Federal Legislation – Happy New Year: Buckle Up for 2020

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

2019 is behind us. Whether it felt more like a decade or more like a week is up for debate. Yet, 2019 may end up being just the warm-up for 2020, which is set to be just as chaotic, if not more so. At the time this issue went to print, Congress was in the process of reaching a funding agreement with only six days to go before a shutdown, and an impeachment trial in the U.S. Senate for President Donald Trump appeared destined to be the first order of business once Congress returns for the new year.

In addition to an impeachment trial and the inevitable chaos of a presidential election year, Congress will have to find time to address the many priority issues facing Americans — not the least among them are issues facing law enforcement officers across the country.

By any measurement, 2020 promises to be a wild ride. Buckle up: Here’s Steptoe’s 2020 PORAC federal preview.

Trial of the Century?

At the time this issue went to print, the House of Representatives’ public impeachment hearings had concluded and final articles of impeachment (essentially the charges being brought) were drafted. The House was expected to vote on these articles by Christmas, and many expected the articles to be approved on a party-line vote. With the House having concluded its role, impeachment then falls to the Senate for a trial to be presided over by Supreme Court Chief Justice John Roberts.

In the Senate, the schedule and process for the impeachment trial will largely be in the hands of Senate Majority Leader Mitch McConnell (R-Ky.). There have been mixed signals about intentions for the trial. President Trump has expressed some desire for a full list of witnesses, while Majority Leader McConnell has conveyed a desire to expedite the process and limit the participation of witnesses. As it stands now, Senator McConnell has cleared the Senate’s January schedule for the trial.

While conviction and removal is a remote possibility, the impeachment trial will grind the Senate to a halt as it proceeds. The impeachment process requires mandatory attendance for all senators, one of the few instances in which senators are required to physically be in the Senate chamber (and without access to their mobile devices!). This may have an outsized effect on several Democratic candidates for president, specifically Senators Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), Cory Booker (D-N.J.), Amy Klobuchar (D-Minn.) and Michael Bennett (D-Colo.), all of whom will be pulled off the campaign trail in the critical weeks leading up to the Iowa caucuses. Furthermore, no other legislative business can occur while an impeachment trial is underway; the rules require that the trial go six days per week until concluded.

Election Year is Here

As hinted above, the new year is crunch time for Democratic presidential hopefuls. The Iowa caucuses are just a little over a month after New Year’s Day — on Monday, February 3. The first-in-the-nation New Hampshire primary is Tuesday, February 11. From there, the schedule only accelerates to Nevada, South Carolina and a slew of Super Tuesday states in March.1

In the current RealClearPolitics polling average, South Bend Mayor Pete Buttigieg leads the Democratic field in both Iowa and New Hampshire, followed in each state by Senator Bernie Sanders, Senator Elizabeth Warren and former Vice President Joe Biden. Here is where implications from the Senate’s impeachment trial will be most felt, as Warren and Sanders will be set to depart from the campaign trail, while Biden and Buttigieg will be able to continue campaigning in these two critical states.

Of course, the presidential election is not the only election set to occur in 2020. All 435 seats in the House will be up for grabs, as will a third of the Senate. In most election years, congressional action slows to a halt, and there is no indication that 2020 will be any different. Members’ need to campaign frequently and seriously impedes congressional business throughout the year.

Federal Funding in Limbo

Of course, those following the current progress of Congress may be forgiven for shuddering at the idea of an even less functional institution to come. And no issue may illustrate congressional dysfunction better than the seemingly interminable cycle of talks, extensions and gridlock surrounding federal funding for fiscal year (FY) 2020.

Readers of this column may recall that the House first passed the Commerce-Justice-Science (CJS) appropriations package, which includes all federal funding for the Department of Justice and grants for local law enforcement, on June 25. Since then, Congress has avoided a default on the nation’s debt, passed a separate CJS bill out of the Senate, reached a topline agreement on spending and passed two continuing resolutions (CRs) to keep the government running at FY 2019 levels. Despite these actions, a final appropriations package has not been passed or sent to the president.

However, there is some good news on the funding front. Immediately before this issue went to print, House Appropriations Chairwoman Nita Lowey (D-N.Y.) announced that congressional leaders had reached a deal in principle on FY 2020 funding levels. While few details are currently known, it is likely that there will be higher levels of funding for law enforcement priorities than there were in FY 2019. Expect a full summary of law enforcement funding in next month’s edition of this column.

