Federal Legislation – PORAC Engages on PEPTA

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

In June, Representative Devin Nunes (R-22nd-San Joaquin Valley) reintroduced the Public Employee Pension Transparency Act (PEPTA), H.R. 6290. As the legislation could negatively impact the California Public Employees’ Retirement System (CalPERS), PORAC President Brian Marvel sent a letter to Nunes in August to make him aware of the organization’s concerns.

PEPTA would require state and local governments to report underfunded pension plans (known as unfunded liabilities) to the federal government, as well as establishing new reporting requirements. It would also change how unfunded liabilities are to be calculated.

The rate used to calculate these pension plans would be based on U.S. Treasury bonds, instead of the Government Accountability Standards Board (GASB) standards currently used. Changing the rate of calculation would artificially inflate a state’s unfunded liabilities to higher levels than what the plans actually face, resulting in an inaccurate representation of data. A state’s failure to comply with this inaccurate reporting would cause it to lose its ability to issue tax-free bonds. PEPTA also would prohibit the federal government from issuing bailouts in the event of a shortfall.

Nunes argues that enforcing these reporting requirements and changes in how the rates are calculated will allow taxpayers to see how much money they are paying toward state and local government employees, providing more transparency and reducing abuses in the system.

However, as President Marvel pointed out to Nunes, state and local government-sponsored pension systems are already subject to significant regulation and mandated transparency. He noted how (1) the systems are created by state statutes and local ordinances with robust open records and sunshine provisions, and (2) those who manage the plans are held to high fiduciary standards and are overseen by elected leaders and independent boards of trustees. The safeguards currently in place ensure that participants in these plans are adequately protected from fund misuse.

State and local government retirement systems are required to publish financial data on the plans they manage. This information is publicly available and searchable (at no cost to taxpayers) through databases such as the Annual Survey of Public Pensions. PEPTA’s reporting requirement merely duplicates what is already mandated at the state and local level — compelling plans to expend additional taxpayer funds to report duplicative information.

PEPTA will require plans to use accounting standards that the GASB, a nonpartisan independent body, has already determined to be inappropriate for government entities. In 2012, after a multi-year review and revision of public pension standards, the GASB rejected the assumptions and calculations proposed by the two versions of PEPTA previously introduced. The current version of the bill requires the same, rejected calculation.

In his letter to Nunes, President Marvel highlighted other areas for pension reform, including preventing governments from taking pension-funded holidays, irrespective of a state or local government’s ability to fund them.

In light of the tight congressional schedule, prospects for passage of PEPTA this year are questionable. However, PORAC will continue to oppose the legislation as well as other efforts with the potential to negatively impact CalPERS, and will keep educating members of Congress on issues related to pensions for public safety officers.

Federal Legislation – What SCOTUS Nominee Brett Kavanaugh Means for Law Enforcement

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

In late June, Justice Anthony Kennedy announced his retirement from the Supreme Court, effective July 31. Justice Kennedy was known as the swing vote in a number of decisions. Though often considered a conservative justice, he sided with the Court’s liberals on key social issues, such as abortion, gay rights and affirmative action. With respect to law enforcement, however, his legacy is mixed.

The Reagan-appointed justice repeatedly declined to expand the Fourth Amendment to accommodate a broader view of privacy rights in light of developing surveillance technology. His recent dissent in Carpenter v. United States, 585 U.S. ____ (2018), which held that police are required to obtain a warrant to access cell-site location records, demonstrates his belief that the cellphone records at issue are no different from other types of records the government already has a legal right to obtain without a warrant.

In other cases, though, Justice Kennedy sided against law enforcement. For example, in Bailey v. United States, 568 U.S. 186 (2013), he wrote for the majority in holding that it was an unreasonable seizure under the Fourth Amendment for police to detain and search an individual away from where a search warrant had been granted. Justice Kennedy also restricted the use of the death penalty and joined decisions allowing defendants eligible for the death penalty to present and have fully considered all relevant mitigating evidence.

With Justice Kennedy’s retirement, all eyes now turn to Judge Brett Kavanaugh, President Trump’s nominee to replace him. Originally nominated by President George W. Bush in 2003 to serve on the United States Court of Appeals for the District of Columbia Circuit, Judge Kavanaugh’s confirmation stalled for nearly three years as Democratic senators accused him of being too partisan. At the time of his D.C. Circuit Court nomination, Kavanaugh had been serving in President Bush’s White House as staff secretary, a usually unassuming role dedicated to controlling the flow of documents to and from the president. Emails recently released, though, suggest that Kavanaugh may have had significant influence on a number of controversial matters, including President Bush’s decision to sign into a law a partial-birth abortion ban and his backing of a constitutional amendment banning gay marriage.

During his decade-plus-long tenure on the D.C. Circuit Court of Appeals, Judge Kavanaugh consistently sided with law enforcement. With respect to police searches, for example, he dissented in 2010 from a decision not to rehear a case en banc — i.e., before the entire D.C. Circuit — where a prior panel held that police violated an alleged drug dealer’s rights when they placed a GPS device on the individual’s car without a warrant. Judge Kavanaugh reasoned that placing the device on the car may have violated the individual’s Fourth Amendment right to be free from unreasonable searches and seizures, but the use of the device to track the person’s movements was constitutional. The Supreme Court disagreed with him, ruling unanimously in United States v. Jones, 565 U.S. 400 (2012), that installing the GPS tracking device and using it to monitor the vehicle’s movements violated the Fourth Amendment.

Judge Kavanaugh also is a proponent of stop-and-frisk, writing a majority opinion in U.S. v. Bullock, 570 F. 3d 342 (D.C. Cir. 2007), that upheld the frisking of a motorist who made an illegal U-turn, was subsequently stopped by police and who could not produce a vehicle registration. He also vigorously dissented in United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008), a stop-and-frisk case where an individual was brought before an eyewitness to a robbery to see whether the eyewitness recognized him. After an initial “pat down” of the suspect came up empty, an officer unzipped the suspect’s outer jacket to check whether his clothing matched eyewitness descriptions of what the robber was wearing. The unzipping of the jacket revealed a gun. Judge Kavanaugh argued in his dissent that the Fourth Amendment permits the police to move a suspect’s clothing to help in eyewitness identification.

