Federal Legislation – From March Madness to April Action

Darryl Nirenberg
Eva Rigamonti
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

White House Submits Budget Request for FY2020

While America was captivated in March by the National Collegiate Athletic Association (NCAA) basketball tournament, Washington was preparing for its busiest time of year — appropriations (funding) season.

With the fiscal year (FY) 2019 funding bill signed,1  lawmakers have begun to focus on FY2020 legislation. Congress is in the preliminary stages of appropriations; members of the Appropriations Committee are beginning to hold hearings with relevant agencies to discuss funding priorities. On March 11, President Donald Trump published his 2020 budget proposal, the first step in the federal appropriations process. His proposal asks for $29.2 billion (a reduction of $1.7 billion) to fund the Department of Justice (DOJ), the agency responsible for handling law enforcement priorities, including issuing law enforcement–related grants. 

Among other things, the president’s budget request also asks for:

  • $405 million for the Edward Byrne Justice Assistance Grant (Byrne-JAG) program ($18.5 million less than FY2019 funding).
  • $99 million for the Community Oriented Policing Services (COPS) grant program (compared to $228 million in FY2019 — a $129 million decrease).
  • $200 million in combined funding for the Violent Gang and Gun Crime Reduction/Project Safe Neighborhoods (PSN) program ($50 million more than funding provided in 2019) and the STOP School Violence Act ($25 million more than funding in FY2019). These grants provide important resources to law enforcement for preventing gang violence and active shooter situations, respectively.
  • $492 million in Violence Against Women Act (VAWA) funding ($5 million less than FY2019)
  • $77 million to support human trafficking victims ($8 million less than the funding provided in FY2019).
  • $673 million for the Executive Office for Immigration Review (EOIR) — the office working out of the DOJ responsible for handling all immigration cases — to add 100 additional immigration judge teams (including judges, their support staff, etc.).
  • $2.3 billion to the Drug Enforcement Administration (DEA) to combat the opioid epidemic (including an additional $35 million to enhance heroin enforcement efforts, end anonymous online drug trafficking and pursue bad actors, such as transnational criminal organizations).

Grant programs such as COPS and Byrne-JAG provide critical resources to state and local law enforcement. COPS grants 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. Byrne-JAG is the leading source of funding to local jurisdictions to support law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement and crime victim and witness initiatives.

At the time this issue went to press, PORAC’s Board of Directors was preparing to visit Capitol Hill to discuss law enforcement priorities, including urging California representatives to expand, rather than reduce, funding for these law enforcement programs.

Congress Outlines Judiciary Priorities

House: Judiciary Committee Passes Violence Against Women Act (VAWA)

On March 13, the House Judiciary Committee held a markup (i.e., a committee meeting in which legislators go through the text of a bill and offer amendments) on reauthorizing the Violence Against Women Act (VAWA) (H.R. 1585). The act provides funds to local law enforcement to combat gender-based violence, domestic violence, etc. President Brian Marvel testified to the Senate Judiciary Committee last year on the importance of reauthorizing VAWA funding, highlighting the critical support it provides to state and local law enforcement to protect their communities.

During the markup, several members offered amendments to the legislation unrelated to funding, which caused the bill to be viewed as partisan. While the Committee approved the bill by a vote of 22–11, it passed along party lines. All 22 Democratic members supported the legislation, while all of the Republican members on the Committee voted against it.

The House plans to vote on the legislation in the first weeks of April. PORAC is monitoring the bill and will review the final text with its D.C. federal advocates before expressing a position.

Senate: McConnell Deliberates Nuclear Option to Speed Judicial Confirmations

The Senate reportedly is planning to vote on a measure to change the Chamber’s long-standing rules surrounding debate on district court judges and most lower-level executive nominees. The new rule would limit the amount of time required to debate a nominee from 30 hours to two hours. Senate Republicans hope this change would allow for an expedited process of confirming President Trump’s nominees. As of March 13, President Trump has 128 district court vacancies still left to fill.

Specifically, Senate Majority Leader Mitch McConnell (R–Ky.) is thinking of invoking “the nuclear option” (i.e., approving nominees with a simple majority of 50 votes instead of the typically required 60) to limit debate. While Republicans would prefer to have Democratic support and avoid using the nuclear option, Democrats have signaled that they oppose changing the rule. Republicans argue, however, that if Democrats take back the Senate and the White House in the 2020 elections, they would, according to Senator John Cornyn (R–Texas), “likely pursue the same rule change.”

The Senate plans to vote on the measure before mid-April. 

PORAC Prepares for Capitol Hill Visit

During the last week of March, members of PORAC’s Board of Directors will come to Washington to discuss law enforcement priorities with members of Congress. As of the time this issue went to press, PORAC is scheduled to meet with several members, including Senators Dianne Feinstein and Kamala Harris. The Board is looking forward to representing their members in Washington and advocating for (1) reducing tax penalties that hurt law enforcement and deprive police officers of maximum Social Security benefits; (2) increasing funding of law enforcement grant programs; (3) stopping violence against police; and (4) modifying the Public Safety Officers’ Benefits (PSOB) program to maximize education, death and disability benefits that the program offers law enforcement and their families in the event of a tragedy.

Details of the fly-in meetings will be covered in-depth in next month’s issue.

Federal Legislation – Legislators, Supreme Court Focus on Law Enforcement

Darryl Nirenberg
Eva Rigamonti
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

Law enforcement initiatives have once again become the talk of Washington. Both the House and Senate have passed (or are actively reviewing) legislation to address prison reform and law enforcement grant funding. The Supreme Court has also jumped into the fray, restricting police authority to conduct warrantless searches of rental cars and vehicles in driveways. 

PORAC-Endorsed Project Safe Neighborhoods Grant Program Authorization Act (H.R. 3249) Passes Congress

On June 6, Congress passed the Project Safe Neighborhoods Grant Program Authorization Act (H.R. 3249). The bill creates a grant program at the Department of Justice to help law enforcement combat gang violence and other violent crimes, and directs that funds issued through this program be community-controlled to address local issues.

The act was introduced by Representative Barbara Comstock (R-Va.) in the House and Senator John Cornyn (R-Texas) in the Senate. At the time this publication went to print, it was expected that President Trump would sign the legislation into law. PORAC actively supported the bill.

Prison Reform: House Passes FIRST STEP Act; Presidential Pardons Back in the Spotlight

On May 22, the House passed the FIRST STEP Act (S. 2795/H.R. 5682), which would authorize funding for prison-based training programs intended to help rehabilitate prisoners convicted of nonviolent crimes. The bill quickly sailed through the House, passing by a vote of 360–59. Its fate in the Senate, though, remains uncertain. The Senate is sharply divided on the issue of prison reform, and some reporters have declared the bill to be “dead on arrival.”

