Federal Legislation – Unprecedented Action in an Unprecedented Time

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

The United States is facing an unprecedented crisis, and first responders are on the front lines. As the COVID-19 pandemic continues to wreak havoc across the country, Congress and the Trump administration have taken drastic action to provide relief. On March 27, President Trump signed into law the bipartisan Coronavirus Aid, Relief and Economic Security (CARES) Act, a massive $2 trillion package designed to both combat the virus and stimulate the economy by providing immediate assistance to hospitals, states, municipalities, small businesses and individuals.

Among the relief funding included in the CARES Act was $850 million for the Department of Justice’s Coronavirus Emergency Supplemental Funding Program. This fund sets aside money for states, local governments and tribes to respond to COVID-19. The funds, which are available to all government entities that were eligible for Edward Byrne Memorial Justice Assistance Grants in fiscal year 2019, can be used by law enforcement agencies for providing overtime, law enforcement and medical personal protective equipment (PPE), hiring, supplies (such as gloves, masks and sanitizer), training, travel expenses and medical care for inmates in detention centers.

At the time this issue went to print, and as the medical and economic crisis worsens, it is likely that Congress and the Trump administration will work toward additional relief measures. In particular, both House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer have expressed their desire for $150 billion in additional funding for state and local governments. PORAC is actively engaging with Congress to ensure that this funding is made available to law enforcement agencies, as well as to ensure that municipalities taking any eventual funding are unable to lay off public safety officers.

PORAC Responds to the COVID-19 Crisis

PORAC has been heavily engaged with federal policymakers to ensure that public safety officers across California are receiving the aid and resources they need to serve our communities during this crisis. During the week of March 23, PORAC held a series of tele-town halls for each of PORAC’s four regions. In each town hall, PORAC members were joined by dozens of state and federal lawmakers. Members shared their needs and experiences of law enforcement on the ground in California. In turn, lawmakers asked questions and were able to provide their own updates on the progress of the federal response. During one town hall, Representative Norma Torres even announced that she had several sources of PPE that she could provide to law enforcement agencies in her district. Within days, Representative Torres had done so. These town halls have provided a basis for increased coordination between PORAC and lawmakers.

In addition to the greatly successful PORAC tele-town halls, PORAC has sent letters to congressional leadership, Labor Secretary Eugene Scalia and President Trump stressing the need for attention to the needs of law enforcement officers. In addition, PORAC stressed the need for COVID-19 to be established as a presumptive occupational illness, which would ensure coverage and benefits for law enforcement officers that contract the virus on the job. These letters to the president and to the secretary of Labor are republished here. PORAC continues to work on these important issues with our congressional allies and will do so for the duration of this crisis.

Federal Legislation – Amid Uncertainty, PORAC Goes to Washington

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

As fears over the coronavirus grew, and only hours before congressional offices largely closed their doors to outside visitors, the PORAC Executive Committee spent two days in Washington, D.C., speaking to lawmakers and policymakers about the needs of law enforcement officers across the state of California. March 11–12, PORAC Executive Committee members met with 24 offices from the California delegation to the United States House of Representatives, the offices of both California senators, three different Senate and House committees, members of the Attorney General’s Office, Assistant Attorney General Katie Sullivan, and Phil Keith, director of the Community Oriented Policing Services (COPS) program and chair of the Presidential Commission on Law Enforcement and the Administration of Justice. Throughout these meetings, PORAC relentlessly advocated for the issues and needs of the California law enforcement community.

During PORAC’s time in Washington, several issues took precedence over others. Among these were:

  • Federal funding for grants to state, local and tribal law enforcement agencies, such as the COPS program, Edward Byrne Justice Assistance Grants (Byrne JAG) and High-Intensity Drug Trafficking Area (HIDTA) program
  • Protecting the retirements of law enforcement officers and all public employees by reforming the Social Security Windfall Elimination Provision (WEP) through support of House Ways and Means Chairman Richie Neal’s (D-MA-1) H.R. 4540, the Public Servants Protection and Fairness Act, and S. 521/H.R. 141, the Social Security Fairness Act
  • Preventing violence against police officers by promoting Representative Lou Correa’s (D-CA-16) H.R. 5251, the Improving Community Safety Task Force Act, and S. 1480/H.R. 5395, the Back the Blue Act
  • Improving mental health care for law enforcement officers and communities through Representative Josh Harder’s (D-CA-10) H.R. 2696, the Supporting the Health and Safety of Law Enforcement Act, and S. 2746/H.R. 3735, the Law Enforcement Suicide Data Collection Act
  • Supporting the families of fallen law enforcement officers through H.R. 2697, the Corporal Ronil Singh and Fallen Heroes Scholarship Act, a bill from Representative Harder to provide Pell Grants to the spouses of fallen officers

In meetings with members of Congress, congressional staff and Trump administration officials, PORAC Executive Committee members made a compelling case for the prioritization of these issues and delivered important information on the challenges facing law enforcement officers across California. Despite the uncertainty surrounding Congress as the coronavirus situation escalates into a pandemic, PORAC will continue this advocacy in Washington until the needs of law enforcement are met.  