With respect to digital privacy, Judge Kavanaugh’s arguably most famous decision was in Klayman v. Obama, 805 F. 3d 1148 (D.C. Cir. 2015), a case about the National Security Agency’s (NSA) metadata collection program. The NSA’s Section 215 call-records program collected without disclosure the numbers dialed (but not the contents) of millions of Americans’ phone calls. In a short concurring opinion, Judge Kavanaugh viewed the Section 215 program “entirely consistent with the Fourth Amendment.” He reasoned the collection of data was not a search and that — even if it was — it was reasonable under the “special needs” exception to the Fourth Amendment’s warrant requirement. Judge Kavanaugh, who was working in the White House on September 11, 2001, saw the program as a national security tool to combat terrorism.

So, what does Brett Kavanaugh mean for law enforcement? In Fourth Amendment cases, “Justice” Kavanaugh would likely side with the government. While his time on the D.C. Circuit Court of Appeals was spent more on reviewing federal government administrative actions than on deciding criminal justice matters, his limited criminal jurisprudence and conservative views on other matters suggest that he will be hesitant to expand Fourth Amendment protections. Circuit court judges are constrained by precedent in their rulings, but Supreme Court justices have more leeway. Judge Kavanaugh will likely carry his staunch beliefs with him to the High Court.

Judge Kavanaugh’s September confirmation hearings are expected to last three to four days, whereafter he needs only a simple majority in the 100-seat Senate to be confirmed. Republicans currently hold a 51–49 advantage over Democrats and Independents, and it is possible some Democrats could vote for Kavanaugh. These include Democratic senators from states that voted for Trump in 2016 — such as Senators Joe Donnelly (D–Indiana), Heidi Heitkamp (D–North Dakota) and Joe Manchin (D–West Virginia). They had all voted for President Trump’s first Supreme Court pick, Neil Gorsuch.  

Federal Legislation – Supreme Court Restricts Cellphone Searches and Union Dues

Darryl Nirenberg
Partner
Josh Oppenheimer
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

This month’s column includes updates on the status of federal funding of justice grant programs and opioid legislation, and discusses the U.S. Supreme Court decisions holding that (1) police must obtain a warrant before accessing cellphone records and (2) teachers, police officers and other public employees cannot be forced to pay dues or fees to support their unions.

Also, this month’s issue features a guest column (see page 34) from Representative Raul Ruiz (D-36) discussing H.R. 5060, bipartisan legislation he has introduced to update the Public Safety Officers’ Benefit (PSOB) Program to provide additional support to the families of fallen or disabled officers. PORAC carried the issue during the May fly-in and has been an active supporter of the bill.

Congress Continues Work on Funding of Justice Department Grant Programs

On June 14, the Senate Appropriations Committee passed the Senate Commerce-Justice-Science Appropriations bill, which funds Department of Justice programs. The bill includes $2.87 billion for state and local law enforcement and crime prevention grant programs, including $445 million for the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program (compared to $405 million in fiscal year 2018), and $40 million for various Community Oriented Policing Services (COPS) grant programs (compared to $19 million in FY18).

On May 17, the House of Representatives passed their Commerce-Justice-Science appropriations bill, which includes $442 million for Byrne-JAG grants, a $27 million increase from FY2018 funding.

The two chambers will now each take up their bill for a vote. Timing is uncertain, although Congress has signaled they would like to vote on appropriations measures before the end of the summer.

Supreme Court Restricts Cellphone Searches and Unions’ Abilities to Collect Dues

In Carpenter v. United States, 585 U.S. ____ (2018), the Supreme Court considered whether the government conducts a search under the Fourth Amendment when it accesses cellphone records that provide detailed data on a user’s movements. In this case, by simply claiming that the information was required as part of an investigation, prosecutors were granted court orders to obtain petitioners’ cellphone records. Wireless carriers produced cell-site location information for the accused person’s phone, and the government was able to obtain location points cataloging his movements.

The individual argued the government’s seizure of the records without a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and the Sixth Circuit Court of Appeals affirmed, holding that the individual lacked a reasonable expectation of privacy because he had shared that information with his wireless carriers. In reversing the Sixth Circuit, the Supreme Court held that the acquisition of the cell-site records was a Fourth Amendment search requiring a warrant.

The Supreme Court’s ruling, however, is fairly narrow and does not otherwise change the third-party doctrine related to other business records that might reveal location information. It also does not address previous rulings related to real-time cell-site location information or “tower dumps,” where police ask for a “dump” of the phone numbers of all devices that connected to a specific cell tower or site during a given period of time in an attempt to identify a suspect.

In Janus v. AFSCME, 585 U.S. ____ (2018), the court considered whether public-sector agency-fee arrangements are unconstitutional. In overruling its 41-year-old precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the 5–4 decision held that Illinois’ extraction of agency fees from non-union public sector employees violates the First Amendment.

This will affect police unions that have contracts requiring all employees to pay a so-called “fair-share fee” to cover the costs of collective bargaining. The unions will now need to lobby public employees to pay full union dues, even though those employees will get the same benefits from the union if they pay nothing at all. Of note, for PORAC members a number of key benefits — including Legal Defense Fund (LDF) coverage — are only available to individuals who maintain their membership in a PORAC-affiliated member association.

PORAC led a coalition of 14 other public safety unions and associations (representing nearly half a million public safety employees nationwide) in the filing of an amicus — or “friend of the court” — brief. PORAC argued that an adverse ruling would send unions into a “death spiral.” Unions would be forced to raise their rates because they would still be responsible for everyone in the bargaining unit despite having less revenue, which, in turn, would make a members’ decision on whether to pay dues even more burdensome.

After the decision was announced, PORAC said in a press release: “This is the dawn of the war against both labor unions and the law enforcement profession in this country, and no association should choose to stand alone. A united voice is more important now than ever before.”

House Sends Opioid Legislation to the Senate

On June 22, the House passed, by a vote of 396–14, H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act.

Included in the H.R. 6 package was a series of House Judiciary Committee-passed bills, including the Stop the Importation and Trafficking of Synthetic Analogues Act (H.R. 2851). The bill updates the Controlled Substances Act (CSA) to provide swifter action to stop the unlawful importation and distribution of synthetic drugs, by giving the United States attorney general the power to quickly and temporarily schedule a new dangerous drug (i.e., a synthetic drug) in a matter of months when it is virtually identical to a currently scheduled drug.

The opioid package of bills has the support of the White House, though it is unlikely the Senate will accept all of its provisions. The upper chamber plans to take up its own opioid legislation and then later work out a compromise on the details. Timing is uncertain, although the Senate could take up the legislation before the end of the summer.