Senator Tom Cotton (R-Ark.) contends that the bill is too forgiving of convicted felons, particularly those who have smuggled or sold heroin, opioids or other illegal drugs. On the other side of the aisle, Democrats — including Senators Kamala Harris (D-Calif.), Dick Durbin (D-Ill.) and Cory Booker (D-N.J.) — argue that the bill, by not including changes to sentencing, does not go far enough in providing for comprehensive criminal justice reform. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who also favors a comprehensive reform package, has said his committee will not vote on legislation that does not holistically address the criminal justice system.

Driving this newfound eagerness to tackle prison reform is President Trump. After the House passed the FIRST STEP Act, the president held a summit at the White House and urged a number of senators to sit down at the negotiating table with him. President Trump’s son-in-law and adviser Jared Kushner also is pushing for the bill’s passage.

The White House has been addressing the issue of prison reform at an individual level by granting pardons to nonviolent criminals. Since assuming office, President Trump has pardoned or commuted the sentences of seven individuals, including former Arizona sheriff Joe Arpaio, former U.S. Navy sailor Kristian Saucier, former Vice President Dick Cheney’s chief of staff Lewis “Scooter” Libby, businessman Sholom Rubashkin and political commentator Dinesh D’Souza. President Trump also posthumously pardoned boxer Jack Johnson, the first African American heavyweight champion, after receiving a call from actor Sylvester Stallone. Johnson was convicted in 1913 for violating a Jim Crow–era law that forbade the transportation of a white woman across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose.”

In addition, the president commuted the sentence of Alice Johnson, who had been serving a life sentence for a nonviolent drug crime, after television star Kim Kardashian West visited the White House at the end of May and pushed for Johnson’s release.

President Trump has signaled his willingness to grant pardons and commutations to more individuals. Since his meetings with Stallone and Kardashian West, the president has asked others — including players of the National Football League — for names of those he should pardon.

Senate Cancels Summer Recess to Focus on Nominations and Funding

Senate Majority Leader Mitch McConnell (R-Ky.) announced on June 5 that the Senate’s customary four-week-long summer break (known as the August recess) has been canceled. The reason: so that lawmakers can focus on President Trump’s judicial nominations and the federal budget.

There are nearly 150 judicial vacancies across the country, and Senate Democrats have been using a series of delaying tactics to slow down the process of confirming the president’s nominees. McConnell is hoping the extra time in August will allow the Senate to fill many of these vacancies.

The Senate also needs to pass legislation to fund the government — including the Department of Justice (DOJ) — past September 30. PORAC has been actively pressing for full funding of DOJ grant programs. On June 14, the Senate Appropriations Committee approved this funding, which includes $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). The bill also appropriates $30.7 billion to fund the entire Justice Department, $402.5 million more than was appropriated in FY18.

Congress also is working on the National Defense Authorization Act (NDAA), which includes updates to the Electronic Communications Protection Act (ECPA) (which currently allows law enforcement to search a person’s digital records — such as email — without a warrant, provided that the information is older than 180 days). The amendments to ECPA in the NDAA would require law enforcement to obtain a warrant and notify the individual whose records are to be searched. PORAC opposes these proposed changes.

School Safety Continues to
Be a PORAC Priority

As the rash of school shootings unfortunately continues, PORAC is working with members of Congress to best identify solutions to prevent another tragedy. California Representative Stephen Knight (R-Antelope Valley) recently introduced — with PORAC’s support — a bill to train school faculty and staff on how to safely respond to active shooters. The bill also promotes communication between schools and law enforcement personnel in these situations.

PORAC also is focusing on bills that support school resource officers. One of these bills, the School Resource Officer Assessment Act (H.R. 5242), would require the federal government to conduct a survey on how school resource officers are used across public elementary and secondary schools. The bill unanimously passed the House in May, and PORAC sent a letter to Congress expressing its support. The bill now heads to the Senate for its consideration.

High Court Rules Against Law Enforcement

As the Supreme Court wraps up its 2018 term, it has issued two decisions further restricting a police officer’s ability to search rental cars and vehicles parked in private driveways.

In Byrd v. United States, 584 U.S. ___ (2018), the court held that a person in lawful possession and control of a rental car retains their Fourth Amendment privacy rights in that automobile. In 2014, Terrence Byrd was driving a rental car when he was pulled over by a police officer for a minor traffic infraction. The car had been rented by another individual, who was not in the car at the time it was stopped. The officer searched the vehicle, believing that he did not need Byrd’s consent to search because Byrd was not named on the rental agreement, and subsequently found heroin and illegal body armor. Byrd was convicted and sentenced to 10 years in prison. In reversing the U.S. Court of Appeals for the Third Circuit’s decision upholding the warrantless search, the Supreme Court unanimously held that drivers of rental cars not listed on the agreement retain their Fourth Amendment reasonable expectation of privacy. Police officers may now need to obtain a warrant in order to search a rental car, even if the driver is not listed on the car’s rental agreement. The case was sent back to the Third Circuit to consider the other arguments presented in the case, including whether probable cause justified the search at all.

In Collins v. Virginia, 584 U.S. ___ (2018), the court held that law enforcement officers must obtain warrants before searching vehicles parked in private driveways. At issue in this case was whether the Fourth Amendment’s automobile exception allows an officer without a warrant to enter a home’s “curtilage” (i.e., the area immediately surrounding it) to search a vehicle parked there. The automobile exception allows police to search a car without a warrant if the vehicle is “readily mobile” and there is probable cause to believe it contains evidence of a crime. In an eight-to-one opinion authored by Justice Sonia Sotomayor, the court explained that a warrantless search of a vehicle parked within the curtilage of one’s home is not permissible. In other words, law enforcement can no longer rely on the automobile exception when a car is parked in a private driveway. Absent other circumstances, an officer will first need to obtain a warrant.  

Federal Legislation – Congressional Recess Ends; PORAC Meets With Lawmakers

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

The August congressional recess, the month when lawmakers go home to their districts (and a time to which Washingtonians look forward for 11 months of the year), was not as quiet as anticipated.

In early August, the United Nations Security Council voted unanimously to adopt a resolution imposing additional sanctions on North Korea in response to that country’s growing missile and nuclear weapon program. A mere two days later, North Korea announced, “We will make the U.S. pay by a thousand-fold for all the heinous crimes it commits against the state and people of this country.”

News outlets subsequently reported that U.S. intelligence agencies had determined that North Korea possesses the ability to successfully shrink a nuclear warhead to fit on a missile, a major step in the nuclear missile process. In response to this news and North Korea’s threats, President Donald Trump stated, “They will be met with fire, fury and, frankly, power — the likes of which this world has never seen before.”

On the domestic front, the nation was shocked when an August 12 Unite the Right march of white supremacist and other hate groups (neo-Nazis, the KKK) in Charlottesville, Virginia, escalated into riots between these groups and counter-protestors. After the Governor of Virginia declared a state of emergency and the city of Charlottesville declared the march an unlawful assembly, state police and members of the Virginia National Guard surrounded the park where the demonstration was scheduled to take place. Despite these actions, at least one woman was killed and more than 19 others injured when a white supremacist rammed his car into a group of people protesting the white nationalist rally. The Federal Bureau of Investigation and the Department of Justice have opened a civil-rights investigation to look into the crash. In addition to the civilian death and injuries, two Virginia State Police officers were killed when the helicopter they were using to monitor the riots crashed.