PORAC Priorities in 2020

Even as impeachment proceeds, ballots are cast and Washington descends even further into partisan chaos, PORAC will stay laser-focused on the issues that matter most to law enforcement officers in California and across the country. Because Congress works on a schedule where every “Congress” constitutes two years (and every “session” one year), PORAC will work to further the progress made in 2019 during the final year of the 116th Congress (i.e., 2020). In fact, many of our priorities will remain the same:

  • Protecting the retirement of law enforcement officers — PORAC has worked tirelessly to ensure that every law enforcement officer and first responder can retire with the benefits they so richly deserve. To that end, PORAC has supported several bills — including H.R. 141/S. 521, the Social Security Fairness Act and H.R. 4540, the Public Servants Protection and Fairness Act — to eliminate or reform the Windfall Elimination Provision (WEP), which reduces the Social Security benefit of workers who receive a public pension. Additionally, PORAC has supported and endorsed H.R. 4527/S. 2552, which would allow retiring first responders to buy into Medicare, and H.R. 1256/S. 531, which permits disabled law enforcement officers to receive retirement benefits in the same manner as if they had not been disabled. Together, these bills are a potent package that will ensure that law enforcement officers are able to retire on their own terms.
  • Ending violence against police — As always, PORAC is dedicated to the safety of every police officer and first responder in California and nationally. Thus, the growing anti-police climate in the U.S. — and the observable uptick in assaults on law enforcement officers that has come with it — is of the gravest concern. As a result, PORAC has taken a lead role in addressing this disturbing trend. Working with Congressmen Lou Correa (D-CA-46) and Josh Harder (D-CA-10), PORAC has promoted H.R. 5251, the Improving Community Safety Task Force Act, which would establish a Department of Justice task force to examine the causes of violence against police and how it can be stopped. In addition, PORAC has supported S. 1480, the Back the Blue Act, which would make the assault of a law enforcement officer a federal crime, and H.R. 99/S. 1508, the Thin Blue Line Act, which would increase the penalties for assaults on a law enforcement officer. PORAC will continue to work toward the passage of all these bills in 2020.
  • Use of force — PORAC opposes any change that will undermine the existing federal standard under which a law enforcement officer may use deadly force. In practice, this means that PORAC will continue to oppose Congressman Ro Khanna’s (D-CA-17) bill: H.R. 4359, the PEACE Act. H.R. 4359 would codify a national use-of-force standard that would only permit a police officer to use deadly force when it is “necessary” and a last resort — not when it is “reasonable” for an officer to use that force. If enacted, this would create a highly subjective hindsight standard for evaluating and holding officers criminally liable for using force when responding to split-second, life-or-death situations. PORAC opposes this bill and intends to oppose it until
    the very last day of this congressional session.
  • Fighting for federal funding … again — Although no funding for FY 2020 has yet been enacted, it is never too early to get a head start on FY 2021. Unlike other congressional business, which operates on the two-year cycle briefly mentioned above, funding the federal government happens every year. And, as in past years, PORAC will fight to expand and increase the funding available for law enforcement. The FY 2020 funding looks good, but it can always be better, and PORAC will work to ensure that the vital funding law enforcement relies on is maintained and expanded in FY 2021.

In closing, please accept our wishes for the holiday season, and for a happy, healthy and safe new year to you and yours. It is our honor and privilege to serve as PORAC’s representative here in our nation’s capital. We are grateful for the trust you have put in us and for the sacrifices you and your families make to keep our communities safe. We are eager to continue bringing your voice to Washington in 2020.

Federal Legislation – PORAC Goes to Washington

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

This October 23–24, the PORAC Executive Board, led by President Brian Marvel and Vice President Damon Kurtz, brought the voice of California law enforcement to Washington, meeting with senators, representatives and committees to convey the needs of peace officers across the state.

In total, PORAC met with 31 different offices from every corner of the state of California, as well as several Senate and House committees that handle the issues that matter to PORAC members. A complete list is below.

Rep. Devin Nunes (R–22)

Rep. Mike Levin (D–49)

Rep. Josh Harder (D–10)

Rep. Paul Cook (R–8)

Rep. Lou Correa (D–46)

Rep. Norma Torres (D–35)

Rep. Eric Swalwell (D–15)

Rep. Julia Brownley (D–26)

Rep. Grace Napolitano (D–32)

Rep. Kevin McCarthy (R–23)

Rep. John Garamendi (D–3)

Rep. Jim Costa (D–16)

Rep. Salud Carbajal (D–24)

Rep. Katie Hill (D–25)

Rep. Ken Calvert (R–42)

Rep. Jerry McNerney (D–9)

Rep. Tom McClintock (R–4)

Sen. Dianne Feinstein (D)

Sen. Kamala Harris (D)

Rep. Scott Peters (D–52)

Rep. Zoe Lofgren (D–19)

Rep. Doug LaMalfa (R–1)

Rep. Mark DeSaulnier (D–11)

Rep. Katie Porter (D–45)

Rep. Ro Khanna (D–17)

Rep. Juan Vargas (D–51)

Senate Finance Committee –
Majority

Senate Finance Committee –
Minority

Senate Judiciary Committee –
Majority

House Committee on Ways
and Means – Majority

House Judiciary Committee –
Minority

Through the course of these meetings, PORAC focused on five key issues that affect the everyday lives of law enforcement officers.