Federal Legislation – In the Thick of It (Impeachment) 

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

The slow-moving drama of President Donald Trump’s impeachment has continued to dominate Washington. Our articles in this space have spent the last several months discussing impeachment’s progress through the House of Representatives, and the process has now officially moved to the Senate. How did it get there, and what happens next?

The House Finishes Its Work

As PORAC’s January magazine went to print, the House was in the process of drafting articles of impeachment prior to a vote. In the final version of those articles, President Trump was impeached for “abuse of power,” in relation to his interactions with Ukraine, and “obstruction of Congress,” for his administration’s refusal to comply with multiple subpoena requests from the House. On December 18, these articles were passed on a largely party-line 229–198 vote, with one Democrat, Representative Jeff Van Drew of New Jersey, even switching parties after voting no.

Simply approving the impeachment articles is not, however, the end of the House’s role in the process. The House must transmit those articles to the Senate, which starts the Senate’s trial, and also must vote on the appointment of “impeachment managers,” a group of lawmakers who will essentially act as prosecutors during the trial. Generally, a vote on impeachment managers and transmittal occurs shortly after approval of the articles. In this case, however, Speaker of the House Nancy Pelosi (D-Calif.) decided to withhold the articles from the Senate, hoping that a delay would put pressure on Senate Majority Leader Mitch McConnell (R-Ky.) to clarify the details of the trial process. McConnell, for his part, maintained that he was under no obligation to reveal details and that he had the votes to advance trial rules with only Republican support.

The stalemate endured over the holidays and into the new year before Pelosi ultimately opted to transmit the articles without precondition. On January 15, she announced her team of impeachment managers:

  • Intelligence Committee Chairman Adam Schiff (D-Calif.)
  • Judiciary Committee Chairman Jerry Nadler (D-N.Y.)
  • Representative Zoe Lofgren (D-Calif.)
  • Representative Val Demings (D-Fla.)
  • Representative Hakeem Jeffries (D-N.Y.)
  • Representative Jason Crow (D-Colo.)
  • Representative Sylvia Garcia (D-Texas)

The appointment of these impeachment managers was approved on a 228–193 party-line vote. That same day, Demings, along with the other impeachment managers, physically carried the articles across the United States Capitol to the Senate. The following day, January 16, the impeachment managers, led by Schiff, formally read the articles to the Senate, marking the official start of the trial.

The Senate Takes Over

The Constitution clearly establishes that, when a federal official is impeached, the Senate acts as a jury and the chief justice of the Supreme Court, in this case, John Roberts, presides. However, it is much more ambiguous regarding the actual conduct of the trial. Senators must be physically present, but beyond this basic requirement the Senate has significant leeway to govern a trial as it sees fit. At the time this article went to print, the rules had not yet been approved.

But, nevertheless, the trial has begun. Immediately following the formal presentation of the impeachment articles by Schiff, Roberts administered the oath to “do impartial justice” to all 100 senators, who also signed the oath in writing. Now, the Senate must formulate, debate and approve the rules under which the trial will be administered.
As previously mentioned, the shape of those rules will take is unknown. However, McConnell has given away a few hints, noting that he would like the trial to resemble the impeachment proceedings during the Clinton administration. That could mean:

  • The Senate meets every day except for Sundays, as it did during the Clinton trial.
  • Formal legal briefs from the White House and the House of Representatives may be drafted and filed, leading to a brief break in the actual trial portion of the proceedings.
  • There may be multiple days of arguments from both the impeachment managers and the president’s legal team, followed by multiple days of questioning.
  • There may be several days of deliberations and closing arguments before a vote.

It could also mean witnesses, or not. Whether McConnell will allow witnesses to be called is a contentious question, and one that remains unresolved. Whatever the answer, it will be decided soon. From the time this issue goes to print until a verdict is reached, the Senate will focus solely on impeachment. Only time will tell how the trial proceeds.