Federal Legislation – PORAC Storms the Hill

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Josh Oppenheimer
Associate
Steptoe & Johnson LLP

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

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

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

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

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

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

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

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

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

Prison Reform Bill Sees Some Light in the House

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

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

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

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

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

Senate Focuses Efforts on Judicial Nominations

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

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

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

Federal Grants Open — Apply Now!

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

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

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

Federal Legislation – Congress Acts on PORAC’s Federal Legislative Priorities

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
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.

Federal Legislation – Urges Protection of Law Enforcement Funding

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

On March 6 and 7, PORAC President Brian Marvel and Vice President Brent Meyer met with key federal officials in Washington, D.C., to advocate for the preservation and expansion of law enforcement funding initiatives. They emphasized the critical role played by Department of Justice (DOJ) grant programs and other federal assistance in ensuring state and local law enforcement agencies in California and across the nation have the resources needed to protect their communities.

Over the course of two days, President Marvel and Vice President Meyer met with key members of the California delegation, including Representatives Lou Correa (D-46th), Steve Knight (R-25th), Zoe Lofgren (D-19th), David Valadao (R-21st), Juan Vargas (D-51st), Eric Swalwell (D-15th), Jimmy Panetta (D-20th) and Senator Dianne Feinstein (D). PORAC also met with staff from the offices of Representative Pete Aguilar (D-31st) and Senator Kamala Harris (D) as well as with top officials in the White House, the DOJ Office of Community Oriented Policing Services (COPS) and the D.C. office of Governor Jerry Brown.

President Brian Marvel and Vice President Brent Meyer with Representative Steve Knight

The fly-in was well timed, as Congress spent much of March engaged in contentious debates over appropriations legislation to fund federal government programs — including DOJ grant programs — for the remainder of the fiscal year before the stopgap funding bill deadline on March 23.

At press time, congressional leadership felt confident the funding bill would be passed before the March 23 deadline and expected that certain riders would be added. Possibilities include provisions to stabilize the individual health insurance market, technical corrections to the tax reform bill and additional disaster assistance to impacted states.

In the wake of the February school shooting in Broward County, Florida, President Trump and Congress turned their attention to issues such as Second Amendment rights, due process for gun owners, the mental health-care system and school safety. A Trump administration-backed bill to enhance enforcement of the existing National Instant Criminal Background Check System (NICS) has attracted over 60 Senate cosponsors, suggesting it has enough support to overcome a filibuster and pass the Senate. At the time of this writing, however, the bill — titled the Fix NICS Act of 2017 (S. 2135) — had not yet been scheduled for a vote on the Senate floor.

Trump Administration Releases Fiscal Year 2019 Budget Request for Department of Justice Programs

In mid-February, the Trump administration released its fiscal year 2019 congressional budget request for the DOJ. The document outlines proposed funding levels for DOJ divisions including the Office of Justice Programs (OJP) and the Bureau of Justice Assistance (BJA), which administer federal grants to state and local law enforcement agencies and other law enforcement assistance programs.

Citing a need to intensify the Department’s focus on violent crime reduction, immigration enforcement and the opioid crisis, the president’s budget request proposes a number of significant funding shifts, including:

  • A 49% cut in funding for the Office of Community Oriented Policing Services (COPS) hiring program.
  • Elimination of the $210 million State Criminal Alien Assistance Program (SCAAP) program, which reimburses state and local governments for expenses incurred while detaining illegal immigrants charged with crimes.
  • Sustained or increased funding levels for DOJ programs focused on immigration enforcement and combating the opioid crisis. For example, the request calls for a $41 million increase in Drug Enforcement Agency (DEA) funding specifically for opioid-related initiatives (from $25 million enacted in fiscal year 2017 to $66 million in fiscal year 2019).
  • Sustained funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program at $403 million, but taking from the total amount of grants available, funding for certain programs previously funded separately, including $22.5 million for the Bulletproof Vest Partnership Grant Program, $22.5 million to support state and local law enforcement agency acquisition of body-worn cameras, and $15 million for the Preventing Violence Against Law Enforcement Officers and Ensuring Officer Resilience and Survivability (VALOR) initiative.

It is important to keep in mind that the president’s budget is fundamentally only an advocacy document setting forth the administration’s proposed policies. Congress will establish the funding levels for each agency through the budget resolution and then determine how much money is to be spent on specific programs — including DOJ grant programs — through the appropriations process. In past fiscal years, the amounts eventually allocated to DOJ programs by Congress have generally exceeded the amounts proposed in administration budget requests. Accordingly, PORAC has advocated robust federal grant programs for state and local law enforcement.

House Passes Anti-Online Sex Trafficking Legislation

On February 27, the House of Representatives passed, in a 388 to 25 vote, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) of 2017 (H.R. 1865), a bill sponsored by Representative Ann Wagner (R-Missouri) to create new legal avenues for online sex trafficking victims and prosecutors to hold accountable websites that knowingly aid sex trafficking. PORAC actively supported the legislation.

FOSTA would subject online platforms such as Backpage.com to harsher state and federal penalties when they enable or encourage sex trafficking and prostitution. It would make online classified ad sites more vulnerable to criminal charges and civil suits by creating a new federal crime carrying a sentence of up to 10 years in prison, and by lowering current legal barriers protecting sites from liability for content posted by third-party users.

Included in FOSTA is an amendment offered by Representative Mimi Walters (R-45th), to make it easier for sex trafficking victims to sue the websites that aided in their trafficking, to allow state attorneys general to bring civil suits against online sex trafficking platforms on behalf of trafficking victims and to facilitate federal prosecution of sex trafficking platforms.

Federal Government Sues California Over “Sanctuary” Policies

On March 7, Attorney General Jeff Sessions announced that the DOJ has filed a lawsuit against the State of California challenging certain so-called “sanctuary” laws that restrict the extent to which state and local officials in California assist federal immigration enforcement efforts. The DOJ suit seeks to enjoin and invalidate three 2017 California laws, arguing that they obstruct the federal government’s efforts to enforce immigration laws and therefore violate the Constitution’s Supremacy Clause (which establishes that federal laws generally override conflicting state laws).

The lawsuit specifically targets the following:

  • The California Values Act (SB 54), which limits state and local law enforcement officials’ interactions with federal immigration officials.
  • The Immigrant Worker Protection Act (AB 450), which restricts employers in the state from sharing certain confidential information about immigrant workers with federal authorities without a subpoena and requires federal officials to obtain a warrant to access non-public work areas.
  • A provision enacted in 2017 as part of a public safety omnibus spending bill (AB 103) that empowers the California attorney general to conduct broad inspections of federal immigration detention facilities located in the state.