PORAC Back in D.C. This Month to Advocate for Law Enforcement

A number of PORAC members will be in Washington, D.C., this month meeting with lawmakers and government officials to discuss the group’s federal policy priorities. The fly-in comes at a time of heightened activity in the nation’s capital, with debates on health care, the budget and foreign conflicts demanding the attention of Congress.

PORAC plans to remind lawmakers that despite the magnitude of problems on the national and international level, America’s success, stability and safety depends in large part on the well-being of its cities and communities — which, in turn, are able to thrive only when local law enforcement agencies have the support and resources necessary to carry out their duties. This message is particularly important because although the House is scheduled to vote in early September on the Commerce-Justice-Science (CJS) appropriations bill — the legislation that funds the Department of Justice and many law enforcement programs — it is unclear when the Senate will take up its CJS bill, which many expect may just be rolled into a larger funding package at some point in the fall. More information on PORAC’s fly-in will be provided in next month’s column.

DOJ Announces New Program to Combat Opioid-Related Health Care Fraud

On August 2, Attorney General Jeff Sessions announced the rollout of a pilot program administered by the Department of Justice (DOJ) that will focus on combating opioid-related health care fraud. The Opioid Fraud and Abuse Detection Unit seeks to use data analytics to identify and prosecute individuals participating in such fraudulent activities and, in turn, perpetuating the opioid abuse epidemic that has hurt countless individuals, families and communities across the country.

This is the latest federal effort to combat the opioid crisis rocking the nation. Most recent statistics indicate that drug overdose deaths continue to soar above historic numbers. More Americans under age 50 die from drug overdoses than any other cause. Almost 100 people per day die because of opioid overdoses and/or related complications. Experts estimate the opioid epidemic alone could claim nearly 500,000 people across the country in the next 10 years. To put that in perspective, the projections indicate that over a 10-year period, opioids could kill more people in the United States than HIV/AIDS has killed since the 1980s.

Experts agree that one significant cause of the opioid epidemic has been American physicians’ prescription and pain management practices. For that reason, Attorney General Sessions explained that by analyzing data on opioid prescriptions, the DOJ team will be able to detect certain trends in this area, including “which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a doctor’s patients died within 60 days of an opioid prescription; the average age of the patients receiving these prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for opioid issues.”

This analysis will inform the efforts of 12 selected United States Attorney Offices tasked with investigating and prosecuting opioid-related health care fraud. One of the offices chosen to participate in the program is the Eastern District of California, which encompasses Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne counties. These prosecutors will work with state and local law enforcement agencies as well as the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Department of Health and Human Services to root out the health care professionals who are contributing to the crisis by enriching themselves at the expense of public health and safety.

Attorney General Sessions stated that although the fight against opioid abuse will require a multifaceted approach of prevention, enforcement and treatment involving the cooperation of various entities, he is “convinced this is a winnable war.”

Soon after Sessions announced the establishment of the Opioid Fraud and Abuse Detection Unit, President Trump said that he would be taking steps to officially declare the opioid abuse epidemic a “national emergency.” The move toward this designation aligns with a recommendation from the White House’s Opioid Commission, formed earlier this year and led by New Jersey Governor Chris Christie, which called on Trump to make the national emergency declaration.

National emergency designations related to public health and safety are typically reserved for short-term crises such as natural disasters and contagious disease epidemics, so it is unclear how the designation will support the Trump administration’s anti-opioid abuse effort. At the very least, the national emergency declaration would likely allow for specific funding and regulatory waivers that could enhance and expand addiction prevention and treatment programs.

Sessions Implements Immigration Compliance Requirements for DOJ Grant Recipients

On August 3, the DOJ indicated it was looking at criteria relating to localities’ immigration policies, with regard to whether or not the Department would distribute funding under its new Public Safety Partnership (PSP) program. The PSP program, which was announced in June, is funded through the Edward Byrne Memorial Justice Assistance Grant program (Byrne-JAG) and aims to help local agencies better address violent crime in their communities through training and technical assistance.

To be eligible to receive funding from the PSP program, local jurisdictions need to 1) demonstrate a commitment to reducing violent crime; 2) have sustained levels of violence that exceed that national average; and 3) be ready to receive the DOJ training and technical assistance offered through the program. Twelve jurisdictions received PSP funds during the first round of awards, and the DOJ is currently reviewing applications from a number of jurisdictions that are seeking grants in future rounds.

Two such jurisdictions in California, however, the cities of San Bernardino and Stockton, recently received letters from the DOJ in response to their applications for PSP grant funding, requesting a reply to questions related to their illegal immigration policies.

The letter asks whether the jurisdictions have policies in place that ensure that:

1)  U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien and inquire as to his or her right to be or to remain in the U.S;

2)  The jurisdiction’s correctional and detention facilities provide at least 48 hours’ advance notice, where possible, to DHS regarding the scheduled release of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien; and,

3)  The jurisdiction’s correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date in order to permit DHS to take custody of the foreign national.

San Bernardino and Stockton were two of just four jurisdictions nationwide — including Albuquerque, New Mexico, and Baltimore, Maryland — that received such letters. The DOJ is expected to announce the second round of PSP awards later this year.

Federal Legislation – Law Enforcement Issues Front and Center in Washington, D.C.

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

President Trump Releases FY2018 Budget

On May 23, the Trump administration released its fiscal year (FY) 2018 budget proposal, entitled “A New Foundation for American Greatness.” The budget request would provide $27.7 billion for the Department of Justice, a decrease of $1.1 billion compared to the FY2017 funding level. The budget places a strong emphasis on investing in immigration enforcement and combating violent crime.

Notably, the budget would provide $207 million for the Community Oriented Policing Services (COPS) Hiring Program, an increase of $20.4 million over FY2017. In addition, mandatory funding for the Public Safety Officers Benefits (PSOB) Program is maintained at $72 million (last year’s level) and discretionary funding for the PSOB Disability Benefits and Educational Assistance Programs is increased slightly to $16.3 million. The PSOB programs provide death and education benefits to survivors of fallen law enforcement officers and disability benefits to officers catastrophically injured in the line of duty.

While PORAC is encouraged by the proposed funding levels for these programs, it remains concerned about suggested cuts to a number of other law enforcement-related accounts. Specifically, PORAC strongly opposes the proposal to cut nearly $80 million from the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program — the leading source of federal funding for state and local law enforcement and crime prevention initiatives.