Funding for Federal Law Enforcement Grants

Law enforcement across the country relies on grants from the federal government, administered by the Department of Justice, to keep communities safe. While in Washington, PORAC stressed to members of both parties and both chambers the need to maximize that funding.

Opposing a Change in the
National Use-of-Force
Standard

Currently, under federal law, a police officer is allowed to use deadly force if that force is “reasonable” in light of fear of death or serious bodily harm to the officer or another person. H.R. 4359, introduced by Representative Ro Khanna (D–17), would change that standard to only permit a police officer to use deadly force when it is “necessary” and a last resort. This creates a highly subjective hindsight standard for evaluating and holding officers criminally liable for using force when responding to split-second, life-or-death situations.

PORAC has been vocal about its opposition to this bill, which will negatively impact community safety in California by creating a potentially devastating hesitation in officers. During the October fly-in, PORAC directly asked representatives and senators to oppose this legislation and instead work with PORAC to proactively address this complex issue.

Pension Reform Efforts

Workers who split their careers between jobs that require contributions to Social Security and jobs that do not, usually state or local public service jobs like law enforcement, have their Social Security benefit reduced when they reach retirement due to the Windfall Elimination Provision (WEP).

While there are multiple legislative solutions being discussed, including the PORAC-supported Social Security Fairness Act, much of PORAC’s time was spent discussing H.R. 4540, the Public Servants Protection and Fairness Act.

H.R. 4540 seeks to fix the WEP by introducing a new proportional formula designed to ensure public employees receive the benefit to which they are entitled, while also attempting to ensure that no Social Security beneficiary receives an unfair amount of benefit. The bill also includes a provision ensuring that no current or future retiree will be worse off than he or she is presently.

After meeting with the House Committee on Ways and Means, the PORAC Executive Committee voted unanimously to endorse H.R. 4540.

Supporting the Improving Community Safety Task Force Act

Facing a rising tide of violence directed as police, PORAC has worked with Representative Lou Correa (D–46) on the Improving Community Safety Task Force Act. The bill would direct the Department of Justice to convene a task force of law enforcement representatives, community members and policy experts to study incidents where law enforcement officers and other first responders are attacked and incidents involving use of deadly force by law enforcement. This task force would provide recommendations on strategies and policy changes aimed at lessening the frequency of those incidents and enhancing community safety.

The Improving Community Safety Task Force Act will contribute to the safety of law enforcement officers and community members. During the October fly-in, PORAC urged members to cosponsor the legislation.

Protecting the Lives of Peace Officers

In addition to pushing the Improving Community Safety Task Force Act, PORAC has endorsed S. 1480, the Back the Blue Act, in an effort to reduce instances of violence against police.

The Back the Blue Act sends a strong message that there will be no tolerance for any act of violence against a law enforcement officer. It creates a new federal crime for killing, attempting to kill or conspiring to kill a federal judge, federal law enforcement officer, or federally funded public safety officer. Additionally, S. 1480 expands the availability of certain grant funding to improve law enforcement-community relations.

PORAC urged both California senators to cosponsor the legislation while discussing with representatives the possibility for the introduction of an identical bill in the House.

Federal Legislation – Chaos on Capitol Hill

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

It’s finally happened. Here in Washington, it’s all anyone can talk about. The headlines have been impossible to escape, and there’s a new development every day. Hot takes have been fired off faster than the presses can print them.

Speaker of the House Nancy Pelosi (D-Calif.) and House Democrats have pulled the trigger and launched an impeachment inquiry into the conduct of President Donald Trump.

The inquiry, thus far, has focused narrowly on a phone call between President Trump and Ukrainian President Volodymyr Zelensky, in which President Trump pressed for an investigation into the former vice president and current Democratic presidential candidate  Joe Biden. Now, the House will conduct its own investigation into whether the president’s behavior reaches the level of impeachable “high crimes and misdemeanors” before deciding whether to send the matter to the Senate for a trial.

While the question of the criminality of the behavior is for the House to investigate and the Senate to decide, there is a separate, equally relevant question: What does this mean for an already dysfunctional Congress and the work it needs to do?

There’s no easy answer. While Speaker Pelosi and Senate Majority Leader Mitch McConnell (R-Ky.) have at least hinted at a desire to keep the wheels of government moving regardless of impeachment, the process will inject a significant amount of instability into what was already a fraught political situation. Important issues such as surprise medical billing and the United States–Mexico–Canada trade deal (commonly referred to as the new NAFTA) negotiated by President Trump were already on tenuous ground; it is hard to see how impeachment improves their prospects.

