Federal Legislation – Urges Protection of Law Enforcement Funding

Darryl Nirenberg
Eva Rigamonti
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
Eva Rigamonti
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
Eva Rigamonti
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
Eva Rigamonti
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
Eva Rigamonti
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.

Federal Legislation – Congress Addresses Opioid Epidemic

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

PORAC Submits Testimony to House, Senate Committee Hearings on Opioid Abuse

Congress continues to examine the epidemic of opioid abuse that is plaguing communities across the country. Addressing this crisis is a top priority for PORAC, as recent estimates from the Centers for Disease Control and Prevention show that drug overdose deaths in 2016 most likely exceeded 64,000 — an increase of more than 22% over the 2015 total. According to the state’s Department of Public Health, 1,925 opioid overdose deaths occurred last year in California alone — an average of more than five deaths every single day.

On October 5, the Senate Committee on Health, Education, Labor and Pensions held a hearing titled “Examining the Federal Response to the Opioid Crisis.” Similarly, the House Energy and Commerce Committee conducted a “member day” hearing on the epidemic, during which lawmakers provided testimony on the status of the crisis in their respective districts.

The Senate hearing focused on efforts and programming within the U.S. Department of Health and Human Services to prevent opioid abuse, such as through ensuring safe prescribing practices, thwarting prescription fraud and developing alternative pain management treatments. PORAC was proud to share its perspective on this crisis with the Committee through written testimony, and highlighted the health risks that opioid abuse poses to addicts and to first responders as well.

PORAC explained to lawmakers that law enforcement has been encountering more and more drugs that contain fentanyl, which can be 50 times more potent than heroin. Because of fentanyl’s potency — and because law enforcement must respond to drug overdoses with increasing regularity — it represents an unusual health hazard for police and public safety personnel. The Drug Enforcement Agency (DEA) has warned law enforcement about the dangers of exposure to the substance, trace amounts of which can be deadly when ingested orally, inhaled through the mouth or nose, or absorbed through the skin or eyes. PORAC’s testimony endeavored to inform the committee about this growing threat and encourage its members to support federal efforts to mitigate this risk to law enforcement. 

Additionally, PORAC recommended that policymakers work to seal our borders to prevent the entry of illegal drugs from abroad; enact laws to ensure that opioid pharmaceuticals are being prescribed in a safe manner; fully fund community policing efforts and social services programs; and carefully review and consider the recommendations of the newly formed President’s Commission on Combating Drug Addiction and the Opioid Crisis.

DOJ Announces Funding to Combat Opioid Epidemic, Human Trafficking

The Department of Justice (DOJ) recently announced awards totaling $59 million to help combat the opioid epidemic and another $47 million to fight human trafficking and assist its victims. PORAC has advocated for this critical funding and is encouraged that policymakers recognize its importance.

Opioid Funding: Within the funding for combating opioid abuse, $24 million will be awarded to 50 cities, counties and public health departments to provide financial and technical assistance for the development of comprehensive diversion programs and alternatives to incarceration for those impacted by opioid addiction. Another $3 million has been awarded to the National Institute of Justice for research and evaluation on drugs and crime, with a particular emphasis on heroin, opioids and synthetic drugs.

The DOJ is also working to address opioid abuse through the court system, and has awarded grants totaling more than $22 million to 53 jurisdictions to support the implementation and enhancement of adult drug courts and Veterans Treatment Courts.

A number of entities in California are set to receive funding for enhancing their existing drug and veterans court systems, including the San Francisco Superior Court ($395,348), Solano County Superior Court ($398,342), the Ninth Circuit Court ($399,994), the Monterey County Probation Department ($400,000) and the Orange County Superior Court ($246,465). Additionally, DOJ has awarded $9.5 million to help jurisdictions build effective family drug treatment courts and juvenile drug treatment courts, of which $1.45 million was granted to the Center for Children and Family Futures in Lakewood, California.

Human Trafficking Funding: Within the funding for fighting human trafficking, more than $10 million is slated for comprehensive and specialized services for trafficking victims, including housing programs, economic empowerment services and legal assistance. In California, the Coalition to Abolish Slavery Trafficking (Los Angeles County) will receive $750,000 of this funding; Bay Area Legal Aid (Alameda, Contra Costa, San Mateo and San Francisco counties) will receive $600,000; and North County Lifeline (San Diego) will receive $600,000. Furthermore, the California Governor’s Office of Emergency Services has been awarded nearly $1.5 million to develop strategies to identify and assist child victims of trafficking, while another $1.5 million will go to a joint effort between the Anaheim Police Department and Community Service Programs (Orange County) to implement victim-centered support services.