The president’s budget is not a binding document. Rather, it is widely viewed by members of Congress as an indicator of the administration’s priorities and represents a starting point for the congressional appropriations process. The House and Senate are now tasked with establishing their own funding levels for federal programs, and PORAC will continue to register its support for critical law enforcement program funding as Congress develops its own budget.

PORAC Supports McNerney’s Law Enforcement Stamp Effort

In late May, Congressman Jerry McNerney (D-Calif.-9) announced that he and a number of his Democratic colleagues in the House — including California delegation members Grace Napolitano (32nd District), Mike Thompson (Fifth District) and Salud Carbajal (24th District) — are urging the Postmaster General to establish a postage stamp honoring fallen law enforcement officers and providing support for their families.

“Every day, law enforcement officers across the country put their lives on the line in service to the American people,” said McNerney. “Any officer that gives his or her life in the line of duty is a tragedy for their families and for the community. This stamp would not only pay tribute to these brave men and women, but the proceeds from this purchase would go toward helping their families in these tragic situations.”

Knowing PORAC’s expertise, influence and thoughtful approach to policy in the law enforcement space, McNerney’s office contacted PORAC to inform the organization about his efforts and ask for its support. PORAC was pleased to endorse the Congressman’s proposal and letter of support to the Postmaster General.

Congress Advances Key Law Enforcement Bills

In late May and early June, Congress approved a number of bills regarding law enforcement (all supported by PORAC), one of which was signed into law.

On May 18, the House of Representatives passed the Thin Blue Line Act (H.R. 115) on a 271–143 vote. The bill would amend federal criminal law to trigger death penalty considerations for the killing or attempted killing of a police officer, firefighter or other first responder, and covers federal, state and local officials. Republican Congressman Dana Rohrabacher (48th District) is the only co-sponsor from the California delegation. A companion bill, S. 1085, has been introduced in the Senate by Pat Toomey (R-Penn.).

Also on May 18, the House approved the Honoring Hometown Heroes Act (H.R. 1892), with only one lawmaker opposing it. The legislation would authorize state and local officials to order flags flown at half-staff in the event of the death of a first responder who dies while serving in the line of duty. The bill now awaits consideration by the Senate.

Earlier in May, both the House and Senate passed the American Law Enforcement Heroes Act (S. 583), a bipartisan bill that allows Community Oriented Policing Services (COPS) grants to be used for the hiring and training of veterans as career law enforcement officers. Notably, it was co-sponsored by Senators Dianne Feinstein (D-Calif.), Dean Heller (R-Nev.) and Catherine Cortez Masto (D-Nev.). On June 2, President Trump signed S. 583 into law.

DOJ Announces Establishment of National Blue Alert Network

On May 19, the Department of Justice made a long-awaited announcement that it is rolling out the National Blue Alert Network, designed to quickly notify law enforcement agencies and the public about violent offenders who have killed, seriously injured or pose an imminent threat to law enforcement, or when an officer is missing in connection with official duties.

The DOJ, in conjunction with the Federal Communications Commission and the Department of Homeland Security, was directed to establish the notification and information dissemination system by the Rafael Ramos and Wenjian Liu National Blue Alert Act, which was signed into law by President Obama in May 2015. PORAC, the law enforcement community at large and several members of Congress expressed serious concern last year that the network had not been established more than a year and a half after the bill became law. In September 2016, PORAC wrote to Attorney General Loretta Lynch, urging her to swiftly implement the network.

Similar to AMBER alerts, Blue Alerts can be broadcast on television, radio, highway message signs and wireless devices, and provide details about possible offenders, including physical descriptions and vehicle information.

Supreme Court Rules for Law Enforcement in “Provocation” Case

On May 30, the Supreme Court ruled 8–0 in County of Los Angeles v. Mendez to reject a ruling by the Ninth Circuit Court of Appeals based on the “provocation doctrine.” Under that doctrine, a police officer’s use of deadly force may be ruled unlawful if the police officer created the need to use force by acting in an illegal manner.

In the case, two L.A. County Sheriff’s deputies entered a residence in 2010 without a search warrant and witnessed occupant Angel Mendez holding a weapon (which was later learned to be a BB gun). Officers shot Mendez and another occupant multiple times in ostensible self-defense. Mendez, whose leg had to be amputated below the knee, sued the officers, charging them with illegal search and seizure as well as illegal use of force under the Fourth Amendment.

In March 2016, the Ninth Circuit relied on the provocation doctrine and ruled in favor of Mendez, holding that the deputies were “liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Justice Samuel Alito, who wrote the Supreme Court’s unanimous opinion, asserted that the provocation doctrine “is incompatible with our excessive force jurisprudence” and its “fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”

Attorney General Becerra Urges DOJ to Rescind New Sentencing Guidelines

On May 22, California Attorney General Xavier Becerra joined attorneys general from 13 other states and the District of Columbia in urging U.S. Attorney General Jeff Sessions to revoke new instructions recently disseminated by the DOJ regarding its Charging and Sentencing Policy.

In a May 12 memorandum sent to all federal prosecutors, Sessions wrote that under his leadership, a core principle of this policy will be the premise that prosecutors should charge and pursue the most serious offense, and by definition the most serious offenses are those that trigger mandatory minimum sentences. Per the memorandum, any exception to this policy must be justified in writing by the prosecutor and must be approved by a U.S. attorney or assistant attorney general.

In their letter to Sessions, Becerra and the other state attorneys general argued that “there is a strong bipartisan national consensus that the harsh sentencing practices reflected in the new DOJ policy … do not increase public safety, and that consensus is supported by strong data.” The DOJ has not responded publicly to the letter, and it is unclear if it will have any effect on the Charging and Sentencing Policy moving forward.

Federal Legislation – Policymakers Maintain Robust Law Enforcement Funding

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

Congress, Trump Approve Omnibus with Key Funding

On May 5, President Trump signed into law a $1.1 trillion spending measure that funds the federal government through September 30, the end of fiscal year (FY) 2017. The House and Senate voted to pass the measure just days before federal funding was set to expire.

Generally speaking, the FY 2017 spending bill, commonly called the omnibus, maintains funding for the federal government — including a number of fundamental federal law enforcement programs. State and local law enforcement programs were cut very slightly. However, funding for the Community Oriented Policing Services (COPS) Program is sustained at last year’s level and the Edward Byrne Justice Assistance Grant (Byrne-JAG) program received a significant increase in funding. Specifically, the spending package provides:

  • $2.41 billion overall for total state and local law enforcement activities, which is $66.2 million below the comparable FY 2016 level
  • $221.5 million for the COPS Program: within this funding, $137 million is for the hiring of law enforcement, which is the same as the FY 2016 level
  • $376 million for the Byrne-JAG program, which is $29 million above the FY 2016 enacted level
  • $481.5 million for Violence Against Women Prevention and Prosecution programs, which is $1.5 million more than the FY 2016 level
  • $247 million for Juvenile Justice, which is $23.2 million less than the FY 2016 level

During meetings with lawmakers in Washington, D.C., this spring, PORAC strongly advocated for many of these programs and is encouraged that members of Congress heeded law enforcement’s call for continued support for such critical programs.

