lowering current legal barriers protecting sites from liability for content posted by third-party users.

Included in FOSTA is an amendment offered by Representative Mimi Walters (R-45th), to make it easier for sex trafficking victims to sue the websites that aided in their trafficking, to allow state attorneys general to bring civil suits against online sex trafficking platforms on behalf of trafficking victims and to facilitate federal prosecution of sex trafficking platforms.

Federal Government Sues California Over “Sanctuary” Policies

On March 7, Attorney General Jeff Sessions announced that the DOJ has filed a lawsuit against the State of California challenging certain so-called “sanctuary” laws that restrict the extent to which state and local officials in California assist federal immigration enforcement efforts. The DOJ suit seeks to enjoin and invalidate three 2017 California laws, arguing that they obstruct the federal government’s efforts to enforce immigration laws and therefore violate the Constitution’s Supremacy Clause (which establishes that federal laws generally override conflicting state laws).

The lawsuit specifically targets the following:

• The California Values Act (SB 54), which limits state and local law enforcement officials’ interactions with federal immigration officials.
• The Immigrant Worker Protection Act (AB 450), which restricts employers in the state from sharing certain confidential information about immigrant workers with federal authorities without a subpoena and requires federal officials to obtain a warrant to access non-public work areas.
• A provision enacted in 2017 as part of a public safety omnibus spending bill (AB 103) that empowers the California attorney general to conduct broad inspections of federal immigration detention facilities located in the state.

The role of state and local officials in federal immigration enforcement is an unsettled legal question. The federal government’s argument cites Arizona v. United States, a 2012 Supreme Court ruling that invalidated Arizona statutes granting state officials power to enforce federal immigration law. One Arizona law, for example, empowered state and local law enforcement to make warrantless arrests of suspected illegal immigrants. The Court concluded that by creating and seeking to enforce its own more stringent immigration laws, Arizona had intruded on an area of lawmaking reserved to the federal government and therefore violated the Supremacy Clause of the Constitution. The federal government’s complaint compares California’s “sanctuary” laws to the Arizona laws struck down by the Supreme Court in 2012.

The California Attorney General’s counterargument cites Printz v. United States, a 1997 Supreme Court decision holding that the federal government may not coerce Arizona and Montana law enforcement officials to conduct background checks on gun purchasers in the state. The Court’s conclusion was based on the Tenth Amendment to the Constitution, which protects certain state rights — such as a state’s general police power over its residents — from federal intrusion.

The suit has been filed in the U.S. District Court for the Eastern District of California. The DOJ has requested an initial hearing on April 5, 2018.