Fiscal Year 2017 Omnibus Spending Bill Passed By Congress

PORAC is pleased to report that the Fiscal Year 2017 omnibus spending bill passed by Congress today generally maintains—and in some cases increases—funding for programs that support the efforts of law enforcement. During the March fly-in meetings with lawmakers in Washington, D.C., PORAC members strongly urged congressional representatives to preserve funding for critical programs such as Community Oriented Policing Services (COPS) and the Edward Byrne – Justice Assistance Grants (Byrne JAG), among others.

Recognizing the importance of these funding streams to PORAC and the law enforcement community as a whole, Congress included in the bill $221.5 million for the COPS program (an increase of $9.5 million over last year’s level), of which $10 million is slated for Anti-Heroin Task Forces, and $403 million for the Byrne JAG program.

PORAC thanks lawmakers for their efforts to support law enforcement through this funding bill, and will continue to encourage Congress to support these programs in the budget negotiations for fiscal year 2018.

Federal Legislation – Championing Public Safety Amid Changes in Washington

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

PORAC Advocates for Law Enforcement in D.C.

In late March, more than a dozen PORAC and PORAN members traveled to Washington, D.C., to meet with lawmakers to discuss legislative priorities in the 115th Congress. In total, the group met with more than 30 lawmakers and their staffs, including U.S. Senators Feinstein (D-Calif.), Harris (D-Calif.), Heller (R-Nev.) and Cortez Masto (D-Nev.), as well as House Majority Leader Kevin McCarthy (R-Calif.) and House Minority Leader Nancy Pelosi (D-Calif.). PORAC also met with staff from the House Education and Workforce Committee and the Department of Education’s Office of Safe and Healthy Students.

PORAC expressed its strong support for the preservation of a number of grant programs administered by the Department of Justice (DOJ), including Community Oriented Policing Services grants, Byrne Justice Assistance Grants and High Intensity Drug Trafficking Area grants. PORAC was encouraged by the response from lawmakers, who recognized the value of these programs and expressed commitment to their continued funding. The group also discussed the urgent need for 9-1-1 emergency system reform, explaining how the existing infrastructure has not kept pace with modern technologies and is compromising public safety. Additionally, PORAC outlined its concerns with a House-passed bill that would update the Electronic Communications Privacy Act and suggested changes that the Senate should incorporate when it considers the issue.

It was clear throughout the two days of meetings that lawmakers have come to value PORAC’s input on policy and are very interested in learning about its position on a range of issues.

Trump Takes Action to Combat Opioid Abuse

On March 29, President Trump signed an executive order establishing the President’s Commission on Combating Drug Addiction and the Opioid Crisis. The mission of the initiative is to “study the scope and effectiveness of the federal response to drug addiction and the opioid crisis” and make recommendations for improvement. To lead the commission, President Trump chose New Jersey Governor Chris Christie, who has been working to address the scourge of opioid abuse and heroin use in his state. Attorney General Jeff Sessions will also have a seat on the panel.

The commission is designed to identify and describe existing federal funding used to combat drug addiction and the opioid crisis; assess the availability and accessibility of drug addiction treatment services and overdose reversal throughout the country, and identify underserved areas; report on best practices for addiction prevention, including health-care provider education, evaluation of prescribing practices and effectiveness of state prescription drug monitoring programs; and make recommendations to the president for improving the federal response to drug addiction and the opioid crisis. After 90 days, the commission must submit to President Trump an interim report with its preliminary findings, and a final report must be submitted by October 1.

The commission will receive administrative support from the Office of National Drug Control Policy (ONDCP), which will soon be under new leadership. On April 11, President Trump announced his intent to nominate Representative Tom Marino (R-Penn.) to lead the ONDCP as the next so-called “drug czar.” The third-term congressman is a former federal prosecutor and was one of President Trump’s earliest supporters in Congress during the presidential campaign. Last Congress, Congressman Marino introduced the Transnational Drug Trafficking Act (H.R. 3380) to curb drug trafficking across borders, the Senate version of which (S. 1612, introduced by Senator Dianne Feinstein) was signed into law. He is also opposed to loosening restrictions on marijuana and has advocated for mandatory inpatient substance abuse programs for nonviolent drug offenders.

AG Sessions Signals Shift in Enforcement Priorities

In public remarks and in departmental memos, Attorney General Jeff Sessions has indicated that under his leadership the DOJ will prioritize reducing violent crime, with a particular emphasis on dismantling drug cartels and federally prosecuting firearm offenses.