Comey Ousted, Rosenstein Confirmed as Deputy AG

On May 9, President Trump fired FBI Director James Comey. At the time this issue went to print, the White House was reportedly interviewing a number of candidates for the position, which is subject to Senate confirmation. In the meantime, FBI Deputy Director Andrew McCabe will serve as Acting FBI Director.

On April 25, the Senate overwhelmingly voted to confirm Rod Rosenstein as the Deputy Attorney General at the Department of Justice (DOJ) by a vote of 94–6. Notably, Senators Kamala Harris (D-Calif.) and Catherine Cortez Masto (D-Nev.) opposed the nomination.

Rosenstein was the U.S. Attorney in Maryland for the past 12 years, where he established a record of independence and was well respected by both the Democratic and Republican administrations under which he served. As the second-highest ranking official at the DOJ, Rosenstein may be required to lead investigations from which Attorney General Jeff Sessions has recused himself — including those related to Russian interference with the presidential election.

Many policymakers are watching to see how Rosenstein’s legal style complements — or potentially conflicts with — that of Attorney General Sessions. For instance, Rosenstein views the scourge of opioid abuse as a public health crisis that requires possible treatment and rehabilitation for offenders, while Sessions has expressed a strong preference for a strict enforcement approach, including mandatory minimum sentences, and believes that Americans have developed “too much tolerance for drug use psychologically, politically, [and] morally.” Attorney General Sessions has already begun to push this approach. On May 12, he rolled back an Obama-era policy that directed prosecutors not to apply mandatory minimums to nonviolent offenders, and revived a policy established under President George W. Bush to charge offenders with the “most serious readily provable defense.”

Judge Blocks Executive Order on Sanctuary Cities

On April 25, a federal judge blocked an executive order that aimed to prevent so-called “sanctuary cities” — those municipalities that limit cooperation with federal immigration law enforcement efforts — from receiving federal funds. President Trump signed executive order “Border Security and Immigration Enforcement Improvements” on January 25, and a number of cities promptly filed lawsuits against the action.

The ruling came just days after Attorney General Sessions sent letters to eight U.S. cities and the California Board of State and Community Corrections threatening to withhold their federal funding if they did not cooperate with federal immigration enforcement efforts. Sessions’ letters — addressed to the government officials of New York City, Chicago, Miami, Philadelphia, Las Vegas, Milwaukee and Sacramento — requested that the municipalities provide the DOJ with the proper documentation to verify that they are in compliance with federal immigration information-sharing requirements. Despite the court’s ruling on the executive order, the DOJ is still seeking this information from entities addressed in Sessions’ letters. If these jurisdictions do not submit documentation by June 30, the DOJ has said it will withhold their Byrne-JAG funding.

In meetings with lawmakers, PORAC has expressed serious concern that if local law enforcement agencies are required to perform the duties of federal immigration enforcement officers, their ability to effectively protect the communities they serve could be impeded.

Spotlight on Legislation

Since the start of the 115th Congress in January, PORAC has been actively monitoring legislation that impacts law enforcement and has taken a position on a number of bills. Below are three bills for which PORAC has expressed support.

Juvenile Justice and Delinquency Prevention Reauthorization Act (S. 860), introduced by Senate Judiciary Chairman Chuck Grassley (R-Iowa) and co-sponsored by California’s senior Senator, Dianne Feinstein (D): This bill aims to enhance existing juvenile justice laws and programs by improving treatment for juvenile offenders with mental illness and substance abuse issues; encouraging states to identify, report and reduce racial and ethnic disparities for youth who enter the juvenile justice system; supporting alternatives to incarceration, such as problem-solving courts; and strengthening oversight of the federal grant program to hold states accountable for failing to meet grant requirements. S. 860 is pending before the Senate Judiciary Committee.

Law Enforcement Mental Health and Wellness Act (S. 867/H.R. 2228): This bicameral, bipartisan legislation was introduced by Senator Joe Donnelly (D-Ind.) and Representative Susan Brooks (R-Ind.). Senator Feinstein is co-sponsoring the Senate bill, and Representatives Eric Swalwell (D-Calif.) and Paul Cook (R-Calif.) are co-sponsors of the House version. The bill would help law enforcement agencies establish or enhance mental health services for their officers. It would make grants available to implement peer-mentoring pilot programs, develop resources for mental health providers based on the specific mental health challenges faced by law enforcement, and study the effectiveness and impact of crisis hotlines and annual mental health checks for officers. Further, it would direct the DOJ, the Department of Defense (DOD), and the Department of Veterans Affairs (VA) to examine how the DOD and VA’s mental health practices and services could be adopted by law enforcement agencies.

While the intersection of mental health and law enforcement has come to the forefront in recent years, the conversation has predominantly focused on the needs of the justice-involved population rather than the officers themselves. Acknowledging and addressing the mental health needs of law enforcement is a worthy goal and investment. S. 867 is currently pending before the Senate Judiciary Committee, and H.R. 2228 is currently pending before the House Judiciary Committee.

Elder Abuse Prevention and Prosecution Act (S. 178), introduced by Senator Grassley and co-sponsored by Senator Feinstein: PORAC supported this bill last Congress, and is advocating again for its passage in the 115th Congress. This bill aims to combat the abuse and exploitation of seniors by expanding education, prevention and prosecution tools to reduce crimes against seniors and bring perpetrators to justice. Specifically, the bill would increase training for federal investigators and prosecutors, and equips each judicial district with at least one prosecutor who has expertise with elder abuse cases. Furthermore, the bill would establish an elder justice coordinator within the Federal Trade Commission; improve information-sharing among government agencies and federal, state and local authorities to develop best practices to combat elder financial exploitation; and increase the penalties for perpetrators of such crimes. S. 178 was approved by the Senate Judiciary Committee on March 23, and is currently awaiting consideration by the full Senate.

Federal Legislation – Championing Public Safety Amid Changes in Washington

Darryl Nirenberg
Eva Rigamonti
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 – Trump Praises Law Enforcement as PORAC Heads to Capitol Hill

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

President Trump Expresses Support for Law Enforcement in Address to Congress

On February 28, President Trump delivered his first speech to a joint session of Congress, striking an optimistic, bipartisan tone. In his speech, Trump touted the executive actions he has taken since his inauguration and outlined some broad objectives that he plans to pursue in conjunction with Congress.

As he regularly did throughout the campaign, Trump spoke very highly of law enforcement and reiterated that it has his full support. To create a future where every American child can grow up in a safe community, attend a great school and have access to a high-paying job, Trump noted, “We must work with — not against — the men and women of law enforcement.” Commending the dedication that law enforcement officers across the country demonstrate daily, Trump added that “they are friends and neighbors, they are mothers and fathers, sons and daughters — and they leave behind loved ones every day who worry whether or not they’ll come home safe and sound.”