Congress Passes Pair of PORAC-Supported Bills

In early October, Congress passed a pair of PORAC-supported bills and sent them to President Trump for his signature.

On October 3, the Senate approved by voice vote the House-passed Strengthening State and Local Cyber Crime Fighting Act of 2017 (H.R. 1616). The bill would reauthorize the National Computer Forensics Institute within the U.S. Secret Service, the core functions of which include educating officers on current cyber and electronic crimes, training officers to conduct investigations of such crimes and providing officers with computer equipment necessary to conduct cybercrime investigations.

Also on October 3, the House of Representatives approved by voice vote the Senate-passed Elder Abuse Prevention and Prosecution Act (S. 178). The bill directs the DOJ to provide information, training and technical assistance to help states and local governments investigate, prosecute, prevent and mitigate the impact of elder abuse, exploitation and neglect. It also requires the DOJ to report to Congress on its outreach to state and local law enforcement agencies on the process for collaborating with the federal government to investigate and prosecute interstate and international elder financial exploitation cases.

At the time this issue went to print, both H.R. 1616 and S. 178 were awaiting President Trump’s signature to become law.

Second Annual Coffee With a Cop Day

On October 4, law enforcement agencies across the country participated in the second annual National Coffee with a Cop Day facilitated with the support of the DOJ’s Community Oriented Policing Services (COPS) Office. Coffee with a Cop is a movement designed to help break down the barriers in communities between residents and officers that can make it difficult to properly combat crime and preserve public safety. The premise of these events is simple: Officers invite their fellow community members to join them for a cup of coffee and a conversation.

The first Coffee with a Cop event was organized in 2011 by the Hawthorne (California) Police Department as a way to help officers interact more successfully with the citizens they serve. More than five years and countless events later, over 2,000 U.S. law enforcement agencies now participate in the movement, which has expanded to Canada, Europe and Australia.

Federal Legislation – Lawmakers Listen to PORAC’s Priorities

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

Over the course of two days in mid-September, several members of PORAC’s Board of Directors met with more than 25 members of California’s congressional delegation, as well as with the White House and the Senate and House Judiciary Committees, to advocate for policies and principles that will help to ensure public safety.

President Mike Durant, Virginia Tinoco (Ventura County DSA), Representative Salud Carbajal, Director Tony Sanders, Vice President Brent Meyer, and Directors Barry Donelan and Don Morrissey

In addition to meeting with the offices of Senators Dianne Feinstein (D) and Kamala Harris (D), PORAC also met with Representatives Ken Calvert (R-42), Mike Thompson (D-5), Salud Carbajal (D-24), Tony Cardenas (D-29), Jimmy Panetta (D-20), Paul Cook (R-8), Zoe Lofgren (D-19), Linda Sanchez (D-38), Darrell Issa (R-49), David Valadao (R-21), Jim Costa (D-16), Jeff Denham (R-10), Karen Bass (D-37), Eric Swalwell (D-15), Steve Knight (R-25), Scott Peters (D-52), Pete Aguilar (D-31), Lucille Roybal-Allard (D-40), Juan Vargas (D-51), Jerry McNerney (D-9), Doug LaMalfa (R-1), Jared Huffman (D-2), Norma Torres (D-35), Julia Brownley (D-26), Doris Matsui (D-6) and Mimi Walters (R-45). The group also had discussions with Senate Judiciary Committee Majority staff, House Judiciary Committee Minority staff and a special assistant to the president.

Members of Congress and their staffs were eager to hear PORAC’s perspective on a range of issues, because they recognize and respect the Association’s thoughtful and well-informed approach to public policy. As always, advocating for the full funding of critical state and local law enforcement programs was a top priority.

President Mike Durant, Representative Mimi Walters, Director Tony Sanders and Virginia Tinoco (Ventura County DSA)

PORAC specifically urged lawmakers to maintain or increase funding for Edward Byrne Memorial Justice Assistance Grants (Byrne-JAG), the Community Oriented Policing Services (COPS) program, the High Intensity Drug Trafficking Areas (HIDTA) program, and body-worn camera grant programs — providing real-world anecdotes to demonstrate the efficacy and importance of such federal support.

PORAC explained to policymakers how these funding streams are essential for combating two of the most pressing threats to public safety in America today: opioid abuse and gang violence. Regarding each of these growing problems, PORAC offered a number of guiding principles that it believes Congress should abide by when crafting legislative solutions.

On the opioid abuse front, PORAC is advocating for a multifaceted strategy against the scourge, including enhanced border security, more fulsome social services and a crackdown on fraudulent prescribing practices by medical professionals. PORAC also encouraged policymakers to carefully consider the recommendations of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, which were released this month.

