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Congress Stands With the Blue, Against the Constitution

The lopsided House vote for treating assaults on cops as federal crimes is a bipartisan portrait in cowardice.

Last week the House of Representatives, by a margin of more than 10 to 1, approved a completely gratuitous, blatantly unconstitutional bill that would make assaulting a police officer a federal crime. The lopsided vote was a bipartisan portrait in cowardice that vividly showed how readily politicians forsake their oaths of office to keep their hold on power.

The Protect and Serve Act prescribes a prison sentence of up to 10 years for anyone who "knowingly assaults a law enforcement officer," thereby "causing serious bodily injury," or "attempts to do so." Such conduct is, of course, already illegal in all 50 states, and there is no reason to think local law enforcement agencies are reluctant to arrest and prosecute people guilty of it.

Nor does the problem addressed by the bill seem to be on the rise, notwithstanding all the overheated talk of a "war on cops." The number of law enforcement officers who are feloniously killed each year is small and volatile, but according to the FBI it dropped by 30 percent last year, and the average for the last 15 years (51) is lower than the average for the previous 15 (65).

In any event, the Constitution does not give Congress the authority to fight local crime, and the interstate angles mentioned by the bill are so oblique that they could justify federal prosecution of pretty much any assault (or attempted assault) on a cop. If the alleged assailant drove on an interstate highway or used a weapon produced in another state, for instance, that would be enough to make a federal case out of it.

"A tenuous connection to economic activity cannot transform a criminal law that has nothing to do with economic activity—and that is explicitly for the purpose of public safety—into a regulation of interstate commerce," the House Liberty Caucus noted before the vote. "If it could, the Commerce Clause would destroy the Constitution's design for a very limited federal role in criminal law enforcement, covering only a few crimes that are clearly federal in nature."

The Protect and Serve Act explicitly allows federal prosecution of someone who is acquitted in state court, or who is convicted but receives a penalty the Justice Department deems too light. According to the Supreme Court's "dual sovereignty" doctrine, such serial prosecutions do not violate the Fifth Amendment's ban on double jeopardy, but they clearly offend the principle of fairness embodied in that rule.

These issues should be familiar to anyone who has followed the debate over federal prosecution of hate crimes, which occur when the victim is picked "because of" his "actual or perceived" membership in a protected group. The Senate version of the Protect and Serve Act takes that analogy and runs with it, targeting assaults and attempted assaults committed "because of the actual or perceived status of the [victim] as a law enforcement officer."

Under that bill, someone who takes a swing at a guy he mistakenly thinks is a cop has committed a federal felony punishable by up to 10 years in prison—even if he misses. This approach, which takes a page from the "Blue Lives Matter" laws that at least four states have adopted in recent years, effectively punishes people not just for their conduct but for their anti-cop attitudes, just as hate crime statutes effectively punish people for their bigoted beliefs.

In addition to these problems, the possibility of federal felony charges based on garden-variety tussles between cops and people they detain, on top of state charges for assault and resisting arrest, gives police more leeway to abuse their powers. The Protect and Serve Act would protect and serve cops who hassle innocent people or use excessive force, giving them a new legal threat to use against their victims.

With 35 brave exceptions, these objections did not faze the House, where "Defend the Constitution" was no match for "Stand With the Blue."

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  • Jay Dubya||

    This bill is quite possibly the most contemptible assault on liberty to come from the current Congress. Of course such a statement is at best provisional in a government that is steeped in truly historic levels of corruption. Outside of lining their own pockets, this Congress is capable only of degrading the last, sad vestiges of the rule of law left stuck to the bowl after the TLC of prior leaders of men.
    The hundred-odd men & women responsible for this Blue Shield abomination can show the LEO unions in their districts that so long as the votes keep coming, their loyal creature will make sure that no matter how many dogs or children they kill, its going to remain business as usual in the Land of the Free, w/ 6 figure pensions for every hero who risked their life every day to extort money at gunpoint for having the wrong sticker on their license plate & putting teenagers in animal cages for getting high.
    Its worth noting that this bill passed the House with overwhelming bipartisan support as well. Thanks to laws like this we can expect to win the War on Drugs & end mass shootings any day now.

  • Qsl||

    I think it is important to put this into context vis-a-vis black lives matter, and the blowback from the more fringe elements of that. Given the circumstances, this was hardly unexpected, if unfortunate.

    Demanding protection from the state, from the state, with little more than twitter outrage mobs to make your case isn't the way to approach judicial reform.

    Although I am interested in how this will be spun to blame the racist Liberty Caucus, even if indirectly, as no old white men could possibly have the interest of the black community at heart

  • AlgerHiss||

    It is not hyperbole to say this legislation is absolutely frightening and suicidal to our basic liberty. To think it's more egregious to assault some cop vs my wife is simply outrageous. That cop's life is NOT more important that hers.