As mentioned in last month’s column, Trump’s pro-law-enforcement rhetoric appears to be at odds with his administration’s reported funding priorities at the Department of Justice, as early statements from the White House have indicated that the Community Oriented Policing Services (COPS) Office is under consideration for elimination. Maintaining, and if possible increasing, COPS grant funding is a top priority for PORAC and is one of the key items that the Association’s members discussed with lawmakers during the annual Capitol Hill fly-in.

In addition to supporting those who fight crime, Trump also promised to provide resources for victims of crime — specifically, crimes committed by illegal immigrants. Trump said that he has ordered the Department of Homeland Security to create the Victims of Immigration Crime Engagement (VOICE) Office, with the aim of “providing a voice to those who have been ignored.” In the audience as presidential guests were a number of Californians whose lives have been forever altered by crimes committed by illegal immigrants. Jessica Davis and Susan Oliver attended in honor of their husbands, Placer County Sheriff’s Detective Michael Davis and Sacramento County Sheriff’s Deputy Danny Oliver, who were murdered in October 2014 by an illegal immigrant with a criminal background and two prior deportations. Detective Davis’ daughter was also a guest, and after calling her father a hero, President Trump said that the entire country was supporting and praying for her. Also in attendance was Jamiel Shaw, whose 17-year-old son Jamiel II was murdered by an illegal immigrant gang member in Los Angeles in 2008. Trump promised these family members that their loved ones would never be forgotten and that he “will never stop fighting for justice.”

Fiscal Year 2018 Budget and the Appropriations Process

Every year, Congress must fund the government through the annual appropriations process. That process is initiated when the president submits a budget to Congress. The president’s budget essentially functions as a recommendation, at which point Congress considers and ultimately passes a budget resolution that sets caps on allowable spending for various federal agencies and programs. Working under these budget caps, the Appropriations Committees in the House and Senate begin to formulate 12 spending bills that encompass the entire federal budget.

Members of the Appropriations Committees wield significant influence as to what appears in the 12 spending bills. Prior to committee consideration of the spending bills, appropriators submit their own funding priorities to committee leaders — identifying federal funding and programs that they believe should be maintained, increased, cut back or eliminated altogether. In advance of the deadlines for these member-specific spending submissions, PORAC strongly advocated for the preservation of a number of effective law enforcement programs, especially the COPS Office, in meetings and in correspondence with appropriators.

Under a regular appropriations process, the House Appropriations Committee reports its appropriations bills to the full House for consideration in May and June, while the Senate Appropriations Committee usually begins reporting its appropriations bills in June and begins floor consideration of the bills in June or July. It is difficult to say how the other policy debates in Congress — including on the Affordable Care Act and tax reform — could impact the timing of the appropriations process.

Much of the attention on Capitol Hill has been consumed by the Affordable Care Act deliberations, but budget debates will soon come to the forefront, as government funding for fiscal year (FY) 2017 (which runs through September) is set to expire at the end of April. Republican leaders in Congress had hoped to pass a comprehensive FY2017 appropriations package in December that would have funded the government for the entire fiscal year, but the incoming Trump administration specifically requested that Congress instead pass a stopgap measure that would allow the new president to establish spending priorities. Thus, before adjourning in December, Congress passed a continuing resolution that will fund the government at last year’s levels through April 28, 2017.

Typically, Congress and the White House would work through the federal budgets for each fiscal year in chronological order, but Press Secretary Sean Spicer recently stated that the administration wants to address the FY2018 budget before making final spending decisions in the FY2017 budget. “Once we have a handle on FY18, we can start to backfill ’17,” Spicer said. President Trump presented his preliminary budget to Congress on March 16. It included drastic spending cuts across the federal government, as he has vowed to reduce its size and cost to taxpayers.

Spotlight on Legislation

Since the start of the new Congress in January, PORAC has been actively monitoring legislation that impacts law enforcement and has taken a position on a number of bills. Below is one bill that PORAC has expressed support for, as well as one that the Association opposes.

  • Synthetic Abuse and Labeling of Toxic Substances (SALTS) Act (S. 207): PORAC supports this bill, introduced by Senator Amy Klobuchar (D-Minn.), which is intended to make it easier to prosecute the sale and distribution of synthetic drugs. In recent years, some drug manufacturers have been deliberately exploiting weak labeling laws in order to sell products that, while marked “not for human consumption,” are widely recognized as synthetic drugs that often have dangerous side effects that threaten the safety of the user and other members of the community. S. 207 allows for the consideration of additional factors when determining whether a synthetic product is intended for human consumption — including its known use. This legislative change would make such products (and their producers) easier to prosecute, which in turn would help to drastically reduce the public availability of these deadly substances. S. 207 currently has 11 co-sponsors, including California’s senior senator, Dianne Feinstein.
  • Corey Jones Act (H.R. 158): PORAC opposes this bill, introduced by Representative Alcee Hastings (D-Fla.), which would mandate (as a prerequisite for receiving COPS grant funds) that police departments prohibit plainclothes officers from engaging in routine traffic stops in unmarked vehicles. COPS grants are a critically important source of funding for state and local law enforcement agencies, and the ability to dress in plainclothes while conducting routine traffic stops is an important safety strategy. Threatening the inaccessibility of grant funds based on the use of an effective policing tool would be counterproductive to public safety efforts.

PORAC Members Advocate for Law Enforcement in D.C.

In late March, more than a dozen PORAC members traveled to Washington, D.C., to meet with nearly 40 lawmakers and discuss the Association’s legislative priorities. Among the issues that PORAC discussed were funding for COPS grants, 9-1-1 emergency system reform and responsibly updating the Electronic Communications Privacy Act. A detailed recap of PORAC’s fly-in will be included in next month’s issue.  

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

Darryl Nirenberg
Eva Rigamonti
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.

Federal Legislation – Government Avoids Shutdown as Lame Duck Winds to a Close

Of Counsel
Legislative Assistant
Steptoe & Johnson LLP

Congressional Update

Narrowly avoiding a government shutdown, on December 10 President Obama signed into law a continuing resolution (CR) that will fund the government at last year’s levels through April 28, 2017. The House of Representatives voted 326-96 to approve the measure, and the Senate passed it by a 63-36 vote. Separate legislation that funds military construction projects and veterans programs through September 30, 2017, has already been enacted, but funding for all other aspects of the federal government was set to expire absent passage of this CR.

The CR’s passage in the Senate appeared uncertain as a number of Democrats, led by Senator Joe Manchin (W. Va.), raised concerns late in the process that the bill lacked a long-term extension of benefits for coal miners. Ultimately, the opponents opted not to force a government shutdown over the matter. Senate Majority Leader Mitch McConnell (R-Ky.), who represents thousands of coal miners, insisted that the matter could be addressed in the coming months. “I had hoped we’d get a year [extension]. But we’ve got until the end of April to get at it again,” McConnell said.

