Criminal justice reform, and the militarization of the police, has been a hot-button issue for the last few years; groups like “Black Lives Matters” have been calling for “criminal justice reform” to become a more important issue in Washington DC. While Senators like Rand Paul and Cory Booker are crossing party lines to introduce bi-partisan legislation, others are looking to strengthen police power.
On May 16th Senator John Cornyn, Republican Senator from Texas, introduced the “Back the Blue Act of 2017,” which was co-sponsored by 15 other Republican Senators, while his colleague Representative Ted Poe, also a Texas Republican, introduced identical legislation in the House of Representatives. The bill grossly expands police power nationwide, and, as South Carolina attorney Robert Phillips states “essentially ends all police liability” in this country. But it does so much more than that.
Sections 2-4 make it a federal crime to kill, conspire to kill, attempt to kill, or assault any law enforcement officer, judge, or first responder whose agency receives federal funding. State and local law enforcement officials, who receive a large portion of their funding from the federal government, are covered by this legislation.
What Does that Mean?
Currently, crimes against law enforcement officials are covered by state and local law. This means that if you kill a cop in Philadelphia, you are subject to whatever crimes the state of Pennsylvania can charge you with. Currently, the state of Pennsylvania has the death penalty, so killing a cop can be a capital offense, however, Larry Krasner, a Philadelphia Civil Rights Attorney running for District Attorney, has stated he will never seek the death penalty. So let’s say a man kills a police officer in Philadelphia, new DA Larry Krasner has refused to seek the death penalty. If this angered the Attorney General’s office, they can now seek to add federal crimes against the defendant and seek the death penalty for themselves.
More importantly, however, this means that a defendant could theoretically be in a situation where he faces “double jeopardy.”
Take Henry Magee, for example. On December 19th, 2013, Magee shot and killed a police officer in Texas as the officer served a “no-knock” warrant. On 2/7/2014 a Texas grand jury agreed with Magee’s lawyer, who said Magee thought he was being robbed and acted in self-defense. In this scenario, although Henry Magee was acquitted of a crime, a “law and order” type US Attorney General could then re-file federal charges against Magee, making him stand trial again, in fact, the bill actually encourages federal action, in this scenario;
“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.”
And that’s just the tip of the iceberg. Sections 2-4 also make it a federal offense to “assault” a law enforcement officer. That means, if you and your buddies are out at the bar one night, and an officer tries to arrest you for being drunk in public, and you knock him down, you could face federal prosecution where the mandatory minimum sentence you can receive would be two years.
Section 5 makes it even more difficult to recover damages from law enforcement officials and agencies for violating your rights.
As it currently stands, it is already incredibly difficult to recover damages from law enforcement officials due to something called “qualified immunity.” Qualified immunity says that if a law enforcement officer violates your civil rights, than you can sue them, but that power has been limited by the Supreme Court. SCOTUS said you can only sue law enforcement if what he did violated a “clearly established legal right” which is incredibly vague, and it has to be really, really obvious. In Malley v. Briggs the court determined that law enforcement was not liable in “all but the plainly incompetent or those who knowingly violate the law.”
So if it’s already difficult to sue the police, how can section 5 of this legislation make it worse?
“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).”
This means that even if you could win your civil case against a police officer, they are only liable for “out of pocket” expenses. This means that if you die during an arrest, those responsible only have to cover your funeral, no matter how unjust the killing was.
The “Back the Blue Act,” if it passes and is signed into law, will grossly undermine a State’s ability to maintain their sovereignty, while absolving police of almost all accountability for their actions. If passed, it is exceptionally likely that victims of police brutality will never see appropriate action taken against the perpetrators, and it will create federal criminals out of thousands of people.