Federal Legislation – Supreme Court Restricts Cellphone Searches and Union Dues

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.

Federal Legislation – PORAC Storms the Hill

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

Beginning with a proclamation by President John F. Kennedy in 1962 designating May 15 as Peace Officers Memorial Day, National Police Week has blossomed into a nearly monthlong commemoration during which tens of thousands of law enforcement officers from around the world meet in Washington, D.C., to honor those officers who lost their lives in the line of duty. PORAC members participated in a number of National Police Week events, including a candlelight vigil held Sunday evening, May 13, on the National Mall.

Tony Bolanos, Brent Meyer, Don Morrissey, Marcelo Blanco, Barry Donelan, Sen. Kamala Harris, Damon Kurtz, Brian Marvel, Anthony Sanders, Gary Moore, Mike Fender and Rudy Perez

Coinciding with National Police Week, PORAC members also had their second fly-in of the year and met with U.S. Attorney General Jeff Sessions and key members of California’s congressional delegation and their staff, as well as staff on several committees considering legislation important to law enforcement. Over two days, PORAC met with Senator Kamala Harris (D) and Representatives Doris Matsui (D-6th), Paul Cook (R-8th), Eric Swalwell (D-15th), David Valadao (R-21st), Salud Carbajal (D-24th), Julia Brownley (D-26th), Pete Aguilar (D-31st), Norma Torres (D-35th), Duncan Hunter (R-50th), Juan Vargas (D-51st) and Scott Peters (D-52nd). PORAC also met with staff from the offices of Senator Dianne Feinstein (D) and Representatives Mark DeSaulnier (D-11th), Barbara Lee (D-13th), Ro Khanna (D-17th), Steve Knight (R-25th) and Jimmy Gomez (D-34th), as well as majority staff on the House Education and Workforce Committee and House Judiciary Committee.

Funding for DOJ Grant Programs: During those meetings, PORAC members advocated for full funding of the Department of Justice’s (DOJ) Office of Community Oriented Policing Services (COPS Office), the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program and other community policing funding initiatives. They also urged for the passage of a number of bills aimed at supporting law enforcement and enhancing community safety.

Survivor Benefits: PORAC members advocated for H.R. 5060, the Heroes Lesley Zerebny and Gilbert Vega First Responders Survivors Support Act of 2018, to increase the death, disability and education benefit amounts under the Public Safety Officers’ Benefits (PSOB) Program. The PSOB Program provides benefits to eligible public safety officers whose injuries (or deaths) were sustained in the line of duty.

The bill, co-sponsored by California Representatives Raul Ruiz (D-36th-Palm Desert) and Paul Cook (R-8th-Yucca Valley) also would modify certain timing and procedural aspects of the program in an effort to ensure that beneficiaries (police officers and their survivors) receive the full amounts to which they are entitled.

School Safety: To address the recent spate of deadly school shootings, PORAC members expressed support for H.R. 5307, the School Training, Equipment and Protection (STEP) Act of 2018, which would make $50 million in federal education funding available for school safety equipment and other activities, including vulnerability assessments, active shooter training and security equipment. The bill’s sponsor, California Rep. Steve Knight (R-25th-Antelope Valley), reached out to PORAC in March and asked for the Association’s input on the legislation, as well as its support.

DNA Evidence: PORAC members also discussed S. 2345/H.R. 4854, the Justice Served Act of 2018, a bill co-sponsored by Senator Feinstein that would increase the capacity of prosecutors to address the backlog of violent crime cases involving suspects identified through DNA evidence. The bill passed the House on May 15, by a vote of 377-1. Representative Justin Amash (R-Mich.) was the lone dissenter.

Collective Bargaining: Members also advocated for H.R. 4846, the Public Safety Employer-Employee Cooperation Act, which would guarantee certain collective bargaining rights for state and local public safety officers by mandating that state labor laws comply with a set of minimum requirements.