What It Means for Law Enforcement

What does this all mean for law enforcement issues in Congress, and for PORAC priorities in particular? In all likelihood, not much. While the Senate will be taken out of the legislative process for several weeks, an unfortunate loss of time in a year already likely to be light on legislating due to the election cycle, the House, including relevant committees such as Judiciary, is now unencumbered by impeachment.

In addition, Congress as a whole has taken pains to show that it is able to accomplish work regardless of the impeachment proceedings, with both the House and Senate passing President Trump’s new trade deal with Mexico and Canada, the United States–Mexico–Canada Agreement (USMCA), prior to the trial. It is possible that PORAC priorities such as law enforcement funding, the Improving Community Safety Task Force Act, and the Public Servants Protection and Fairness Act are able to find similar bipartisan support. As PORAC’s voice in Washington, Steptoe will continue to advocate on these issues and others in the coming weeks and months.

Federal Legislation – Happy New Year: Buckle Up for 2020

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

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

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

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

Trial of the Century?

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

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

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

Election Year is Here

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

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

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

Federal Funding in Limbo

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

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

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

PORAC Priorities in 2020

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

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

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

Federal Legislation – Congress Promotes Law Enforcement Mental Health

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

Amid Fourth of July fireworks and explosive political battles, with all eyes focused on clashes between congressional insurgents, congressional leadership and the disrupter in the White House, Congress quietly took time to address mental health services for law enforcement officers.

Most legislative action was packed into the week of July 8, although an important amendment offered by Representative Raul Ruiz (D-Calif.) was included in the Commerce-Justice-Science (CJS) funding bill that passed on June 25. On July 11, Senator Jeanne Shaheen (D-N.H.) introduced the Turn the Tide Act, a wide-ranging opioid bill that also included funds for the psychological well-being of officers on the front lines of the opioid crisis. On July 12, the Law Enforcement Suicide Data Collection Act, a bill that would require the Federal Bureau of Investigation (FBI) to collect and publish data on law enforcement suicides, was introduced by Representative Mike Quigley (D-Ill.). The Supporting and Treating Officers in Crisis (STOIC) Act, which provides mental health support for law enforcement officers, passed the U.S. House of Representatives on July 10 and now goes to the desk of President Donald Trump, who is expected to sign it. All of these bills are discussed in greater detail below.

Amendment Increases Funding for Mental Health Services

On June 25, the House of Representatives passed the Commerce-Justice-Science (CJS) funding package, which contains most federal funding for law enforcement. As originally drafted, H.R. 3055 contained $2 million annually for “training, peer mentoring, and mental health program activities,” to be distributed through the Community Oriented Policing Services (COPS) grant program. A PORAC-supported amendment offered by Representative Raul Ruiz (D-Calif.) increased that funding from $2 million to $4 million for 2020. Reflecting on the amendment, Ruiz stated that he spoke with law enforcement officers who told him “what it means to put your life at risk and work in a really tough environment.”

While the CJS funding bill was approved by the House, it is unlikely to pass the Senate in its current form. Congressional leaders are currently working with Treasury Secretary Steven Mnuchin on a deal to raise the debt limit, lift spending caps and reach some sort of compromise on funding federal agencies.1 While this could mean that the bill is part of a larger compromise, and that the funding for the Department of Justice and law enforcement remains intact, it is also possible that the levels of funding will change drastically between now and the time a deal reaches the president’s desk.

The Turn the Tide Act

On July 11, Senator Jeanne Shaheen (D-N.H.) introduced the Turn the Tide Act, a sweeping anti-opioid bill that greatly increases the funds available for treatment services by $63 billion over the next 10 years. The opioid epidemic affects every community in America and is taking over 70,000 lives a year while costing the economy roughly $500 billion. Shaheen’s bill seeks to address and reduce this terrible loss of life.

In recognition of the stress that responding to the opioid crisis has had on law enforcement officers across the nation, the bill includes $10 million for “peer mentoring and wellness pilot programs within State, tribal, and local law enforcement agencies.” In a press release, Shaheen emphasized the traumatic conditions in which law enforcement officers often work, which have only been exacerbated by the scourge of opioids. The funding in the Turn the Tide Act is set to provide support for those who have been called on to serve as the first line of defense for communities across the nation.

The Turn the Tide Act has been referred to the Senate Committee on Health, Education, Labor and Pensions.

The Law Enforcement Suicide Data Collection Act

Just a day after the introduction of the Turn the Tide Act in the Senate, Representative Mike Quigley (D-Ill.) introduced the PORAC-supported H.R. 3735, the Law Enforcement Suicide Data Collection Act, which has been referred to the House Committee on the Judiciary.

