Police Week at the Nation’s Capital

PORAC leadership commemorated National Police Week and attended the National Law Enforcement Officers Memorial in Washington, D.C., in mid-May. President Donald Trump paid tribute to the fallen officers at the memorial.

Federal Legislation – Urges Protection of Law Enforcement Funding

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
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 – Lawmakers Listen to PORAC’s Priorities

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
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.

Washington Fly-In Spring 2017

With a new administration in place, the PORAC advocacy team kicked off spring in our nation’s capital, meeting with California’s congressional representatives as well as committees and agencies responsible for public safety policy. PORAC’s meetings with lawmakers on March 21 and 22 centered around COPS funding and other issues of top importance to law enforcement in California and across the nation.

Law Enforcement Issues on the National Stage

DARRYL NIRENBERG
Partner
JASON ABEL
Of Counsel
EVA RIGAMONTI
Associate
CAMERON O’BRIEN
Legislative Assistant
Steptoe & Johnson LLP

Presidential Campaign Update

The most captivating and controversial presidential race in recent memory is coming into the homestretch as American voters prepare to elect their next commander in chief on November 8. Hillary Clinton has maintained a lead over Donald Trump since the parties held their respective national conventions this summer, as support for both candidates has fluctuated significantly. Both candidates have been burdened by very high unfavorable ratings (which may impact the victor’s ability to govern). Clinton and Trump each have what seems to be an immovable base of supporters, so their campaigns have focused on courting voters who remain undecided.

At the time this issue went to print, Clinton and Trump had participated in two of three presidential debates and their respective running mates, Virginia Senator Tim Kaine and Indiana Governor Mike Pence, had faced off in the sole vice presidential debate. While the debates focused heavily on the candidates’ character and record rather than their actual policy proposals, law enforcement issues received a significant amount of attention.

During the September fly-in, PORAC met with numerous California representatives in our nation’s capital. Pictured here are President Mike Durant, Director Mike Fender, Congressman Pete Aguilar, Secretary Marcelo Blanco, Director Tony Sanders and Virginia Tinoco (Ventura County DSA).
During the September fly-in, PORAC met with numerous California representatives. Pictured here are President Mike Durant, Director Mike Fender, Congressman Pete Aguilar, Treasurer Marcelo Blanco, Director Tony Sanders and Virginia Tinoco (Ventura County DSA).

Law Enforcement Issues in the Presidential Debate

During the presidential debates, the candidates were asked how they would heal the divide that exists between law enforcement and the communities they serve.

Secretary Clinton favored addressing the problem with a multifaceted approach: restoring trust between communities and the police, ensuring police receive the best possible training and preparing police to use force only when necessary. She also emphasized that the country needs to address systemic racism in the criminal justice system and said that, as President, she would specifically provide funding to help law enforcement agencies deal with implicit bias. In addition, Clinton said she would pursue reforms to divert people from the criminal justice system, eliminate “overly severe” mandatory minimum sentences and implement more second chance programs. Significantly, Clinton emphasized that to achieve any criminal justice reform, law enforcement must have a seat at the table and contribute their perspective to the conversation. With regard to gun safety, she called for comprehensive background checks and prohibiting anyone on the terrorist watch list from buying a firearm.

Mr. Trump depicted himself as the law-and-order candidate. Using the high murder rate in Chicago as a starting point, Trump spoke about the scourge of gun violence in inner cities and proposed implementing “stop and frisk” procedures in certain areas, saying they were extremely effective in New York City (where the practice has been ruled unconstitutional). He said the goal of stop-and-frisk is to get guns off of the streets and, in turn, reduce the incidence of gun violence. The practice, Trump emphasized, would target gangs, which he said were a growing problem perpetuated by illegal immigration. He did agree with Clinton that people on the no-fly list should not be able to buy guns.