Prison Reform Bill Sees Some Light in the House

With the influx of law enforcement personnel to the nation’s capital, the House again turned its attention to prison reform. In April, the House Judiciary Committee tried to push through a narrow prison reform bill, but scrapped its plans after Senate Judiciary Chairman Chuck Grassley (R-Iowa) and Senate Minority Whip Dick Durbin (D-Illinois) opposed it, saying that it did not cover

Moore, Bolanos, Blanco, Rep. Norma Torres and Fender

enough ground. The bill was supported by Jared Kushner, President Trump’s son-in-law and adviser, who visited Capitol Hill to rally support for it.

Since then, a revised bill that would authorize funding for training programs to help rehabilitate prisoners was introduced in early May. The House Judiciary Committee overwhelmingly voted it out of committee on May 9. At the time this publication went to print, the bill — titled the FIRST STEP Act (S. 2795/H.R. 5682) — sits on the House floor, where it was expected to be voted upon before the Memorial Day recess. Its success in the Senate, though, remains unclear. Although Chairman Grassley prefers a comprehensive reform package, as opposed to bills that tackle only one issue at a time, he has signaled support for this legislation as a means to keep the reform process moving.

If enacted, the FIRST STEP Act would authorize $50 million a year for five years to provide education and vocational training programs to prisoners, and it would allow nonviolent drug offenders to participate in the programs. It also would prohibit the shackling of pregnant female inmates and would allow inmates to earn up to 54 days of “good time” credit a year, up from 47 days a year under current law. Along with the FIRST STEP Act, the House Judiciary Committee also approved of the Protect and Serve Act (S. 2794/H.R. 5698), which would allow for the federal prosecution (under certain conditions) of those who knowingly cause or attempt to cause significant bodily injury to any law enforcement officer. The Protect and Serve Act passed the House on May 16 by a vote of 382-35.

Senate Focuses Efforts on Judicial Nominations

While the House appears to be moving forward with its prison reform bills, the Senate is focused on confirming judicial nominations instead of law enforcement and other legislative initiatives. As President Trump ramps up his efforts to fill the nearly 150 federal judicial vacancies across the country, the Senate Judiciary Committee — the congressional committee tasked with vetting the President’s judicial nominees — has turned its attention to filling these vacancies. Recognizing the President’s desire to reshape the federal judiciary, Chairman Grassley has prioritized holding hearings on President Trump’s nominees and getting them confirmed as quickly as possible. The chairman’s task has been made more challenging because some nominees are not getting the traditional support they usually receive from their home state senators or the American Bar Association.

For example, the Judiciary Committee recently held a confirmation hearing for Ryan Bounds, an assistant United States attorney in Oregon, to become a judge on the U.S. Court of Appeals for the Ninth Circuit, the circuit with appellate jurisdiction over California’s federal district courts. The hearing took place despite the lack of support from both Oregon Senators Ron Wyden (D) and Jeff Merkley (D). The senators objected to Mr. Bounds’ college writings on sexual assault, multiculturalism and the LGBT community.

As Congress heads into summer and gears up for the midterm elections in November, it will be interesting to see whether legislators turn their focus back to the more salient issues facing the law enforcement community.

Federal Grants Open — Apply Now!

The COPS Office recently announced the opening of the following grant program applications:

  • COPS Anti-Heroin Task Force (AHTF) Program: The 2018 Anti-Heroin Task Force Program is a competitive grant program that assists local law enforcement agencies in states with high per capita levels of primary treatment admissions for both heroin and other opioids. AHTF funds are used for investigative purposes to locate or investigate illicit activities related to the distribution of heroin or unlawful distribution of prescription opioids.
  • COPS Anti-Methamphetamine Program (CAMP): The 2018 COPS Anti-Methamphetamine Program is a competitive grant program that advances public safety by providing funds directly to state law enforcement agencies to investigate illicit activities related to the manufacture and distribution of methamphetamine.

Those wishing to apply are encouraged to do so through Grants.gov by June 27. The National Institute of Justice (in partnership with the International Association of Chiefs of Police) also is accepting applications for its Law Enforcement Advancing Data and Science (LEADS) program. Those applications are due June 8. PORAC has posted additional information on these and other grants and the application procedure on its website.