The role of state and local officials in federal immigration enforcement is an unsettled legal question. The federal government’s argument cites Arizona v. United States, a 2012 Supreme Court ruling that invalidated Arizona statutes granting state officials power to enforce federal immigration law. One Arizona law, for example, empowered state and local law enforcement to make warrantless arrests of suspected illegal immigrants. The Court concluded that by creating and seeking to enforce its own more stringent immigration laws, Arizona had intruded on an area of lawmaking reserved to the federal government and therefore violated the Supremacy Clause of the Constitution. The federal government’s complaint compares California’s “sanctuary” laws to the Arizona laws struck down by the Supreme Court in 2012.

The California Attorney General’s counterargument cites Printz v. United States, a 1997 Supreme Court decision holding that the federal government may not coerce Arizona and Montana law enforcement officials to conduct background checks on gun purchasers in the state. The Court’s conclusion was based on the Tenth Amendment to the Constitution, which protects certain state rights — such as a state’s general police power over its residents — from federal intrusion.

The suit has been filed in the U.S. District Court for the Eastern District of California. The DOJ has requested an initial hearing on April 5, 2018.

Federal Legislation – Congress Passes Budget Legislation After Brief Government Shutdown

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

On February 9, President Trump signed into law a sweeping package of federal spending legislation consisting of (1) a six-week stopgap bill to fund federal government operations at prior levels until March 23, 2018, and (2) a wide-ranging, two-year bipartisan budget agreement that:

  • Raises government spending limits by $296 billion for FY 2018 (the current fiscal year) and FY 2019 (which begins October 1, 2018)
  • Suspends the debt limit through March 1, 2019 (allowing the federal government to borrow what it needs until then to finance government operations)
  • Specifically directs $6 billion to programs aimed at addressing the opioid epidemic and mental health issues
  • Provides $89.3 billion in disaster aid for areas affected by last year’s wildfires in California; hurricanes in Texas, Florida, Puerto Rico and the U.S. Virgin Islands; and other natural disasters
  • Extends a number of temporary tax breaks for certain industries

The legislation, titled the Bipartisan Budget Act of 2018 (H.R. 1892), passed the Senate by a vote of 71–28, and then the House 240–186, early February 9. It ended a brief government shutdown that began at midnight Thursday, February 8, when temporary funding provided under a previous spending resolution ran out. Overall the budget agreement increased discretionary spending caps by $165 billion for defense and $131 billion for non-defense.

Support for the bill was bipartisan — as was the opposition. A group of conservative Republicans voted against the bill because of its high price tag. (The Congressional Budget Office [CBO] estimates the bill will increase federal deficits by approximately $320 billion over 10 years.) Many Democrats, led by House Minority Leader Nancy Pelosi (D-Calif.), voted against the legislation because it failed to include provisions to shield from deportation so-called DACA immigrants brought into the United States illegally as children. While Speaker of the House Paul Ryan (R-Wisc.) pledged to address the immigration issue before an Obama administration policy to defer enforcement action against such immigrants expires in March, Ryan also said he would not bring up a bill for a vote in the House unless it had the support of President Trump and a majority of House Republicans.

The budget agreement clears the way for the House and Senate Appropriations Committees to begin divvying up funds to specific federal programs for FY 2018 in appropriations legislation. Because the budget agreement specifies that the $6 billion it directs to combat the opioid crisis ($3 billion in FY 2018, $3 billion in FY 2019) is for both law enforcement and public health programming, a significant proportion of the funding is likely to be allocated in appropriations bills developed by members of the House and Senate Commerce–Justice-Science (CJS) appropriations subcommittees. The CJS Appropriations Subcommittee in the House is chaired by Representative John Culberson (R-Texas). The Senate CJS subcommittee is chaired by Senator Richard Shelby (R-Ala.). Senator Dianne Feinstein (D-Calif.) is the second-highest-ranking Democrat on the Senate subcommittee.

Congress Passes PORAC-Supported “Kari’s Law” Requiring Multi-Line Telephones to Give Users Direct Access to 9-1-1

On February 9, the House passed H.R. 582, the “Kari’s Law Act of 2017,” by voice vote. Kari’s Law will require multi-line telephone systems (often found in hotels and offices) to have a configuration that permits users to directly call 9-1-1 without having to dial any additional digit, code, prefix or postfix.

PORAC has vocally supported Kari’s Law since it was introduced in prior Congresses and has advocated for its passage in meetings with congressional offices on Capitol Hill during its 2016 and 2017 fly-ins. The legislation was prompted by the murder of Kari Hunt, which took place in a hotel that required users of the hotel’s telephone system to dial an additional number to gain access to an outside line. Despite repeated attempts by Kari’s young daughter to call the police from the hotel room where her mother was being murdered, the child was unable to reach police because she did not know she had to dial “9” to get an outside line.

When this issue went to print, Kari’s Law was at the White House awaiting the president’s signature — which is expected. It will apply to all multi-line telephone systems that are manufactured, imported, installed, offered for first sale or lease, or first sold or leased beginning two years after the date of enactment.

Supreme Court Rules for Law Enforcement in Case Testing Probable Cause and Qualified Immunity Standards

On January 22, the U.S. Supreme Court held in District of Columbia v. Wesby that two D.C. police officers had probable cause to arrest a group of people partying inside a vacant house for trespassing. Considering the “totality of the circumstances,” it was reasonable for the officers to infer that the partygoers knew or should have known they were not authorized to be in the house, the court said. In addition, the court addressed the related question of whether the officers were entitled to immunity from a lawsuit by one of the arrestees (Wesby). Per the opinion, even if the officers did not have probable cause, they were entitled to qualified immunity because, for a lawsuit to proceed against officers in such circumstances, it must be “clearly established” that their conduct was wrong.

On the probable cause question, Justice Clarence Thomas wrote in the opinion for the court that, considered as a whole, the circumstances surrounding the arrests (specifically “the condition of the house and the conduct of the partygoers”) supported a reasonable belief by the officers that the partiers knew they were trespassing. Justice Thomas emphasized that the house was “near-barren” and reasoned that “most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside and to leave their floors filthy.” He added that the partiers’ vague and unconvincing answers to the officers’ questions provided further support for a finding of probable cause. For example, Thomas pointed out that “some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.”