One deadline, in particular, looms — November 21, when the continuing resolution (CR) passed and signed in September expires and, unless action is taken, the federal government will shut down for the second time this year. While the Senate has been making some progress on its own set of funding bills and the House passed its package in July, there is always the possibility that talks between the Senate, House and President Trump could break down along the same fault lines as they have in the past. An unpredictable impeachment inquiry only adds another unavoidable obstacle.

In addition to the looming possibility of a government shutdown given the November 21 deadline, vital funding for state, local, and tribal law enforcement grant programs administered by the U.S. Department of Justice is also at stake. As such, PORAC has nothing but appreciation for California Democratic
Representatives Josh Harder, Grace Napolitano, Mike Thompson, Jimmy Panetta, Jim Costa, TJ Cox, and Anna Eshoo, all of whom signed on to a letter (reprinted at the end of this article) urging congressional leadership to prioritize law enforcement funding and maintain the high levels of funding passed by the House. PORAC applauds these lawmakers for standing up for the funding that helps law enforcement keep our communities safe. 

House Ways and Means Chairman Richie Neal Introduces WEP Reform Bill

Despite the uncertainty currently permeating Washington, some legislative business has continued. In a notable example, House Ways and Means Chairman Richie Neal (D-Mass.) introduced his long-awaited legislative fix for the Social Security Windfall Elimination Provision (WEP) — H.R. 4540, the Public Servants Fairness and Protection Act — on September 27.

The WEP has long been a target of PORAC and public employee groups across the country. It reduces the Social Security benefit for workers who are receiving a government pension and as such affects most public employees, including teachers and law enforcement officers. While originally envisioned as a way to ensure that government workers did not receive both a pension and a large Social Security benefit, the effect has instead been to deprive state and local government workers, including law enforcement officers, of the benefits they have earned.

The Public Servants Fairness and Protection Act, as introduced by Representative Neal, seeks to fix the current formula. H.R. 4540 replaces WEP with a new formula called the Public Servant Protection (PSP) formula. Rather than the current and rather arbitrary formula, the PSP would base Social Security benefit payments on the percentage of earnings that were covered by Social Security. Additionally, while the PSP itself is delayed in taking effect, H.R. 4540 stipulates that an extra $150 be added to the benefit of every current retiree who is affected by the WEP. Finally, in a key provision, H.R. 4540 guarantees that no current or future retiree will be worse off under the new formula.

H.R. 4540 is not the first WEP reform bill to have been introduced in this session of Congress. In January, Representative Rodney Davis (R-Ill.) introduced H.R. 141, the Social Security Fairness Act. A Senate companion bill, S. 521, was later introduced by Senator Sherrod Brown (D-Ohio). The Social Security Fairness Act would eliminate the WEP entirely rather than make the more technical fixes prescribed by H.R. 4540. PORAC leadership looks forward to discussing each fix to the WEP with members of Congress during its fall advocacy visit to Washington.

PORAC Heads to Washington

At the time this issue went to print, the PORAC Executive Committee was less than a week away from their semiannual fly-in to Capitol Hill. President Brian Marvel, Vice President Damon Kurtz and other PORAC officers are meeting with senators and representatives from the California delegation on a multitude of issues, including, as previously mentioned, WEP reform. In addition, PORAC will be meeting with members of Congress on federal funding, stressing the need for improved relations between law enforcement officers and the communities they serve and registering their opposition to the national use-of-force bill, H.R 4359, which was recently introduced by Congressman Ro Khanna (D-Calif.). PORAC is excited for the opportunity to bring the issues important to its members to Washington and to advocate on their behalf.

Expect a full report on PORAC’s advocacy in Washington in next month’s issue.

 California Representatives’ Letter to Congressional Leadership on Law Enforcement Funding

As previously mentioned, on September 18, Members of Congress Josh Harder, Mike Thompson, Jim Costa, Anna G. Eshoo, Grace Napolitano, Jimmy Panetta and TJ Cox (all D-Calif.) sent the following letter to House and Senate leaders.

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

Thank you for your leadership of the U.S. House of Representatives and the U.S. Senate. We appreciate the opportunity to work together to support the American people. With the recess behind us, our attention now turns to crafting a compromise on an end of year funding bill to keep the government funded through the 2020 Fiscal Year. While there are many important issues at stake during this effort, our responsibility to ensure robust funding for the state and local law enforcement officers that keep Californians and all Americans safe is paramount.