“We’re making sure the federal government focuses our resources and efforts on this surge in violent crime,” Sessions recently told law enforcement personnel in Virginia, highlighting the recent formation of the DOJ Task Force on Crime Reduction and Public Safety to evaluate and improve existing federal efforts. Sessions noted that reducing violent crime depends on confronting the heroin and opioid crisis — and that combating the scourge of illicit drug use depends on securing the nation’s borders and enforcing immigration law. “Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction and misery,” Sessions said. “Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.”

Sessions’ stance on enforcing immigration law is much more stringent than his predecessor’s. This is demonstrated not only by his comments above but also by his announcement in mid-April that sanctuary cities (cities that do not permit municipal funds or resources to be used for, or otherwise prohibit local law enforcement’s participation in, the enforcement of federal immigration law) would be ineligible to receive federal funding from the DOJ if they do not change their policies. “Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the street,” Sessions said, adding that “the DOJ will require jurisdictions seeking or applying for DOJ grants to certify compliance with 1373 [laws requiring local agencies to cooperate with federal immigration enforcement efforts] as a condition of receiving those awards.” It is unclear how the DOJ plans to implement this policy and what exactly the impact would be on the affected jurisdictions.

Supreme Court Update

In recent weeks, the Supreme Court rendered decisions in several cases addressing criminal justice issues, two of which are outlined below.

In a 5–3 decision in Moore v. Texas, the Court held that a state court applied the wrong standards to conclude that a Texas death-row inmate was not intellectually disabled and therefore eligible for execution. Specifically, the Court considered whether the use of outdated medical standards to determine if a person is intellectually disabled and ineligible for execution qualifies as cruel and unusual punishment under the Eighth Amendment. In this case, Moore was sentenced to death in 1980, but he argued that he was exempt from execution because he was intellectually disabled. The Texas Court of Criminal Appeals rejected Moore’s challenge, relying on a set of 1992 standards for evaluating intellectual disability. The Court concluded that the lower court’s reasoning was flawed in many respects, including that it 1) focused too heavily on Moore’s IQ score, 2) did not consider current clinical standards and 3) relied on factors founded in neither medicine nor law. Chief Justice Roberts — along with Justices Samuel Alito and Clarence Thomas — dissented.

In a 6–2 decision in Manuel v. City of Joilet, the Court analyzed whether Fourth Amendment protections applied to a post-arrest seven-week detention, which allegedly was imposed without probable cause and based on false evidence. Justice Kagan, writing for five other members of the court, concluded that an unlawful “pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case.” This conclusion — that the Fourth Amendment governs a claim of unlawful pretrial detention — was the same conclusion reached by 10 other federal appellate courts. Justices Samuel Alito and Clarence Thomas both agreed with the narrow holding of the case — i.e., that “the protection provided by the Fourth Amendment continues to apply ‘after the start of the legal process.’” They disagreed, however, with the suggestion that “new Fourth Amendment claims continue to accrue as long as pretrial detention lasts.”

Federal Legislation – More Executive Orders; Rumored Cuts Worry Law Enforcement

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

President’s Preliminary Budget Plan Targets COPS Funding for Elimination

While President Trump has yet to announce a complete budget for consideration by Congress, his administration has reportedly identified a number of programs that it suggested could be eliminated to reduce the national debt. While many of the programs named — such as the National Endowment for the Arts and National Public Radio — have long been Democratic priorities and thus are unsurprising targets for Republicans, many from both parties did not expect to see law enforcement programs among those proposed to be abolished.

For law enforcement, the most troublesome item on the elimination list is the Community Oriented Policing Services (COPS) Office. COPS grants have been instrumental to the operations of countless police departments across the country. This grant funding, which constitutes the majority of federal support that local departments receive, can assist with technical training, the development of policing strategies, applied research, guidebooks, the hiring of officers (both new and rehired laid-off officers) and the maintenance of officers scheduled to be laid off. In fiscal year 2015 alone, California agencies received $13 million in COPS Hiring Program grants and another 40 various COPS grants totaling $26 million.

The potential elimination of the COPS program is at odds with the pro-law-enforcement tone that President Trump took during his campaign, oftentimes referring to himself as the “law and order candidate.” It also does not seem to align with the priorities that new Attorney General Jeff Sessions pursued while in Congress.

Preserving and increasing COPS Program funding will be a primary topic of discussion during PORAC’s meetings on Capitol Hill this month.