In addition to maintaining federal spending at current levels, the CR appropriates additional funding for a number of urgent needs such as overseas war operations, natural disaster relief and water infrastructure repairs in Flint, Michigan.

The House and Senate have adjourned and will resume session when the 115th Congress convenes on January 3, 2017.

President-Elect Trump Continues to Assemble Cabinet

With Inauguration Day just weeks away, President-elect Donald Trump has been busy building his team of top advisors. The nomination that will most directly impact law enforcement is that of Senator Jeff Sessions (R-Ala.) to be the next Attorney General of the United States. As Attorney General, Sessions would have the ability to shape federal policies and oversee the enforcement of federal laws.

Considered one of the more conservative members of Congress, Sessions was the first sitting Senator to endorse Trump for President and began advising the candidate on a number of justice-related issues after announcing his support for the billionaire businessman. In terms of policy, the two are most closely aligned on the issues of illegal immigration and border security. Both Trump and Sessions favor increasing deportations and building a wall on the U.S.-Mexico border to stem the influx of illegal immigrants, which Sessions recently called a crisis “that further undermines the integrity of our immigration system.” Many immigration activists fear that Sessions would exercise his discretion to ramp up enforcement of immigration laws that may not have been as strictly enforced under the Obama Department of Justice (DOJ).

In addition to immigration, surveillance is another policy area where a Sessions-led DOJ may look to take action. Sessions has long supported allowing law enforcement broad access to electronic data pertinent to criminal investigations. For example, when Apple refused to assist the Federal Bureau of Investigations in decrypting the mobile device used by the San Bernardino terrorists, Sessions chastised the company for not understanding the seriousness of the matter. Additionally, when the Senate was planning to consider updating the Electronic Communications Privacy Act (ECPA) this summer, Senator Sessions offered amendments to the legislation that would have required providers to turn over to law enforcement an individual’s electronic communications content (including emails, browsing histories, IP addresses and other information) if a government official declared that it was an emergency. PORAC did not support the overall bill to update ECPA, which ultimately was not voted on by the Senate, but expressed its strong support for the changes proposed by Senator Sessions and believes they would represent an important starting point in remedying the flaws in the bill.

An Attorney General Sessions might also revive enforcement of federal marijuana laws. Under President Obama, the DOJ has largely taken a hands-off approach when it comes to enforcing the Controlled Substances Act’s (CSA) prohibition on marijuana in states that have approved the medical or recreational use of the drug. An outspoken critic of marijuana and staunch opponent to legalization efforts, Sessions could abandon the current approach in favor of stricter CSA enforcement regardless of the decisions made by individual states.

The Attorney General has the authority to investigate accusations of misconduct by law enforcement agencies across the country, a tool that has been used regularly by the Obama DOJ. Through the DOJ’s Civil Rights Division, the administration has investigated incidents in cities such as Baltimore, Maryland, and Ferguson, Missouri. It is unclear whether Sessions would continue to prioritize similar investigations into police misconduct.

As a potential member of the president’s cabinet, Sessions must undergo Senate confirmation, a process with which he is very familiar. Sessions went through the process when he was nominated by President Ronald Reagan to a federal judgeship in 1986, but his confirmation was ultimately denied after lawyers testified that he had used racially charged language during his time as the United States Attorney for the Southern District of Alabama. Sessions has refuted those claims but will likely have to answer for those accusations again as he seeks confirmation as Attorney General.

Feinstein to Assume Judiciary Committee Leadership Post

Senator Dianne Feinstein (D-Calif.) will serve as Ranking Member on the Senate Judiciary Committee in the 115th Congress, becoming the first woman in history to hold the post. Senator Pat Leahy (D-Vt.), who has been the top Democrat on the committee since 2001, vacated the position when he decided to replace retiring Appropriations Committee Ranking Member Barbara Mikulski (D-Md.).

Feinstein’s appointment comes just as the Judiciary Committee is preparing to play a significant role in a range of matters in the coming Congress. The most prominent and pressing issues under the committee’s jurisdiction are the Attorney General and yet-to-be-determined Supreme Court nominations. The committee will also be tasked with any immigration, surveillance and criminal justice reform legislation, among other topics. PORAC has already reached out to Senator Feinstein’s office to discuss a variety of law enforcement matters that will be on the agenda in the next Congress.

Many Democrats are hoping that Feinstein will act as a check on the Trump Administration — a role that the Senator seems eager to embrace. “When President-elect Trump is willing to support responsible policies and nominees, I’ll hear him out, but this committee has a vital role to protect the Constitution and scrutinize policies, senior officials and judges very carefully, and that’s what we intend to do,” Feinstein said.

Becerra Leaving U.S. House to Be California AG

Following the election of outgoing California Attorney General Kamala Harris (D) to the U.S. Senate, Governor Jerry Brown (D) tapped U.S. Representative Xavier Becerra (D) to be the state’s next Attorney General. Becerra, who has served his district since 1993 and is the highest-ranking Hispanic member of Congress, was set to become the top Democrat on the House Ways and Means Committee.

In accepting the nomination, Becerra said that he could not refuse the opportunity to serve his home state. “As former Deputy Attorney General, I relished the chance to be our state’s chief law enforcement officer to protect consumers, advance criminal justice reform and, of course, keep our families safe,” Becerra said.

Shortly after Governor Brown named Becerra as Harris’s replacement, former state Assembly Speaker John Perez announced that he would pursue the seat and quickly earned a number of endorsements — including from Harris and Los Angeles Mayor Antonio Villaraigosa. Within a matter of days, however, Perez removed himself from the race due to a newly diagnosed health condition. State Assemblyman Jimmy Gomez (D) has officially entered the race and earned the endorsements of several Congressional Hispanic Caucus members. Former Bernie Sanders campaign strategist Arturo Carmona (D) and former aide to L.A. City Councilman Jose Huizar Sara Hernandez have also entered the race.

Becerra’s nomination is subject to confirmation by the California State Assembly and Senate. The special election to replace Becerra will likely not be held until spring 2017 and may coincide with already scheduled citywide elections in either March or May.

The Post-Election Landscape

Of Counsel
Legislative Assistant
Steptoe & Johnson LLP

Presidential Race

In a stunning outcome that defied every major national poll and the predictions of countless political pundits, Donald Trump was elected the 45th president of the United States on November 8. Trump amassed a number of victories in key battleground states that ultimately pushed him past the pivotal threshold of 270 Electoral College votes necessary to win, ending the race with 290 to Hillary Clinton’s 228. Trump’s victory will go down as one of the most stunning upsets in American history.

The decisive win hinged on Trump’s success across competitive states that the Clinton campaign was confident it could win. One of the first significant states to fall in Trump’s favor was Ohio, which he won by nearly 10 points and which earned him 18 electoral votes. The Republican nominee also prevailed by roughly four points in North Carolina to earn its 15 electoral votes. In Florida, the race appeared tight all evening, with Trump finally taking all 29 electoral votes after beating Clinton by two points. One of Trump’s most surprising wins came in Pennsylvania, which the Democrats had won in each of the previous six presidential elections, where Trump beat Clinton by more than a percentage point to take home its 20 electoral votes.