This critical funding is provided through a number of federal grant programs and direct spending initiatives administered through the Department of Justice (DoJ). In June, the House of Representatives passed a Commerce-Justice-Science appropriations package that expanded funding for law enforcement over FY 2019 levels. The vital appropriations included:

  • $530.25 million for Edward Byrne Justice Assistance Grants (compared to $497 million in FY19);
  • $323 million for the Community Oriented Policing Services (COPS) program (compared to $303.5 million in FY19);
  • $581.5 million to fund the Violence Against Women Act (VAWA);
  • $100 million to support survivors of human trafficking;
  • $2.357 billion for the Drug Enforcement Agency (DEA) to fund additional anti-opioid and gang efforts; and
  • $501 million in assistance to state and local governments for grants authorized by the Comprehensive Addiction and Recovery Act, as well as other opioid-related activities.

Not only do these programs equip California law enforcement officers with the resources they need to protect communities across the state, but they also provide the means to effectively combat broader issues facing Californians and all Americans.

As the Senate considers its own spending measures, I urge you to resist cuts to law enforcement programs. Day in and day out the brave men and women of state and local law enforcement in California and across the country risk their lives to fulfill their duty and keep their neighbors safe. We must now fulfill our duty, and ensure they have the critical resources they need to do their jobs safely, efficiently, and humanely.

Thank you for your time and consideration regarding this request.

Federal Legislation – Wave of Violence Reignites Debate on Guns

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

As members of Congress returned to their districts for the August congressional recess and presidential candidates flocked to the Iowa State Fair, the country was shaken by a series of attacks. Gun violence directed toward civilians and law enforcement alike swept the country in July and August, bringing tragedy to communities and families while upending a political world that had gone dormant during the recess.

Debates over gun violence erupted and mixed with mourning across the country. Victims, politicians and ordinary people across America joined in a national discussion of what federal lawmakers can and should do to stem the tide of mass shootings, massacres and attacks on police. Very little consensus exists, other than that something must be done to prevent the next tragedy, and Washington must be a part of the solution.

Tragedies in Gilroy, El Paso
and Dayton

In the span of one week in late July and early August, mass shootings in three states — Gilroy, California; El Paso, Texas; and Dayton, Ohio — left 36 people dead, including two of the alleged perpetrators. In each incident, a man armed with a semi-automatic, military-style rifle opened fire on vulnerable crowds without warning, shooting indiscriminately at innocents.

In each case, law enforcement was on the scene in seconds or minutes, engaging the shooter and preventing further loss of life.

These shootings sparked calls for stricter restrictions on who is allowed to purchase and possess a firearm, as well as the types of assault weapons used in all three shootings. In addition, the shootings focused attention on the growing specter of white supremacist domestic terrorism. The perpetrator in El Paso explicitly couched his attack in the language of racism, and there appears to be links to white supremacist ideology in the Gilroy shooter’s motivations as well.

In response, Attorney General William Barr made it clear that the Department of Justice was committed to working with law enforcement officers, the first level of defense, to fight this evolving threat. However, some politicians, such as South Bend, Indiana, Mayor and Democratic candidate for president Pete Buttigieg, went further, calling for an initiative to begin dealing with domestic terror groups the way the U.S. deals with foreign terror groups.

Shootout in Philadelphia

On August 14, a shooting of a different kind occurred, as law enforcement officers in the city of Philadelphia were fired on by a heavily armed gunman when attempting to serve a warrant. Hundreds of shots were fired in the ensuing eight-hour standoff, and six police officers were injured, although all have since been released from the hospital. The suspect, 36-year-old Maurice Hill, eventually surrendered and was taken into custody. As a convicted felon, Hill should not have been allowed to be in possession of the firearms he used during his attack.

The attack has triggered a discussion on the topic of gun reform, specifically on how a convicted felon like Hill was able to obtain a weapon, but also on the broader issue of violence against police. Halting the recent outburst of anti-police violence is one of PORAC’s top priorities, and we are working to address this subject in Washington.

Then-Philadelphia Police Commissioner Richard Ross later said it was “nothing short of a miracle” that multiple officers weren’t killed in the incident. Philadelphia’s mayor, Jim Kenney, echoed this sentiment and voiced support for reform, stating that law enforcement officers “deserve to be protected and they don’t deserve to be shot at by a guy for hours with an unlimited supply of weapons.”

Federal Action on Guns?

The rash of violence led to nearly unanimous calls for some degree of action to remove weapons from the hands of those most likely to commit violent acts. Many came from presidential candidates, eager to establish themselves as engaged on the issue. Others came from leaders in the affected communities, such as the previously mentioned mayor of Philadelphia, who lamented the challenges law enforcement endures in the face of widely available firearms. Members of the public made up the majority of the calls to action, as polls show support for gun control rising to previously unthinkable levels. For instance, according to a Fox News poll conducted after the spate of shootings, support for certain gun control measures is up to nine out of 10 Americans.

