
From [WashPost] and [HERE] Keeping with the Trump administration's law-and-order rhetoric, Republicans in the House and Senate recently introduced a bill they're calling the Back the Blue Act of 2017. The Senate bill was introduced by racist suspect, John Cornyn (R-Tex.) (in photo below), and is co-sponsored by 15 senators, all Republicans. The identical House bill was introduced by Ted Poe (R-Tex.), and includes five co-sponsors, also all Republicans, all white. The bill would create new federal crimes, impose federal police over the will of local officials and voters and shield police officers from virtually any civil liability, even in cases of egregious misconduct.
This bill is in the first stage of the legislative process. It was introduced into Congress on May 16, 2017. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole. It has a 1% chance of being enacted according to Skopos Labs (details). [MORE]
It proposes to significantly weaken a key rights protection statute, Section 1983 of the US Code, by limiting the ability of victims of illegal and unjustified police violence to receive compensation for harm. Specifically, the bill would limit liability in situations in which the victim had had some involvement with a felony or “crime of violence,” including property damage. Police are already protected from liability if the use of force is justified. Section 1983 lawsuits have been a primary way for ordinary people to hold police and government officials answerable for violations of their rights. They have also provided an important incentive for police departments to prevent abuses by their officers.
Let's look first at the new federal crimes. The bill would create new federal crimes for killing, attempting to kill or conspiring to kill a state or local law enforcement officer who works for a police agency that receives federal funding. Because nearly all police agencies receive some sort of federal funding, including most local sheriffs departments and town police, the bill basically makes it a federal crime to kill, attempt to kill or conspire to kill any police officer (as well as anyjudge or first responder). The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they've exhausted their appeals.
The legislation would make also it a federal crime to assault any law enforcement officer (again, using the hook of federal funding). An assault resulting in bodily harm would bring a federal mandatory minimum of between two and 10 years in prison, depending on the severity of any injuries to the officer, plus an additional 20-year mandatory minimum if a dangerous weapon was used "during and in relation to the assault." An assault not resulting in bodily harm would carry a sentence of up to a year in prison.
While Republicans are fond of touting principles like federalism and local control over criminal-justice policy when it comes to, say, federal oversight of abusive police, this bill would let a Trump-appointed district attorney overrule local officials if he or she didn't like the way they were handling a case involving an assault or killing of a cop. For example, a number of jurisdictions across the country have recently elected district attorneys who promise a more reform-oriented approach to law enforcement. In a few places, such as Philadelphia, Chicago and Houston, the new DAs were elected specifically after campaigning on policing issues, or in response to a past incumbent's inattention to police abuse. If this bill passes, a U.S. attorney more sympathetic to law enforcement could thwart those efforts by, for example, charging a high-profile victim of police abuse with the new federal crime of assaulting a police officer. It wouldn't be difficult. We've seen plenty of video now where a clear victim of police brutality was initially arrested and charged with battering one of the officers who beat him.
A federal prosecutor might also pursue federal charges against someone like Henry Magee, the Texas man who was cleared by a grand jury after killing a police officer during a marijuana raid on his home. Magee said he didn't know the raiding officers were cops, and fired his gun in self-defense. Or against Ray Rosas, who was acquitted by a jury after shooting at three police officers who raided his home in search of drugs.
In fact, the bill explicitly authorizes federal prosecutions in cases in which "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence" or "a prosecution by the United States is in the public interest and necessary to secure substantial justice." Which is to say that the bill leaves such decisions wholly up to the discretion of federal prosecutors, regardless of the will of the officials or public at the state and local level. In Philadelphia, longtime civil rights attorney Larry Krasner just overwhelmingly won the Democratic primary for DA, and is heavily favored to win the general election. He has vowed to stop seeking the death penalty in the city. If he's elected, a federal prosecutor could in theory re-try any case involving the killing of a police officer to essentially override Krasner and win a death sentence. Regardless of how one feels about the death penalty, doing so would be contrary to the will of the voters and local officials, and an abdication of those principles of federalism and local control that Republicans claim to hold dear.
But perhaps the most disturbing part of the bill is the new restrictions it puts on suing police officers for constitutional violations. As we've discussed here several times before, it's already extremely difficult to even get in front of a jury with a claim against law enforcement, much less win an award. Police officers are protected by qualified immunity, which requires you to show that not only were your rights violated but also a reasonable police officer should have known that the actions in question were a violation of the Constitution. Under this bill, even if you can show all of that, if the police can show that the violation and resulting injuries were "incurred in the course of, or as a result of, or ... related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence ... (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense)," then the officers are liable only for out-of-pocket expenses. What's more, the bill would bar plaintiffs from recovering attorneys fees in such cases.
This means that if the police raid your home with a search warrant for pot and shoot you dead, even if your family can show that the shooting was unlawful, the police would be liable only for something like funeral expenses if they could show that "more likely than not," you had sold some pot, or at some point possessed a large enough quantity of the drug to merit a felony charge. In some jurisdictions, merely resisting arrest is a felony. In theory, this could mean that under a scenario in which the police falsely arrest you, you resist, and they then severely beat you, if they could show that the beating was the result of your resisting, not the false arrest, you could be barred from suing for anything other than the cost of treating your injuries. If the resisting charge could be filed as an assault, that's already a felony in most jurisdictions, and even where it isn't, under this bill it would become a federal felony.
If this bill passes, it would become nearly impossible to sue the police in all but the most egregious instances of abuse, and even then, only in cases where the victim is basically beyond reproach. These sorts of lawsuit are incredibly expensive. The relatively rare large award is the incentive for civil rights attorneys to take on these cases in the first place and can often be what funds their ability to take on cases less likely to pay out large damages. Removing the ability to collect compensatory or punitive damages, or even recover attorneys fees, basically means it would become even more difficult for victims of police abuse to find representation. If there's even the slightest chance that the police could convince a jury that the plaintiff engaged in conduct that was even "related" to a felony or violent crime, there's no incentive for them to take the case.
“This bill would not protect police officers from danger,” said John Raphling, senior criminal justice researcher at Human Rights Watch. “Instead, it protects police departments from accountability, and removes important incentives for those departments to monitor themselves and improve the quality of their policing.”
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