On the issue of gangs and gang violence, PORAC stressed the need to increase operational coordination with state and local law enforcement agencies at the preventative, investigatory and prosecutorial levels. The group also articulated its belief that the federal government should be regularly tracking and reporting on the trends in gang presence, characteristics and behaviors so that law enforcement has a more complete understanding of the threat they face.

Above all, PORAC emphasized that lawmakers should not hesitate to use the Association’s expertise and experience as a resource on any issues impacting law enforcement — whether it be through providing testimony, data or a position on specific policy.

Trump Reverses Obama Administration’s Ban on Surplus Equipment to Cops

In late August, President Trump signed an executive order on “Restoring State, Tribal, and Local Law Enforcement’s Access to Life-Saving Equipment and Resources.” The order revokes a policy implemented by President Obama in 2015 that placed restrictions on the types of surplus military equipment that state and local law enforcement agencies are allowed to obtain from the federal government.

Former President Obama’s order halted the transfer of gear, weapons and other devices (such as explosives, battering rams, riot helmets and shields) to state and local agencies, and in many cases required local agencies to return equipment that they had received from the federal government. In fact, since Obama’s executive order, approximately 125 tracked armored vehicles, 140 grenade launchers and 1,600 bayonets have been returned to the federal government.

Trump’s executive order directs all executive departments and agencies to cease applying the previous order and “if necessary, to take prompt action to rescind any rules, regulations, guidelines, or policies implementing” it.

In announcing the reversal of policy, Attorney General Jeff Sessions said that the Obama administration’s “restrictions went too far” and that the Trump administration “will not put superficial concerns above public safety.” State and local law enforcement officials across the country have come to the defense of the surplus equipment program — also known as the 1033 Program — arguing that it provides agencies with advanced equipment that they would otherwise be unable to afford with such limited budgets. Proponents have also pointed to the various public safety applications of this equipment. During the recent flooding in Texas, for example, law enforcement deployed armored vehicles to rescue and evacuate civilians.

President Trump Signs Rapid DNA Act Into Law

Just before Congress returned from its August recess, President Trump signed into law the Rapid DNA Act of 2017. PORAC has long been a vocal supporter of this legislation, although past iterations of the bill have failed to become law, and is very pleased that this important legislation was enacted.

PORAC was encouraged to see that the California congressional delegation played a prominent role in the bill’s passage, with Senator Feinstein (D-Calif.) as the lead co-sponsor of the Senate bill (S. 139) and Representative Eric Swalwell (D-15) as the lead co-sponsor of the House bill (H.R. 510). Additional co-sponsors from California included Jackie Speier (D-14), Mark DeSaulnier (D-11) and John Garamendi (D-3).

The legislation aims to implement the use of Rapid DNA instruments — instruments that are able to derive an automated DNA profile from a DNA sample — to inform decisions about pretrial release, exonerate the innocent and prevent DNA analysis backlogs. Specifically, the law amends the DNA identification Act of 1994 by requiring the director of the Federal Bureau of Investigation (FBI) to issue standards and procedures for the use of Rapid DNA instruments and resulting DNA analyses. It also amends the DNA Analysis Backlog Elimination Act of 2000 by allowing the FBI director to waive the required analysis if DNA samples have been analyzed by means of Rapid DNA instruments.

PORAC Encouraged by Inclusion of Operation Stonegarden Funding in DHS Bill

The Department of Homeland Security (DHS) authorization bill (H.R. 2825), which authorizes funding for DHS and was passed by the House before its August recess, includes robust funding for a program that is critical to combating narcotics and human trafficking along California’s expansive coastline.

Operation Stonegarden supports enhanced cooperation and coordination among Customs and Border Protection, the United States Border Patrol, and state and local law enforcement agencies in their efforts to secure the U.S. border. Funds administered through the program are used for a range of activities that help to ensure border security, including the hiring of additional law enforcement personnel, the payment of overtime to officers working on panga smuggling investigations, and the reimbursement of travel and lodging costs associated with increasing the presence of law enforcement along the border.

PORAC appreciates that California Representative Salud Carbajal (D-24) actively advocated for Operation Stonegarden funding, explaining in a letter to the House Appropriations Committee that this federal support “is particularly important in [his] district along the Central Coast of California where we have seen an increase in small-craft smuggling of narcotics and, in some cases, humans.” H.R. 2825 authorizes $110 million for Operation Stonegarden, although the funds must still be appropriated with the passage of a funding bill.

Federal Legislation – Congressional Recess Ends; PORAC Meets With Lawmakers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sessions Implements Immigration Compliance Requirements for DOJ Grant Recipients

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

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

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

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

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

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

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

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