Additionally, many responses came from members of Congress. But, as in most cases when an issue comes to the attention of Congress, opinions differed, diverged and splintered along partisan and ideological lines. However, despite serious differences, a number of different proposals stood out and have garnered some amount of support.

  • Red Flag Laws — Some Republicans have coalesced around a set of proposals that would encourage states to pass red flag laws: laws which would allow courts, when petitioned by family members or law enforcement, to temporarily ban individuals who pose a significant risk to themselves or others from
    possessing firearms. Senate Judiciary Chairman Lindsey Graham (R–S.C.) is among those spearheading a bipartisan push, and appears to have some support from Senate Majority Leader Mitch McConnell (R–Ky.), as well as President Donald Trump. A recent Fox News poll showed that 81% of the public supports similar measures. While many Democrats also support these laws, Senate Minority Leader Chuck Schumer (D–N.Y.) called settling for red flag laws a “tepid” response to gun violence that would not go far enough.
  • Universal Background Checks — Instead, Senator Schumer indicated Democratic support for red flag laws in conjunction with laws to establish universal background checks and close loopholes that allow buyers to remain unscreened when purchasing firearms from another private individual. A universal background checks bill, H.R. 8, passed in the House in February with some limited bipartisan support. While many Senate Republicans have resisted the measure, Senator Pat Toomey (R–Pa.) is working with Senator Joe Manchin (D–W.Va.) to introduce a Senate version of a universal background check law. Additionally, President Trump has indicated his support for stronger background check laws and has claimed that Senate Republicans share his views. The Fox News poll mentioned above found that 90% of Americans support a background check for all gun sales.
  • A Ban on Assault Weapons — The most controversial proposal, which is also the least likely to be enacted into law, is to bring back the ban on assault weapons that expired in 2004. The proposed bill, H.R. 1296, has significant Democratic support in the House, and a renewal of the ban is also supported by Democratic presidential candidate and former Vice President Joe Biden. However, that same House bill has no Republican cosponsors, has been opposed by Senator McConnell in the past and is extremely unlikely to move forward. Notably, the same Fox News poll that found a staggering rate of support for background checks and red flag measures found that 67% of Americans support a ban.

At the time this issue went to print, Majority Leader McConnell had steadfastly refused to pull the Senate back from recess to consider gun control legislation, despite calls to do so from many Democrats. However, McConnell has vowed to put the issue at the forefront of the agenda when the Senate returns in September and focus on two gun control measures in particular: the red flag law legislation and a bill for universal background checks.

But, as the last several years and failed attempts at reform have proved, there are no sure things when it comes to gun control in Congress.

Federal Legislation – Congress Barrels Forward with Spending Bills

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

As lawmakers prepare to return to their districts for the August recess and, in many states, local election season slated to begin soon afterward, June and July are critical months for the development of federal policy. With deadlines looming, both real and perceived, Congress must fund the federal government for fiscal year (FY) 2020, while also raising the limit on the amount of debt the federal government may incur, and considering pressing policy issues. As a result of this urgency, several PORAC-supported bills important to law enforcement are moving quickly through Congress, while federal funding that plays an indispensable role in keeping communities across the country safe is up for renewal.

Federal Funding Update

While the Golden State Warriors were locked in a battle for their fourth championship in five years, the U.S. House of Representatives moved forward at full throttle, working toward the passage of a series of bills to fund the federal government in FY2020.

On May 22, the House Appropriations Committee passed the Commerce-Justice-Science (CJS) funding bill for FY2020. The CJS bill appropriates funds for the Commerce Department, NASA, the National Science Foundation and, most importantly for law enforcement, the Department of Justice. The Committee maintained the PORAC-endorsed funding levels that had previously been approved by the House CJS Appropriations Subcommittee. Among the funding included in the budget is:

  • $530.25 million for Edward Byrne Justice Assistance Grants (compared to $497 million in FY19)
  • $323 million for the Community Oriented Policing Services (COPS) program (compared to $303.5 million in FY19)
  • $581.5 million to fund the Violence Against Women Act (VAWA)
  • $100 million to support survivors of human trafficking
  • $2.357 billion for the Drug Enforcement Agency (DEA) to fund additional anti-opioid and gang efforts
  • $501 million in assistance to state and local governments for grants authorized by the Comprehensive Addiction and Recovery Act, as well as other opioid-related activities

The bill has been packaged with funding for the departments of Agriculture, Transportation, Veterans Affairs and other programs and sent to the House floor as H.R. 3055. It is scheduled for a vote the week of June 17. Should the bill pass, as is expected, it will continue on to the Senate, where the levels of funding must be agreed to by the Senate Appropriations Committee and subsequently the full Senate. If it clears these hurdles, any differences with the House-passed bill must be reconciled, the unified bill passed by both chambers, and sent to the desk of President Donald Trump for his signature.