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Kagan and Gorsuch joined Justice Thomas’ opinion, with Justice Sotomayor concurring in the judgment and Justice Ginsburg concurring in the judgment in part. While Justice Ginsburg agreed with the ultimate outcome of the case, she voiced concern over whether the court’s holding weighed “too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” She noted that one of the officers proceeded with the arrests based on his mistaken belief that the law allowed him to arrest the partiers just because they did not have the homeowner’s consent (even if they believed they were permitted to be in the home).

Department of Justice Threatens 23 “Sanctuary Jurisdictions” With Subpoenas, Loss of Federal Funding

On January 24, the Office of Justice Programs (OJP) at the Department of Justice (DOJ) sent letters threatening 23 state and local jurisdictions with subpoenas if they fail to produce “all documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees … regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.”

In the letters, the DOJ explains that it is requesting the documents because it “remains concerned” that the laws, policies, or practices of the jurisdictions may violate a federal law that prohibits state and local government entities from enacting laws or policies that restrict communication with the Department of Homeland Security (DHS) about “information regarding the immigration or citizenship status” of any individual. The letters state that compliance with this law is a precondition for eligibility to receive Byrne Justice Assistance Grant (Byrne JAG) funds. They caution that if a jurisdiction is determined to be out of compliance, DOJ may try to take back FY 2016 Byrne JAG funds or restrict access to FY 2017 funds. Among the jurisdictions that received a letter were the State of California and the following jurisdictions within California: Berkeley, Fremont, the City of Los Angeles, Monterey County, Sacramento County, the City and County of San Francisco, Sonoma County and Watsonville.

Previously, federal courts blocked a Trump administration executive order (EO) that would have denied all federal funding to “sanctuary” localities after the localities successfully argued that the EO was an unconstitutional attempt to coerce state and local governments to administer a federal regulatory program. The wide range of programs and the large amounts of funding that the EO threatened was a factor that federal judges took into account in finding the EO unconstitutionally coercive. The threats in the January 24 letters were comparatively narrow: While Byrne JAG funding is very significant, its loss would not be as devastating to localities as a loss of all federal funding. Thus, the withdrawal of funding threatened in the January 24 letters may survive a legal challenge alleging unconstitutional coercion of localities by the federal government.

Federal Legislation – Congress Struggles to Reach a Government Funding Deal

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

Congress started off 2018 with yet another showdown over government funding. Lawmakers returned from their holiday recess with just a few weeks to negotiate a compromise spending bill by January 19 (the date when appropriations would run out). To avoid a shutdown, Republican leadership in Congress proposed a short-term bill to fund the government at current levels until February 16. To garner support from rank-and-file GOP members and make it difficult for Democrats to vote against the funding package, Republican leadership attached legislation that would delay certain Affordable Care Act-related taxes and reauthorize the Children’s Health Insurance Program (CHIP) for six years.

Complicating the funding fight is an increasingly contentious debate over immigration policy, and the fate of Deferred Action for Childhood Arrivals (DACA) policy beneficiaries in particular. The DACA policy — established by the Obama administration on June 15, 2012, and rescinded by the Trump administration on June 16, 2017 — has allowed certain individuals who were brought to the United States illegally as children to request a renewable two-year period of (1) prosecutorial discretion postponing deportation action against them, and (2) temporary work authorization.

Democrats have threatened to oppose any spending deal that does not include a legislative fix allowing DACA beneficiaries to pursue permanent lawful immigration status. Many Democrats’ preferred solution is to include a bipartisan bill called the Dream Act, which would provide a path to citizenship for DACA beneficiaries, in spending legislation.

The White House and conservative congressional Republicans, while generally in favor of legalizing DACA beneficiaries at least temporarily, have demanded that any legislative DACA fix include funding for increased border security (including a border wall), new limitations on the ability of immigrants to bring members of their extended family to the United States (existing immigration laws allow legal immigrants to sponsor certain family members for faster immigration processing) and an end to the Diversity Visa lottery program, under which the State Department uses a lottery system to grant 50,000 visas per year to immigrants from countries that have historically low rates of immigration to the United States.

At the time this issue went to print, it was still unclear whether lawmakers and the White House would be able to strike a bipartisan deal to keep the government open.

Supreme Court Hears Fourth Amendment Case Concerning Warrantless Searches of Vehicles Parked on Private Property

On January 9, the U.S. Supreme Court heard oral arguments in Collins v. Virginia, a case concerning the scope of the “automobile exception” to the general search warrant requirement imposed by the Fourth Amendment. The automobile exception permits police to perform a warrantless search of a vehicle if (1) the vehicle is readily mobile and (2) the police have probable cause to believe the vehicle contains evidence of a crime.

The central question in Collins is whether a motorcycle parked in the defendant’s driveway is covered by the less stringent warrantless search rules applicable to vehicles (subject to the “automobile exception”), or the more stringent warrantless search rules applicable to the home and the area surrounding the home (called the “curtilage”). The case arose when two law enforcement officers walked up the defendant’s driveway to inspect a motorcycle that they believed had been used to evade them by traveling at dangerous speeds (over 140 miles per hour at times). The officers removed the motorcycle’s cover and inspected its license plate and VIN, from which they learned that the motorcycle was listed as stolen.

The defendant, Ryan Collins, argued at his trial that the license place and VIN should be excluded from evidence because the officers’ inspection of the motorcycle was an unconstitutional warrantless search. He argued that the “automobile exception” did not apply to the search of the motorcycle because it was parked in the curtilage surrounding his home. To support his position, he mentioned Supreme Court precedent establishing that searches of one’s home or the curtilage surrounding one’s home are subject to stricter Fourth Amendment limits than searches of one’s vehicle, because of the stronger expectation of privacy in one’s home than in one’s vehicle.

During oral argument, the justices expressed skepticism of both the rule proposed by Collins (searches of vehicles parked on private property near the home should be subject to the same strict Fourth Amendment protections as searches of the curtilage surrounding the home) and the rule proposed by the State of Virginia (searches of vehicles parked on private property near the home should be subject to the same relatively lax Fourth Amendment protections as searches of vehicles on the road, and thus may be conducted without a warrant under the “automobile exception”).

Justice Alito, for example, said he saw “the invasion of privacy that’s involved in walking a few feet up the driveway” as relatively insignificant, and not much different than the invasion of privacy that would have been involved “if [the] motorcycle had been parked on the street.” Justices Gorsuch and Sotomayor, on the other hand, expressed concern that the State of Virginia’s proposed rule would amount to a large expansion of the automobile exception, and could create an overly broad exception to warrant requirements for searches very close to — or even inside of — the home, which would be inconsistent with a core purpose of the Fourth Amendment. The court is expected to announce its decision in Collins v. Virginia by June.