This bill would require the FBI to collect data on law enforcement and former law enforcement suicides and attempted suicides, which would then be presented in an annual and publicly available report to Congress. Quigley stated that the Law Enforcement Suicide Data Collection Act would allow Congress and all levels of government to “better serve law enforcement officers, establish effective prevention practices, and save lives.” By targeting data collection efforts to understand suicide rates among law enforcement officers, the legislation aims to give law enforcement agencies, legislators and regulators the information they need to put effective suicide prevention programs into place. In 2019 alone there have been more than 100 verified law enforcement suicides, and law enforcement officers are more likely to die by suicide than in the line of duty.2

The STOIC Act

On July 10, the STOIC Act, S. 998, passed the Senate by voice vote. The bill’s sponsor, Senator Josh Hawley (R-Mo.), tweeted, “With this bill, we’re doing more to prevent police suicide and get our officers the help & resources they deserve.”

The PORAC-supported STOIC Act updates the Omnibus Crime Control and Safe Streets Act of 1968 to broaden the purposes for which officers receive support. Whereas the current law provides funding for only the nebulously defined “stress reduction” or “family support services,” the STOIC Act broadens the language to include “psychological services,” “suicide prevention” and “mental health services.” By expanding the listed services, the STOIC Act will more effectively ensure that law enforcement officers across the nation receive more of the support that they need to carry out their duties. The STOIC Act provides $7.5 million for these programs annually through 2024.

Now that the bill has passed both chambers of Congress with overwhelming and bipartisan support, it has been sent to President Trump for his signature. There is little doubt that he will sign the bill (although he had not done so at the time this issue went to print) and that law enforcement officers will begin to receive the expanded services provided under the legislation.

Supreme Court Weighs in on Issues Important to
Law Enforcement

The United States Supreme Court recently issued a number of decisions on issues ranging from political gerrymandering to a citizenship question on the census. While the ramifications of these decisions will likely be felt across American society, there were three decisions in particular more relevant for law enforcement officers and agencies. Mitchell v. Wisconsin dealt with blood tests of unconscious DUI suspects, United States v. Davis centered on the term “crime of violence” and United States v. Haymond grappled with the right to a jury trial.

Mitchell v. Wisconsin

The decision in Mitchell v. Wisconsin may well prove to have the most immediate effect on the conduct of law enforcement. At issue in the case was whether law enforcement had violated the respondent’s Fourth Amendment right to be free from a warrantless search by taking a blood test while the respondent was unconscious and under suspicion of a DUI.

In a 5–4 decision, the Supreme Court found that, due to the circumstances of the blood test, law enforcement was justified in administering the test. Going forward, this means that if law enforcement stops a motorist under the suspicion of a DUI and that motorist subsequently loses consciousness, officers are permitted to draw blood in pursuit of their investigation.

United States v. Davis

United States v. Davis may have less of an immediate effect on how law enforcement conducts itself, but it will influence sentencing and may prove contentious. In a 5–4 decision, with an opinion authored by Justice Neil Gorsuch, the court held that the term “crime of violence” is unconstitutionally vague, and as such the respondent could not be given an enhanced penalty for using a firearm while committing a “crime of violence.”

As a result, judges will no longer be allowed to hand down harsher sentences for certain crimes that involve a firearm, something that could lead to earlier releases for certain offenders. In addition to that narrower ramification, it is also possible that this leads to a change in the definition of “crime of violence” at the federal level. Representative Martha Roby (R-Ala.) has already introduced H.R. 3533, the Combat Violent Crime Act, in an attempt to clarify that definition. While that legislation is unlikely to pass the Democrat-controlled House, it is may gain traction following the ruling by Gorsuch.

United States v. Haymond

United States v. Haymond dealt with the fundamental right to a jury trial guaranteed under the Fifth and Sixth Amendments.

While on supervised release for a child pornography conviction, the respondent was discovered to once again be in possession of child pornography. Without a jury trial, a district court judge found the respondent guilty of a new offense with a higher mandatory minimum, ruling on a preponderance of the evidence that the respondent was guilty. With Gorsuch authoring the opinion, the Supreme Court found 5–4 that the respondent’s right to jury trial had been violated. As a result, law enforcement should be prepared to be called to testify and provide evidence in similar circumstances.

 

Footnotes

1          Kellie Mejdrich, “Mnuchin: Parties moving closer on debt limit, spending caps,” CQ (July 15, 2019).

2          “Quigley, Dean, Steube Introduce Legislation to Collect Data on Law Enforcement Suicide Rates,” Congressman Mike Quigley (July 12, 2019).

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.