There are numerous discrepancies between the House CJS bill and the president’s budget proposal. It seems unlikely that the House funding bill will be signed into law in its current form. If no agreement is reached by September 30 (the end of FY2019), Congress will be forced to pass a short-term continuing resolution (CR) while negotiations continue.1

No matter the course negotiations take, PORAC is committed to working with Congress and the administration to ensure that state and local law enforcement grant programs are fully funded and that law enforcement officers across California have the federal help they need to succeed.

House Judiciary Committee Approves Two
PORAC-Supported Bills

Although much of the focus in the House Judiciary Committee has been on investigating President Trump and his administration, two PORAC-supported bills were approved and reported to the House floor on June 12.

H.R. 1327, the Never Forget the Heroes: Permanent Authorization of the September 11th Victim Compensation Fund Act, sponsored by Representative Carolyn Maloney (D–N.Y.), will extend the authorization for the September 11th Victim Compensation Fund through 2090.

The fund was established in 2001 to aid and compensate the victims of the 9/11 attacks, including many law enforcement officers. H.R. 1327 will ensure these funds do not dry up, and the first responders who performed heroically on 9/11 will continue to receive the compensation they deserve. Maintaining funding for first responders and their families is vital, and PORAC applauds the members of the House Judiciary Committee for prioritizing those affected by those tragic attacks. H.R. 1327 will now move to the House floor for a full vote. An identical bill, S. 546, is sponsored in the Senate by Senator Kirsten Gillibrand (D–N.Y.) and is pending before the Senate Judiciary Committee.

The House Judiciary Committee also approved H.R. 2368, the Supporting and Treating Officers in Crisis Act, introduced by Representative Guy Reschenthaler (R–Pa.).

H.R. 2368, also endorsed by PORAC, would provide a range of support for law enforcement officers and their families as they deal with the daily stress of police work. The bill would improve and expand police officer family services, stress reduction initiatives, suicide prevention programs and various other mental health services. Identical legislation, S. 998, sponsored by Senator Josh Hawley (R–Mo.), has already passed the Senate. If and when H.R. 2368 is taken up and approved by the House, it will be well on its way to becoming law. We will keep you apprised of developments.

Federal Legislation – Law Enforcement Sees Wins in Congress

Darryl Nirenberg
Partner
Josh Oppenheimer
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

May yielded several wins for public safety officers, with Congress pushing law enforcement priorities. The nation’s lawmakers considered several bills relating to law enforcement. While not every law enforcement–focused bill had been passed or signed into law at the time this issue went to print, all of these bills inched closer to becoming law. In addition, during National Police Week (May 12–18), members of PORAC visited the Hill and met with members of the California delegation to discuss PORAC’s priorities for this Congress. As we close the chapter on a spring of successful legislative accomplishments, PORAC will continue working with Congress this summer and fall on priority issues, such as advocating for increased law enforcement funding, expanded police benefits and additional resources that are valuable to PORAC’s members.

Bills Considered by Congress During Police Week

At the beginning of Police Week, PORAC sent letters to all the members of the California delegation with whom the Association met during our spring fly-in asking for their support on the below legislation. We thank them for working on a bipartisan basis to pass these bills. PORAC also would like to thank the bills’ sponsors, including S. 1208 sponsor, Senator Chuck Grassley (R–Iowa); Senator Patrick Leahy (D–Vt.)/Representative Bill Pascrell (D–N.J.), the sponsors of S.1231/H.R. 2379; and Senator Josh Hawley (R–Mo.)/Representative Guy Reschenthaler (R–Pa.), the sponsors of S.998/H.R. 2368.

  • The Protecting America’s First Responders Act (S. 1208): The bill would make a number of improvements to the Public Safety Officers’ Benefits program and provide additional death, disability and education benefits to police officers. PORAC worked closely with Senator Grassley in crafting the legislation and was pleased to endorse the bill. We look forward to working with the House to pass the measure and send the legislation to President Trump to be signed into law.

˚   Sponsor: Senator Chuck Grassley (R–Iowa)

˚   Status: On May 16, the Senate passed the bill unanimously by voice vote and sent it to the House. The measure was then referred to the House Judiciary Committee — the committee with authority over law enforcement–related legislation matters.