Law Enforcement Mental Health and Wellness Legislation Signed Into Law

On January 10, President Trump signed into law the Law Enforcement Mental Health and Wellness Act of 2017. The legislation boosts federal support for law enforcement mental health and wellness programs by (1) adjusting certain Department of Justice (DOJ) funding parameters and (2) directing DOJ to report on and develop effective mental health services and practices for adoption by law enforcement agencies. The legislation, which PORAC supported, had broad bipartisan support and passed the House by voice vote on November 28 before passing the Senate on December 21.

Specifically, the legislation frees up additional funding for mental health programs by expanding the scope of allowable uses for DOJ Community Oriented Policing Services (COPS) Office grants to include the creation of peer mentoring mental health and wellness pilot programs at state, local and tribal law enforcement agencies. The new law also directs DOJ to produce reports on mental health practices and services aimed at law enforcement officers. For example, DOJ is required to report on Department of Defense and Department of Veterans Affairs mental health practices and services that law enforcement agencies could adopt.

Under the legislation, DOJ is also required to coordinate with the Department of Health and Human Services (HHS) to produce educational resources for mental health care providers detailing (1) treatments for mental health issues common to law enforcement personnel, and (2) law enforcement agency culture. Finally, DOJ must study and recommend improvements to existing practices and services including crisis hotlines, resources specifically geared to federal officer mental health and wellness, and privacy protections for officers using mental health and wellness services.

FCC Votes to Add “Blue Alerts” to the Country’s Emergency Alerting System

On December 14, the Federal Communications Commission (FCC) issued an order adding a new alert option — a “Blue Alert” — to nationwide emergency alerting systems. The Blue Alerts will be similar to AMBER Alerts (which alert the public to child abductions) and will use the same notification system, except they are intended for use by state and local authorities to alert the public to threats to law enforcement as quickly as possible, and to help apprehend dangerous suspects.

Specifically, according to the FCC, Blue Alerts will notify the public when there is “actionable information related to a law enforcement officer who is missing, seriously injured, or killed in the line of duty, or when there is an imminent credible threat to an officer.” In addition, Blue Alerts will warn members of the public of violent suspects in their communities and provide instructions on what people should do if they encounter such a suspect.

All five FCC commissioners approved of the order, although one, Jessica Rosenworcel, approved in part and dissented in part. Specifically, Commissioner Rosenworcel agreed with the overall decision to create the Blue Alert program, but disagreed with the FCC’s use of an economic metric known as the “value of preventing a fatality” (VPF) in its cost–benefit analysis of the program. The VPF metric is an estimate of the dollar value of the average police officer’s life, which was compared to the average costs borne by the telecom industry to implement the Blue Alert program. Commissioner Rosenworcel wrote in her partial dissent that the “cold calculus” of weighing the cost of telecom industry compliance against the statistically determined dollar value of a police officer’s life “is neither needed nor smart,” and that “there is a way to do cost–benefit analysis thoughtfully and with dignity for those who wear the shield.” Her position is in line with her longstanding commitment to law enforcement. As an FCC commissioner, Rosenworcel has been a vocal advocate for reforming the 9-1-1 system. In fact, PORAC met with her office to discuss 9-1-1 reform in the spring of 2016.

Federal Legislation – Congress’ Year-End Push

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

Tax Reform and Averting a Government Shutdown

With time running out to notch major legislative victories ahead of the looming 2018 midterm elections, Republicans in Congress spent December working feverishly to pass tax reform legislation. On December 1, the Senate passed its version of a bill to reshape the U.S. tax system by a vote of 51 to 49. On December 6, the Senate decided, by a vote of 51 to 47, to conference the Senate tax reform bill with the House version. The House similarly decided to conference its tax reform bill with the Senate by a vote of 222 to 192 on December 4.

The conference is an opportunity for a temporary committee of House and Senate lawmakers to work out differences in the bills and negotiate a final bill that can be passed by both chambers. The conference committee includes lawmakers from the tax-writing and natural resources committees in both chambers, as the bill to be conferenced contains both tax reform and energy-related provisions, such as opening up the Arctic National Wildlife Refuge in Alaska to oil exploration.

Some of the key issues to be addressed by the conference committee include determining if and how to sunset individual tax cuts, how to consolidate the individual tax brackets, whether to maintain a repeal of the Affordable Care Act’s individual mandate, the effective date of the corporate tax rate cut, how to treat the state and local tax deduction, whether to eliminate or change the alternative minimum tax for corporations, and how to lower tax rates for pass-through entities such as sole proprietorships, partnerships and S-corporations. At the time this issue went to print, many expected a tax reform bill to reach the president’s desk by Christmas.

Also in early December, Congress narrowly averted a government shutdown by passing a two-week continuing resolution (CR), a bill maintaining existing federal government funding levels. The CR will fund the government until December 22, when Congress is expected to pass another short-term CR into January, giving members time to address other impending policy battles on the legislative agenda. Both CRs are intended to buy time for lawmakers to craft an omnibus appropriations bill (a package of spending bills funding all parts of the government).

Lawmakers must decide which separate legislative measures, if any, to include with the next CR. Additional funding for defense spending and disaster aid, an increase in the debt ceiling, a flood insurance extension, reauthorization of NSA spying powers, and children’s health insurance have all been discussed as possible add-ons. Many Democrats insist that a year-end spending bill must include a legislative solution for beneficiaries of the Deferred Action for Childhood Arrivals program.

Federal Government Continues to Focus on Opioid Crisis

On November 29, Attorney General Jeff Sessions announced that the Department of Justice’s Community Oriented Policing Services (COPS) Office is issuing approximately $12 million in grants designed to support law enforcement efforts to crack down on illegal production and distribution of heroin, methamphetamine and pharmaceutical opioids. Specifically, the COPS Office is awarding $7.12 million directly to state and local law enforcement agencies in FY 2017 through the Anti-Heroin Task Force Program (AHTF), which targets funding based on states’ per-capita primary treatment admissions for heroin and other opioids. The COPS Office will also award $5.03 million in FY 2017 to state law enforcement agencies with demonstrated track records of seizing methamphetamine, precursor chemicals, drug labs and drug lab dumps.

Attorney General Sessions also directed all U.S. attorneys to designate opioid coordinators to streamline opioid prosecutions in every district. Each opioid coordinator will assemble and work with a task force of federal, state, local and tribal law enforcement to identify opioid cases for federal prosecution and help districts cooperate with one another in the fight against illicit methamphetamines and opioids.

