Federal Legislation – Legislators, Supreme Court Focus on Law Enforcement

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
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 – Congress Acts on PORAC’s Federal Legislative Priorities

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

Congress was busy in April, addressing a number of law enforcement issues of concern to PORAC. On March 23, Congress passed and the president signed into law an omnibus federal spending bill that substantially increases FY 2018 funding for state and local law enforcement grant programs and includes provisions boosting federal support for school security initiatives and related law enforcement activities.

President Brian Marvel submitted testimony on behalf of PORAC to the Senate Judiciary Committee in conjunction with its hearing on reauthorization of the Violence Against Women Act (VAWA). He expressed strong support for the reauthorization of VAWA, which provides grants and other resources to state and local law enforcement for combating domestic violence, sexual assault, stalking and related crimes.

Congress intensified its focus on the opioid crisis in April. At least seven House and Senate committees held hearings on legislative proposals to address the ongoing nationwide epidemic. Many proposals under consideration were still in their early stages, but the Senate Health, Education, Labor and Pensions (HELP) Committee announced plans to consider and vote on a comprehensive opioid crisis response bill in late April or early May.

On April 11, President Trump signed the PORAC-supported Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) (H.R. 1865), which subjects online platforms such as Backpage.com to harsher state and federal penalties when they enable or encourage sex trafficking.

Federal Funding for Local Law Enforcement Boosted by Congress

On March 23, President Trump signed into law the Consolidated Appropriations Act of 2018, an omnibus appropriations bill funding all components of the federal government for the remainder of FY 2018. The bill passed the Senate by a vote of 65–32 early that morning, after passing the House 256–167 the day before. The omnibus substantially boosts funding for vital state and local law enforcement assistance programs, appropriating a total of $2.4 billion for state and local law enforcement activities (a $375 million increase over FY 2017), including:

  • $275 million for the Office of Community Oriented Policing Services (COPS), a $54 million increase over FY 2017
  • $416 million for the Byrne JAG program, which provides grants supporting a broad range of state and local law enforcement activities — a $5 million increase over FY 2017
  • $492 million for grants and programs established under VAWA, which provide essential services to victims and assist state and local law enforcement in the fight against domestic violence, dating violence, sexual assault and stalking — approximately $10.5 million more than last fiscal year

PORAC has vocally and consistently urged federal lawmakers to fully fund grant programs for state and local law enforcement. In early March, President Marvel and Vice President Brent Meyer spent two days meeting with members of Congress and Trump administration officials urging support for Department of Justice (DOJ) grant programs in general, and the COPS Office and Byrne JAG program in particular.

PORAC Testifies in Support of VAWA Reauthorization

In response to a request from Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.), President Marvel submitted testimony on behalf of PORAC for a March 20 Senate Judiciary hearing titled “The Need to Reauthorize the Violence Against Women Act.” He expressed strong support for reauthorization of VAWA, and urged lawmakers to support VAWA programs that provide grants, training and technical assistance to state and local law enforcement. The testimony cited national data showing that despite progress over the years, domestic violence remains too common, with approximately 10 million Americans subjected to physical abuse by an intimate partner each year.

President Marvel shared with the committee concrete examples of innovative domestic violence response strategies that California law enforcement officers and community groups have found effective. Assisting in developing the testimony by sharing their insights and experiences were Sergeant Lisa Maneggie of the Sacramento Police Department’s Domestic Violence Unit; Elaine Whitefeather, executive director of A Community for Peace (a Citrus Heights–based victim support and advocacy organization); and David Cropp, director of Domestic Violence Response Team Services at A Community for Peace.

Congress Passes School Safety Legislation

The Consolidated Appropriations Act of 2018 (FY 2018 omnibus) incorporated provisions from the Student, Teachers and Officers Preventing (STOP) School Violence Act of 2018 (H.R. 4909), a PORAC-supported bill to increase federal support for state and local school safety.

The STOP School Violence Act was introduced on January 30 by Representative John Rutherford (R-Fla.) and passed the House by a vote of 407–10 on March 14. It is intended to help public safety officers spot warning signs of violence early and prevent future tragedies. Grant funding under the act may be used for subgrants to state and local law enforcement agencies and school violence response training for law enforcement officers. In addition, state and local governments may use grants to fund school threat assessment and intervention teams (which may include coordination between law enforcement and school personnel).

The legislation increases grant funding available for state and local school safety initiatives by reauthorizing through 2028 an expired federal matching grant program administered by the DOJ’s Bureau of Justice Assistance (BJA), increasing the amount of authorized funds from $30 million per year under prior law to $50 million per year, and increasing to 75% the portion of an applicant’s costs that may be covered by a grant.

House and Senate Committees Consider Opioid Crisis Response Legislation

In April, House and Senate committees held hearings and considered legislation intended to address opioid addiction by (1) funding training and equipment for law enforcement and other first responders, (2) providing greater access to substance abuse treatment, (3) regulating over-prescription, and (4) increasing criminal penalties associated with distribution of particularly deadly opioids such as fentanyl.

On April 11, the Senate HELP Committee, House Energy and Commerce Committee, and House Oversight and Government Reform Committee all held hearings on the opioid epidemic and legislative response proposals. Other committees that scheduled April hearings on the opioid crisis include the House Armed Services Committee, House Transportation and Infrastructure Committee, and the Senate Finance Committee.

One proposal expected to advance through the Senate HELP Committee in late April or early May is the Opioid Crisis Response Act of 2018, a wide-ranging bipartisan bill that would (1) streamline processes at the National Institutes of Health to advance research into nonaddictive painkillers, (2) enhance Customs and Border Protection screening for synthetic opioids like fentanyl entering the country, (3) upgrade FDA regulations governing the packaging and prescribing of opioids to cut down on over-prescription, (4) adjust Medicare and Medicaid coverage of mental health services to boost access to addiction treatment, and (5) provide grants to states for purposes including training for law enforcement officers on substance use disorders.

Federal Court Bars DOJ From Withholding COPS Grants From Sanctuary Cities

On April 12, the U.S. District Court for the Central District of California ruled that the DOJ cannot condition COPS grant awards on whether an applicant local law enforcement agency cooperates with federal immigration enforcement efforts. The ruling was accompanied by a permanent nationwide injunction banning DOJ grantmakers from giving preference to state and local law enforcement agencies that cooperate with federal immigration authorities. DOJ officials have indicated the federal government will appeal the district court’s ruling.

The case, City of Los Angeles v. Sessions, focuses on the constitutionality of a DOJ policy announced on September 7, 2017, that gives priority consideration for COPS Hiring Program grants to applicant jurisdictions that (1) give federal immigration enforcement access to their detention centers, (2) comply with federal requests to provide 48 hours notice before releasing certain immigrant detainees, and (3) do not restrict communications between local government officials (including law enforcement) and immigration authorities.

The district court held that the DOJ policy violates Supreme Court precedent restricting the federal government from compelling states and localities to enforce federal law. Additionally, the court concluded that the DOJ policy violated constitutional and statutory provisions restricting executive branch agencies from altering spending programs without clear congressional authorization.