While many surmised that Trump’s only route to victory would require him to win Ohio, North Carolina, Florida and Pennsylvania, he went even further by securing upsets in Wisconsin (10 electoral votes) and Michigan (16 electoral votes). Clinton had considered both states relatively safe, not even visiting Wisconsin after the national conventions. Trump did not even campaign in the two states until the election’s final days, but remarkably became the first Republican to win Wisconsin since 1984 and Michigan since 1988.

Although she won in the electoral vote-rich states of California (55), New York (29), Illinois (20) and Virginia (13), Clinton could not make up enough ground to win. As this article went to press, Clinton led the popular vote by more than 2.5 million, but that provides little consolation for a campaign that was aiming to send a woman to the White House for the first time.

In his acceptance speech, Trump congratulated Clinton and called for unity. “Now it is time for America to bind the wounds of division,” said Trump, whose campaign was marked by divisive rhetoric. “To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people.”

In her concession speech, Clinton said that the loss was “painful” but the country must accept the result and look to the future: “Donald Trump is going to be our president. We owe him an open mind and the chance to lead.”

President Obama, who actively campaigned against Trump, spoke from the Rose Garden about the impending transition of power. “It is no secret that the president-elect and I have some pretty significant differences. But, remember, eight years ago President Bush and I had some pretty significant differences,” Obama said. “We are now all rooting for his success in uniting and leading the country.”

Senate Races

In addition to reclaiming the White House, Republicans maintained their majority in the Senate as many of their candidates, similar to Trump, outperformed the numbers they achieved in recent polls. Heading into Election Day, both parties had identified nine pivotal races that were key to Republican Senate control. The GOP won six of those contests.

In North Carolina, Senator Richard Burr (R) was able to hold off challenger Deborah Ross (D). Burr received 51% of the vote to Ross’ 45%, earning a third term. In Florida, Senator Marco Rubio (R) was re-elected by a wide margin, defeating Congressman Patrick Murphy (D) 52% to 44%. While Republicans had long been favored to win in North Carolina and Florida, recent polls had shown the races tightening.

In Missouri, Senator Roy Blunt scored a convincing win (49% to 46%) over Jason Kander (D). Kander, Missouri’s Secretary of State, was polling well in the days before the election but was not able to overcome the down-ballot boost that Trump gave to Blunt.

Another race that did not unfold the way the polling predicted was in Pennsylvania, where Senator Pat Toomey (R) beat Katie McGinty (D) 49% to 47%. Many had anticipated that Democrats would win the seat on their way to reclaiming the Senate majority, but Trump’s impressive performance in Pennsylvania undoubtedly bolstered Toomey’s support.

Defying early predictions that the Republicans would lose Senate seats in Indiana and Wisconsin, voters prevented two Democratic former senators from returning to Congress. Congressman Todd Young (R) beat former Senator Evan Bayh (D) 52% to 42% in the race to replace retiring Indiana Senator Dan Coats (R). Meanwhile, Senator Ron Johnson (R) defeated former Senator Russ Feingold (D) in Wisconsin 50% to 47%. The Democratic challengers in both of these races had been favored early on, but those predictions, too, turned out to be inaccurate.

Democrats did win three key races. In Nevada, former state Attorney General Catherine Cortez Masto (D) beat Republican Congressman Joe Heck 47% to 45% to become the first Latina ever elected to the U.S. Senate. Cortez Masto will replace outgoing Minority Leader Harry Reid (D), who worked hard to ensure that his seat remained in Democratic hands. Democrats also picked up seats in Illinois, where Congresswoman Tammy Duckworth handily defeated Senator Mark Kirk (R), and in New Hampshire, where Governor Maggie Hassan (D) narrowly defeated incumbent Kelly Ayotte (R). Joining the newly elected Democratic women in the Senate is California Attorney General Kamala Harris (D), who will replace retiring California Senator Barbara Boxer after defeating fellow Democrat Loretta Sanchez. PORAC endorsed Senator-elect Harris early in her campaign.

While many had expected the Democrats to win a majority in the Senate, Republicans locked up the majority with at least 51 seats. Louisiana will hold a run-off election in December, and it is likely that Republicans will win that seat to push the majority to 52.

House Races

As recently as October, House Democrats were optimistic that they could put a serious dent in the Republicans’ 247-seat majority and potentially even win control. As race results rolled in on election night, however, it became resoundingly clear that the GOP majority was not in jeopardy. By midday on November 9, Republicans were projected to come away with 239 seats and Democrats were set to hold 193 (with three races remaining undecided). In total, Democrats picked up a net of seven seats — a modest gain considering that many believed Republicans would lose 10 to 20 seats.

Pulling support from Trump voters, the GOP had a strong showing across much of the country, the South in particular. Although Republicans have to be pleased with the overall results, House Speaker Paul Ryan (R-Wisc.) faces uncertainty from the conservative wing within his party. Ryan has said that he will seek the speakership, but his troubled history with the President-elect could complicate matters. Ryan refused to fully support Trump during the campaign, and many in Trump’s camp are concerned about Ryan continuing to serve as Speaker. But it now appears that Trump may be prepared to work with Ryan as Speaker, and that may dampen opposition from within the House Republican conference.

Lame-Duck Period and Looking

Had Hillary Clinton won, the lame-duck period would have likely been very active, with a Republican-controlled Congress moving to impose its legislative will before she took office. Now that the White House will be under Republican control, however, Congress may focus more narrowly on must-pass legislation and organizing for the new Congress.

The priority of the lame-duck period will be to pass a funding package that keeps the federal government operating beyond early December. In September, Congress passed a continuing resolution that funded federal programs until December 9 at last year’s levels. While congressional leaders had been debating whether to pursue a comprehensive spending bill encompassing all federal funding or work to enact a number of smaller appropriations bills, now there is a strong chance that they will simply pass another continuing resolution and try to craft a more comprehensive spending agreement in the new Congress.

An all-Republican Congress and White House should allow the GOP to set the agenda early and work to enact legislation undoing many policies that President Obama put in place over the last eight years, including those established by administrative fiat. Republicans are expected to target, at the outset, the Affordable Care Act (also known as Obamacare), which they have wanted to repeal for years. It remains to be seen, however, whether Republicans will be able to agree on how to address the health care law.

It is also expected that there will be action early next Congress to address what has been one of Trump’s most enduring promises: building a wall on the Mexican border. He is expected to offer a wall-implementation proposal with a more comprehensive infrastructure plan. Even if the concept of a border wall gains widespread support in Congress, debates over how to fund its construction are sure to create controversy. Trump has said many times that he will force Mexico to pay for the wall, while Mexico’s president has strongly denied that possibility.