On December 5, the Senate Appropriations Committee’s Subcommittee on Labor, Health and Human Services, and Education (Chairman Roy Blunt, R-Mo.), held a hearing titled “Addressing the Opioid Crisis in America: Prevention, Treatment and Recovery,” which focused on opioid crisis-related federal funding questions. Subcommittee members heard testimony from Trump administration public health officials and a member of the President’s Commission on Combating Drug Addiction and the Opioid Crisis.

Despite declaring the opioid crisis a public health emergency in October, the Trump administration has not sent lawmakers a formal supplemental funding request. Instead, White House officials have said they are leaving it up to Congress to determine whether additional funds are needed to boost opioid-related law enforcement and public health initiatives. Likewise, Trump administration witnesses at the December 5 hearing refused to give specific answers when panel members asked how much funding their agencies would need.

Subcommittee Democrats argued that the lack of guidance from the administration on funding is evidence that President Trump is not taking the opioid crisis seriously. As of December 8, Congressional Republicans have been hesitant to commit extra funding in a continuing resolution, saying they would prefer to include opioid crisis funds in a larger year-end budget agreement. Senate appropriations bills for FY 2018 currently include approximately $1.5 billion in total federal funding addressing drug abuse, including about $500 million in state grants for opioid epidemic response. Whether or not funds are ultimately provided for state grants will depend on the outcome of ongoing negotiations over a long-term spending bill.

On December 7, PORAC filed comments in response to a request for information issued by the FDA’s newly formed Opioid Policy Steering Committee (OPSC), which is tasked with evaluating ways the FDA can use its regulatory authority to address the opioid epidemic. PORAC’s comments urged FDA to (1) limit unnecessary access to opioids through tighter regulation of prescribing practices and (2) issue guidance aimed at public safety personnel that explains the risks of exposure to fentanyl and outlines best practices first responders can use to minimize those risks.

House Passes Concealed Carry Reciprocity Bill

On December 6, the House voted 231 to 198 to pass H.R. 38, the Concealed Carry Reciprocity Act. The bill would permit any individual authorized to carry a concealed handgun in his or her home state to also do so in any other state that allows concealed carry. The legislation would also require certain federal and state agencies to certify that all information regarding individuals ineligible to purchase firearms is uploaded to the National Instant Criminal Background Check System.

The bill, a top priority of the National Rifle Association, has been denounced by gun-control groups and some law enforcement associations, such as the Major Cities Chiefs Association, the Police Foundation and the International Association of Chiefs of Police. These groups argue that H.R. 38 would force states to accept weaker concealed carry laws of other states (which may have less stringent training requirements, or no permitting requirement at all).

A Senate counterpart to the House-passed bill, the Constitutional Concealed Carry Reciprocity Act of 2017 (S. 446), has been referred to the Senate Judiciary Committee.

Supreme Court Hears Arguments in Cellphone Data Search-and-Seizure Case

On November 27, the U.S. Supreme Court heard oral arguments in Carpenter v. United States, which concerns the legal standard that law enforcement must meet to obtain cellphone location data covering an extended period of time. The Court has been asked to determine whether federal law enforcement officials investigating a robbery must use a probable cause warrant — rather than just orders issued under the less stringent Stored Communications Act (SCA) — to obtain cellphone location data. Like other Fourth Amendment search-and-seizure cases involving personal data, Carpenter hinges on a tension between two important policy goals: preserving citizens’ personal privacy rights and ensuring that law enforcement has the investigative tools needed to protect citizens from crime.

The petitioner, Timothy Carpenter, is challenging his conviction on the basis that cellphone location records introduced as evidence by prosecutors at his trial were improperly admitted. The cellphone records (which included over 100 days of location data) were inadmissible, Carpenter argues, because he had a reasonable expectation of privacy in the records, and FBI investigators violated his Fourth Amendment rights when they did not secure a probable cause warrant to obtain the records from his cell service provider — instead, they relied on a court order under the SCA, which uses a less stringent legal standard. Under existing case law, the government argues that Carpenter had no reasonable expectation of privacy in the cellphone data, because by using his service provider’s network, he had provided the data voluntarily to his service provider, a third party.

The court’s eventual ruling in Carpenter could have significant implications for investigative techniques involving the collection of communications data from third parties, such as telephone and internet service providers. Some justices, including Justice Sonia Sotomayor, have suggested that changes in the way people use cellphones since earlier cases were decided may justify finding an expectation of privacy in cellphone data, especially data that is collected on a continuous basis and could be easily exploited for surveillance purposes, such as location data.

Federal Legislation – Washington Races to Pass Legislation

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

November was a busy month in Congress as lawmakers tried to pass legislation before the Thanksgiving recess. The biggest focus was on tax reform, but legislators and the Trump Administration also devoted significant time to the ongoing opioid abuse epidemic and the federal response.

PORAC Submits Testimony to House Committee Examining the Opioid Crisis

On October 25, the House Energy and Commerce Committee held a hearing titled “Federal Efforts to Combat the Opioid Crisis,” in which members sought information on the causes of the ongoing nationwide opioid abuse epidemic and heard testimony on potential legislative solutions to the problem. Congress Member Mimi Walters (R-Calif.) submitted PORAC President Mike Durant’s prepared testimony.

PORAC’s testimony advised against complacency in the ongoing fight against the opioid epidemic and encouraged Congress to devote additional resources to the problem. The testimony emphasized the growing role that police and public safety personnel are playing on the frontlines of the battle against opioid abuse as funding and programming for community health initiatives have declined. PORAC asked lawmakers to take this growing role into account as they consider budgets and cautioned that funding cuts could hamper community policing — a crucial part of the response to the opioid crisis in California and around the nation.

PORAC also commended the Drug Enforcement Administration (DEA) for its efforts to inform law enforcement and other first responders about the hazards of responding to emergencies involving fentanyl — an extremely potent opioid that can be life-threatening even in small quantities, and can be absorbed through inadvertent inhalation or contact with the skin or eyes. The DEA warning came after several peace officers around the country accidentally came into contact with the drug and suffered severe negative health effects.