House Expeditiously Passes ECPA Reform Bill, Action in
Senate Uncertain

On February 6, the House of Representatives approved by voice vote the Email Privacy Act (H.R. 387) — a bill to reform the Electronic Communications Privacy Act (ECPA), which extended certain protections for telephone data and electronic data stored on computers. Representative Kevin Yoder (R-Kan.) reintroduced the legislation, which is identical to the bill (H.R. 699) that passed the House 419–0 last year but was not voted on by the Senate. In an unusual procedural move, House leadership brought H.R. 387 directly to the floor without processing it through the Judiciary Committee, the committee with jurisdiction over ECPA, or allowing amendments to be offered. Representative Eric Swalwell (D-Calif.) supported the bill’s passage, but expressed his disappointment in the process by which the legislation was considered — including the failure of the House to address concerns raised by law enforcement.

“Going through the committee process and allowing amendments on the floor would have enabled us to address some of the concerns raised by law enforcement about H.R. 387, such as its view that the bill fails to enable personnel to expediently obtain evidence,” said Swalwell in a speech prior to the bill’s passage. “As a former prosecutor, I share [law enforcement’s] interest in making sure that while we improve privacy protections we do not impede the ability to bring people swiftly to justice.”

Swalwell’s statement echoes remarks he gave when the House passed similar legislation during the last Congress. He called on the Senate to address the points raised by law enforcement in order to improve H.R. 387.

Debate on the issue of updating the Electronic Communications Privacy Act stalled in the Senate last summer as law enforcement organizations raised concerns with certain provisions contained within (as well as omitted from) H.R. 699 and a similar Senate bill, the ECPA Amendments Act (S. 356) sponsored by Senator Mike Lee (R-Utah).

The markup of S. 356 was indefinitely postponed after then Senator Jeff Sessions (R-Ala.) offered a pair of controversial amendments that would have addressed some of law enforcement’s concerns but raised concerns among privacy advocates. The amendments would have 1) required service providers to provide content to law enforcement without a warrant in cases of emergencies and 2) required service providers to provide content without a warrant when the consumer gives consent to access that content. Senator Lee has not reintroduced the ECPA Amendments Act this Congress, and the Senate has not indicated whether it plans to consider H.R. 387 or pursue its own legislation to update ECPA.

ECPA reform will be a key issue that PORAC members will discuss with lawmakers this month during the fly-in.

President’s Executive Orders on Immigration, Travel Restrictions

Less than a week into his presidency, President Trump signed a number of executive orders regarding U.S. immigration policy. The first executive order pertains to border security and immigration enforcement. It notes that the recent surge of illegal immigrants across the U.S.–Mexico border has strained federal resources and overwhelmed agencies tasked with manning the border and enforcing immigration laws. In addition to outlining a policy to end “catch and release” practices, eliminate asylum fraud, and bolster staffing at the Customs and Border Patrol, the order directs the Secretary of Homeland Security to “take all appropriate steps to immediately plan, design and construct a physical wall along the southern border.”

The second executive order aims to end sanctuary cities by suspending federal funding for such municipalities; increase staffing levels at Immigration and Customs Enforcement while empowering those agents to enforce immigration laws; more effectively identify illegal aliens; and create a victim’s advocacy office for victims of crime by illegal aliens. The order notes that “sanctuary cities across the United States willfully violate federal law” and “have caused immeasurable harm to the American people.”

Notably, the order seeks to permit “state and local law enforcement agencies across the country to perform the functions of an immigration officer” within the U.S. to the maximum extent permitted by law. Such authorized actions would include investigating, apprehending and detaining illegal aliens and would support (rather than replace) federal performance of these duties.

The third immigration-related order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” was perhaps the most controversial. The order prohibits people from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the country for 90 days, halts the U.S. refugee program for four months and bans refugees from Syria indefinitely.

The Trump administration noted that it did not provide advance notice of the order to avoid prompting expedited travel by potential terrorists before the new rules took effect. The lack of warning, however, caused significant confusion at airports as border agents tried to implement the new rule. Announcement of the order, which many view as a Muslim ban similar to what Trump promised on the campaign trail, and the ensuing confusion spurred protests across the country and at airports where foreign travelers had been detained.

Not long after the order was issued, a U.S. District Court judge declared a temporary nationwide stay on the order, which was met by an immediate appeal from the Trump administration. At the time this issue went to print, the Ninth Circuit Court of Appeals had upheld the lower court’s stay and the Trump administration announced it would not appeal the decision to the Supreme Court.