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 John Cornyn (R-Tex.), 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. 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.

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 sheriff’s 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 any judge 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.

The bill also uses the word kill, not murder, or a phrase like “feloniously kill” or “intentionally kill.” That’s likely the result of sloppy drafting, but at least in theory, it could allow federal prosecutors to bring charges when someone unintentionally causes the death of a police officer, such as in a car accident, or due to some other act of negligence.

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.

I spoke with a couple of attorneys who take such cases to get their take on the bill. “The whole purpose of section 1988 [the federal law that reimburses attorneys who successfully bring civil rights cases] was to encourage lawyers to take the small cases — the illegal pat-down, the false arrest — the ones that don’t promise a big payout,” says Joel Berger, a civil rights attorney in New York who has handled police abuse cases for more than 40 years. “You need people to take those cases to keep the government accountable.”

Robert Phillips, one of just a handful of attorneys who take police abuse cases in South Carolina, agrees. “This bill would effectively end all police liability,” Phillips says. “It would end my practice. It would end the practices of the other attorneys who work in this area. It would severely restrict access to the courts. It would basically make it impossible for victims of police abuse to sue anytime, anywhere.”

Another possible consequence of the bill is that true victims of police abuse could be more likely to face unmerited criminal charges. Police and prosecutors are already accused of bringing unwarranted charges in abuse cases, then leveraging those charges — agreeing to drop them in exchange for a promise from the victim not to sue. Because the police would need to show only some connection to felony or violent acts by a preponderance of the evidence, merely filing a felony charge would likely dissuade most attorneys from taking a victim’s case. “There’s a term in policing called box-carring,” Phillips says. “It means you pile all the charges you can on somebody so you can force them to take a plea. That’s what you’re going to see here. Imagine you’re a protester who gets beaten up the cops. The local police will hit you with all the usual charges of resisting police, rioting and assault. But now you could also be looking at a separate federal trial for assault. That’s thousands of dollars more in legal fees — and a virtual guarantee against you ever filling a lawsuit.”

“It’s an outrageous proposal, says Berger.  “You’re going to insulate police officers from any civil liability. You’re turning killing of police officers into a federal crime, regardless of the circumstances. You’re deterring lawyers from taking these cases. It’s just bad news.”

The provision limiting damages could be particularly potent in cases where the victim doesn’t survive. “They only need to show that you ‘more likely than not’ committed a felony,” Phillips says. “If four police officers say you reached for a cop’s gun, that’s a felony. It’s rare that you’re going to win that argument, anyway. But now imagine you can’t even make it, because they shot you dead. Your family will get nothing. Maybe you get them to pay for a funeral. Nothing more.”

Even the general principle behind the bill is misguided. There just isn’t much evidence to support the notion that cops are getting sued left and right over petty infractions. Again, it’s already extremely difficult to sue a police officer.

“We have seen a significant increase in these lawsuits in New York,” says Berger. “But that isn’t because these people are greedy or money-hungry. It’s because they’re unsatisfied with internal discipline and with the civilian review board. They’re not asking for huge sums, they’re just asking for accountability.”

It’s true that some large cities have paid out hefty totals to settle police abuse cases in recent years. But those figures tend to be driven by a few huge awards or settlements in cases that generated a lot of media attention. Outside large urban centers, it’s harder to get that sort of attention, particularly if there’s no viral video. Qualified immunity prevents most such cases from ever getting before a jury. Get over that hurdle, and you’re faced with another challenge — juries tend to be reluctant to rule against police officers. Even in those rare instances that cops are found liable and a jury awards significant damages, the officers themselves are almost always indemnified by the city or state that employs them. There are vanishingly few cases in which a police officer was forced to personally pay a dime as the result of a judgment or settlement in a civil rights cases. The thinking behind these liability laws is that if a city is forced to pay out enough to victims, elected officials will eventually face political pressure to hold police leadership accountable — to change use-of-force policies, improve training or recruit better officers. Or perhaps the pressure could come from municipal insurers. It isn’t the strongest incentive, but it’s just about the only one left. And this bill would go a long way toward removing it.

“With new legislation, we usually pay more attention to the bills that take smaller bites out of something like access to the courts,” Phillips says. “Those are the ones more likely to pass. The crazier bills usually don’t have a chance. Any other time, I’d dismiss a bill this egregious as just too nutty to ever get a vote. But we’re in the Trump era. So there’s a lot more reason to worry.”

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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