PORAC put forth five concrete policy solutions for Congress to consider as it strives to fight the opioid epidemic:

  • Work to seal our borders to prevent the entry of illegal drugs from abroad
  • Enact laws to ensure that opioid pharmaceuticals are prescribed in a safe manner
  • Fully fund community policing efforts and social services programs
  • Provide resources to law enforcement to help mitigate the health risks posed to officers by fentanyl, including guidance from appropriate federal agencies such as the DEA and FDA
  • Carefully review the recommendations of the President’s Commission on Combating Drug Addiction and the Opioid Crisis

On November 1, the President’s Commission on Combating Drug Addiction and the Opioid Crisis released a report recommending that the federal government:

  • Streamline federal funding for anti-drug addiction efforts into a block grant
  • Remove barriers to addiction treatment by, among other things, enforcing parity laws requiring insurers to pay for drug rehabilitation and related care
  • Open drug courts in all federal jurisdictions
  • Release a “national curriculum and standard of care for opioid prescribers” through the Department of Health and Human Services
  • Revise the National Highway Traffic Safety Administration’s best practices guide on naloxone to recommend that all emergency medical responders carry naloxone
  • Enhance federal sentencing penalties for fentanyl trafficking
  • Launch a federally funded media campaign on the dangers of opioids and addiction stigma

House Republicans Release Tax Overhaul Bill

The effort to pass tax reform legislation is expected to dominate Congress’ schedule for the remainder of the year, and is a top priority for the Trump Administration.

On November 2, House Ways and Means Committee Chairman Kevin Brady (R-Texas) unveiled a draft tax reform bill that would, among other things:

  • Nearly double the standard deduction (the dollar amount that individual taxpayers may subtract from their income before income tax is applied if they do not itemize their deductions) to $12,000 for individuals and $24,000 for couples
  • Reduce the current number of individual tax brackets from seven to four — with levels of taxable income at 12%, 25%, 35% and 39.6% (the current level for the highest earners)
  • Repeal the alternative minimum tax, which prevents those earning over $130,000 from using deductions to pay less than a specified amount in taxes
  • Phase out the tax required on the transfer of a deceased person’s estate (known as the estate tax)
  • Increase the child tax credit from $1,000 to $1,600

The bill’s release was delayed as Republican leadership worked with rank-and-file members on controversial provisions in the draft bill, including a proposal to eliminate the federal deduction for state and local taxes. The proposal drew opposition from a number of Republican members from higher-tax states, such as California, New York and New Jersey. Republican leaders included a compromise that would allow individuals to deduct state and local property taxes (though not income or sales taxes) up to $10,000. At the time this issue went to print, the Ways and Means Committee had passed the bill out of committee and House Republican leadership had said the goal is to pass the bill out of the House the week of November 13. Senate Republicans, meanwhile, released information on their tax bill on November 9, which indicates that the Senate version will differ in significant ways from the House bill.

Department of Justice Announces New Funding for Community Policing Efforts and Active-Shooter Training

On October 23, the DOJ announced nearly $9 million in new funding through its Office of Community Oriented Policing Services (COPS) to support community policing and  provide training to help law enforcement officers prepare for active-shooter situations. $3.6 million in Community Policing Development (CPD) program grants will go to grantees that provide community policing training and technical assistance, develop innovative community policing strategies, conduct applied research, and develop guidebooks and best practices. Among the CPD grantees is the City of Stockton, California, which will receive $75,000 to implement the Stockton Police Department’s Safety, Health, Resilience, Endurance and Development (SHRED) program.

In addition, the COPS Office will award $5.4 million in grants, from the Preparing for Active Shooter Situations (PASS) Training Program to the Advanced Law Enforcement Rapid Response Training (ALERRT) Center at Texas State University. The grants will support scenario-based training that prepares law enforcement officers and other first responders to respond safely and effectively to active-shooter threats. Awards for all FY2017 COPS Office grant programs but one — the Collaborative Reform Initiative for Technical Assistance (CRI-TA) — have been announced. CRI-TA grants fund training and technical assistance projects designed to advance community policing. The COPS Office plans to announce FY2017 CRI-TA awards after December 1, 2017.

Senate Judiciary Committee Releases New Bipartisan Sentencing Reform Legislation

On October 4, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) introduced the Sentencing Reform and Corrections Act of 2017 (S. 1917) along with five Republican and five Democratic co-sponsors, including Senator Dianne Feinstein (D-Calif.). The bill includes provisions that would recalibrate prison sentences for nonviolent drug offenders, strengthen penalties for violent and career criminals, permit judicial discretion at sentencing for offenders with minimal criminal histories, help released inmates successfully re-enter society, and preserve important prosecutorial tools.

The bill also authorizes $14 million to create a two-year National Criminal Justice Commission that would undertake a comprehensive review of the U.S. criminal justice system and make recommendations to the president and Congress for changes in federal policies to reduce crime and violence, reduce recidivism and improve cost-effectiveness.

A summary of the legislation’s provisions addressing mandatory minimums, violent offenses, drug offenses and recidivism reduction is provided below.

Mandatory minimum sentencing reform: The legislation would reduce mandatory minimum sentences for prior drug felons by shortening the three-strike penalty from life imprisonment to 25 years and reducing the 20-year minimum to 15 years. The legislation would also give judges more discretion in sentencing nonviolent offenders.

Enhancement of mandatory minimum sentences for certain violent offenses and drug crimes: A new mandatory minimum sentence of 10 years would apply for offenders convicted of interstate domestic violence if death results. In addition, the bill would provide enhanced penalties for interstate domestic violence offenses that involve the use of a dangerous weapon or result in permanent disfigurement or life-threatening injury. With regard to the opioid epidemic, judges would be required to increase sentences by up to five years for offenses involving fentanyl.

Recidivism reduction: The legislation would require the DOJ to provide new recidivism reduction programming and conduct recidivism risk assessments for all federal inmates. DOJ would use assessment results to assign inmates to employment, education, drug rehabilitation and faith-based recidivism reduction programs. Prisoners who successfully complete these programs could earn early release and be permitted to spend a portion of their remaining sentence in a re-entry center or home confinement.

Reforms aimed at juveniles and elderly inmates: The bill would allow juveniles convicted as adults and sentenced to life terms to seek parole after serving 20 years, and would impose limitations on the use of solitary confinement for juveniles in the federal system. In addition, the legislation would create a “compassionate release” program that would permit nonviolent offenders over 60 years old, offenders in nursing homes who have served a large portion of their sentences and terminally ill offenders to secure release in certain circumstances.

It is unclear when the Senate Judiciary Committee will take up this legislation. There is no companion bill in the House, but the House Judiciary Committee is considering standalone legislation identical to the National Criminal Justice Commission provision in the Senate bill.