Law Enforcement Issues in the Vice Presidential Debate

During the vice presidential debate, the nominees spent most of the discussion raising concerns about the other candidate’s running mate and defending their own running mates’ record, statements and actions. Despite the focus on personality over policy, Kaine and Pence did engage in a substantive conversation about law enforcement and race relations. At one point in the debate, the moderator asked each candidate if he agreed with Dallas Police Chief David Brown’s comments: “We’re asking cops to do too much in this country; every societal failure we put it off on the cops to solve.”

Senator Kaine agreed with Chief Brown’s comments and emphasized the importance of building “bonds of understanding” to narrow the gap that exists between communities and police forces. Kaine cautioned that police over-militarization and policies like stop-and-frisk would only increase polarization between law enforcement and communities. In addition to enhancing community policing efforts, Kaine said that a Clinton Administration would enact a comprehensive mental health reform package to assist law enforcement in responding to mental health crises.

Governor Pence said that he and Trump would make sure that law enforcement has the resources and the tools needed to “restore law and order” across the country. He said people should stop seizing on police-involved shootings to accuse law enforcement of implicit bias or institutional racism, because doing so is demeaning to law enforcement officers. Harkening back to his time as Governor of Indiana, Pence spoke about his efforts to implement criminal justice reform and called on Americans to recognize and correct errors in the system that do reflect an institutional bias in criminal justice. Nevertheless, he stressed that people must understand that law enforcement is a force for good — not a force for racism or division.

Legislative Action Update

Prior to adjourning until November 14, Congress took action on a number of legislative matters. Just two days before funding for the federal government was set to expire on September 30, Congress passed a continuing resolution (CR) that will fund the government through December 9. The legislation maintains funding for federal programs at the previous year’s levels, and provides $1.1 billion to combat the Zika virus and $500 million in emergency flood relief funding.

The House also voted unanimously to amend and approve a Senate-passed bill that would update the Federal Communications Act for the first time since 1996. The legislation, which will modernize America’s telecommunication systems, passed the Senate in June. Among the provisions added in the House version of the bill is the Kari’s Law Act, which PORAC advocated for in meetings with congressional offices during the September fly-in.

The bill was inspired 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.

To prevent such situations from occurring again, the Kari’s Law Act would require multi-line telephone systems (such as hotel and office telephone systems) to have a configuration that permits users to directly initiate a call to 9-1-1 without dialing any additional digit, code, prefix or postfix. Before a final version of the Senate and House bills will be sent to the President for signature, the two chambers will have to convene a conference committee to reconcile the differences between the two versions, although the timing of such negotiations remains unclear.

California Agencies Awarded DOJ Grants

Various law enforcement agencies and entities in California have been awarded a number of significant Department of Justice (DOJ) grants designed to improve criminal justice and public safety.

The California Department of Justice has been awarded two grants from the DOJ’s Office of Community Oriented Policing Services (COPS) to address the production and distribution of heroin and other opioids as well as methamphetamine use. The $1.277 million grant from the COPS Anti-Heroin Task Force Program will support investigations of illicit activities related to the distribution of heroin and unlawful distribution of prescriptive opioids. The other $1.447 million grant was awarded by the COPS Anti-Methamphetamine Program and is designed to assist agencies that seize methamphetamine precursor chemicals, finished methamphetamine and drug laboratories.

In addition to the two grants described above, the State of California was awarded $866,892 through the Office of Justice Program’s Residential Substance Abuse Treatment for State Prisoners Program. The funding will assist local, state and tribal government agencies in improving evidence-based substance abuse treatment programs for incarcerated inmates, as well as to prepare individuals who have been involved with the criminal justice system for reintegration into local communities. California is also one of 32 states set to receive a total of $20 million through the DOJ’s Body-Worn Camera Policy and Implementation Program. The awards will help law enforcement organizations implement body-worn camera policies in order to improve the quality of community-based policing.

Finally, Scripps College in Claremont, California, has been awarded a grant from the DOJ’s Office on Violence Against Women. The grant is one of 61 awards totaling $25 million that have been given to educational institutions and advocacy organizations across the country to help student victims of sexual assault, domestic assault, dating violence and stalking. The awards will make possible a range of services, including specialized training for campus law enforcement, health care providers, university housing personnel and other first responders.