  • The Bulletproof Vest Partnership Grant Program Permanent Reauthorization Act (S. 1231/H.R. 2379): The bill would permanently reauthorize the Department of Justice’s (DOJ) Bulletproof Vest Partnership Grant program, allocating $30 million per year to state and local law enforcement agencies for the purchase of bulletproof vests. The program is highly important to police officers — to date, over 13,000 law enforcement agencies have purchased 1.35 million vests with the funding.1 Presuming the bill will be signed into law by President Trump, PORAC members will be guaranteed this funding that is critical to carry out law enforcement’s public safety mission and ensure the safety and security of our members.

˚   Sponsors: Senator Patrick Leahy (D–Vt.)/Representative Bill Pascrell (D–N.J.)

˚   Status: On May 16, the bill was passed by the House with a vote of 400–9 and by the Senate with a unanimous vote. The bill has been sent to President Trump to sign into law.

  • The Supporting and Treating Officers in Crisis Act (S. 998/H.R. 2368): The bill would provide mental health services for police officers (i.e., suicide prevention programs, etc.) and reauthorize certain grant programs that offer family support services to law enforcement officers and their families.

˚                Sponsors: Senator Josh Hawley (R–Mo.)/Representative Guy Reschenthaler (R–Pa.)

˚                Status: On May 16, the Senate passed the bill unanimously by voice vote and sent it to the House. 

Let the Fiscal Year (FY) 2020 Funding Fight Begin: Breaking Down the Appropriations Process for Funding the Department of Justice (DOJ)

On May 17, the House Commerce, Justice, Science and Related Agencies (CJS) Appropriations Subcommittee — the congressional subcommittee that appropriates funding for the DOJ, among other law enforcement agencies — amended and passed legislation to fund such agencies for FY2020.

There are a series of steps, however, that must be taken before the actual funding amounts for the DOJ will be decided. First, the House bill will be considered by the House Appropriations Committee and subsequently the entire House. At the time this issue went to press, the House Appropriations Committee had scheduled a markup (a meeting to review, amend and vote on the bill) for May 22. The bill is expected to pass through committee, and funding numbers for law enforcement are anticipated to remain at their proposed levels (discussed in further detail below).

The Senate CJS bill will also undergo the same process in that chamber. The Senate CJS Appropriations Subcommittee — which appropriates funding for the DOJ on the Senate side — will first have to pass its legislation, which will then be taken up by the full Senate Appropriations Committee and subsequently by the Senate. The Senate CJS Subcommittee Chairman Jerry Moran (R–Kan.) has started to hold hearings on what funding should be designated to the specific agencies but has not proposed a timeline for when the subcommittee will start considering legislative proposals.

In March, the president released his proposed budget request, which Congressional Appropriations Committees will generally take into consideration or use to guide their own budget requests; however, members are not required to adopt the specific funding amounts requested by the president. There are significant differences between President Trump’s budget request and the House CJS legislation. For example, while the House bill allocates $323 million toward the DOJ’s Community Oriented Policing Services (COPS) grant program, the White House budget requested only $99 million for the program. Similarly, the White House budget request only asks for $405 million to fund the DOJ’s Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) program, compared to the House CJS’s bill allocation of $530.25 million. In terms of overall DOJ funding, the White House requested $29.2 billion for the agency, compared to the $30.2 billion included in the bill passed by the House Appropriations CJS Subcommittee.

If the president, the House and Senate cannot come to an agreement, then they will pass a continuing resolution (CR) — a short-term bill to fund the government while Congress and/or the executive branch continue negotiating.

However, even if there is no need for a CR and additional negotiations, as noted by the process outlined above, we still have a long way to go before the final DOJ funding for FY2020 is decided.

What’s in the House CJS Bill?

The bill that was passed by the House CJS Subcommittee would, among other things, fund the DOJ at $32 billion ($1.07 billion more than the funding the agency received during FY2019), including $3.4 billion toward state and local law enforcement grant programs that are important to PORAC. Key programs, among others, that would receive substantial funding through the House CJS legislation include:

  • Violence Against Women Act-related programs ($582.5 million, compared to $497 million in FY2019).
  • Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) program ($530.25 million, compared to $423.5 million in FY2019).
  • Community Oriented Policing Services (COPS) grant programs ($323 million — this includes $239 million for certain grants for the hiring/rehiring of additional career law enforcement officers — compared to $303.5 million in FY2019).
  • Grants for anti-human trafficking efforts ($100 million, compared to $85 million in FY2019), reducing the backlog of sexual assault kits ($49 million) and bulletproof vests ($25 million).

PORAC endorses the funding amounts set forth by the House appropriations legislation and looks forward to working with the House and Senate to ensure that the DOJ receives full funding for the agency’s state and local law enforcement–related grant programs.

Federal Legislation – From March Madness to April Action

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
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
Partner
Eva Rigamonti
Associate
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
Partner
Eva Rigamonti
Associate
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
Partner
Eva Rigamonti
Associate
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.