    American copping, all all levels, is completely out of control. You will trust these people at your peril ESPECIALLY if you've done nothing wrong.

    Remember: When dealing with any cop, for any reason, you're dealing with a rattlesnake that will strike for any reason at all. Every one of them is a hand grenade with the pin pulled.

  • Rossami||

    Just a quibble about your math. This bill was passed out of the House on a vote of 382 to 35. It has 2 co-sponsors in the Senate and is expected to pass on the same lopsided basis. That's lots more than a "hundred-odd men and women responsible for this abomination".

  • SQRLSY One||

    I have read that oxygen and nitrogen twin-atom molecules are so ultra-tiny, and the Earth's atmosphere mixes so thoroughly, that with every breath we take, we are GUARANTEED to breathe at least ONE molecule that has previously been breathed by Hitler, or Jesus, or Genghis Khan, or Santa Claus, put in yer fave here...

    Well, this being true, then obviously there are molecules from all 50 states all in us and around us all day, so therefor the Interstate Commerce Clause can be used to regulate every breath that you take! Is the Love of your Government Almighty breath-taking, or WHAT!?!??!

  • LynchPin1477||

    Will the owners of the local Krispy Kreme be liable when a cop has a heart attack on the job?

  • Jerryskids||

    Flipped on FOX News this morning and caught just the last few seconds of a round table discussion of "Cops Under Siege!". I didn't catch any of the discussion but a chyron of "28 cops killed so far this year" suggests that they're in faux panic mode over there. A quick google took me to a site that showed 24 cops killed at this point last year, so maybe not such a big deal as FOX is making it out to be. Of course, I try to keep in mind FOX has a target audience of 1. And that one is a badge-licker who approves of torture and a lot more.

  • Rev. Arthur L. Kirkland||

    That badge-licking takes a break as his friends and family members are arrested, served with search warrants, and convicted.

    The only ones he'll never turn against are Ivanka (his crush), Hope Hicks (his back-up crush) and Putin (who would have him killed).

  • Mickey Rat||

    A "do something" law for something that did not need to be done. It is grandstanding and a federal intrusion into lical matters it should have no authority over. As well as an acceptance of the noxious concept of "hate crime". A crime should be an intentional or reckless unjustified harm against another, the motivation outside of that is irrelevant.

  • loveconstitution1789||

    This is virtue signalling to law enforcement to continue doing what they are doing. Additionally, its a plan to get police to be on politician's side as The People start to fight back with corrupt politicians.

    This is how you buy loyalty.

  • Henry||

    Don't think of it as unconstitutional virtue signaling. Think of it as pre-emptive preparation for the upcoming civil war.

  • Inigo Montoya||

    First, a huge deficit budget that went a trillion in the red, then the ridiculous and contemptible FOSTA, and now this shit!

    Can't we go back to the days of a deadlocked, do-nothing Congress?

  • BillyG||

    "A tenuous connection to economic activity cannot transform a criminal law that has nothing to do with economic activity—and that is explicitly for the purpose of public safety—into a regulation of interstate commerce,"

    Unfortunately, SCOTUS has previously green-lighted these laws. A cop was recently indigted in federal court for statutory rape, because he used a condom produced in a different state.

  • Dan S.||

    From the linked article:

    There were other aspects of Whitley's actions that hit the "federal nexus," including his use of a cellphone to take compromising pictures of two girls and using money to pay them, prosecutors said.

    Using money to pay them?? Now let's see, money is printed in Washington, D.C., isn't it? So does that make all cash transactions in any state "interstate commerce" because the money itself crossed a state line at some point? That would truly remove any remaining meaning from the notion of "interstate" commerce. And of course, the feds have jurisdiction over occurrences in Washington, D.C. under a different clause. But hey, is commerce between D.C. and Maryland or Virginia actually commerce "among the States"?

  • DenverJ||

    We have a mint here in Denver, and I only use money printed locally.

  • Cyto||

    Yeah, I had copied that quote as well. I was going to recommend filing that one under "that ship has sailed".

  • Henry||

    Good thing he didn't use a Chinese condom, or he might have ended up in the Hague being tried for war crimes.

  • No Yards Penalty||

    Fuck da poh-leece.

  • TxJack 112||

    There are many instances where I would agree laws such as this are unnecessary but this is not one for a number of reasons. First, we have a growing problem in this country with police being targeted for assassination. We have seen ambush after ambush resulting in police being killed. Second, most states make killing a police officer a capital offense, yet even this has not curtailed the rise in these types of killings. Only last week, a Baltimore officer was run over and killed by a 16 yr. old suspect. Killing a police officer is a special type of crime for one reason alone. Anyone who would kill a police officer, knowing the severity of the crime, would not hesitate to kill an ordinary person and therefore is a super predator who must be treated different. In addition, the Obama administration so poisoned the atmosphere between police and the public that too often now, juries are terrified to acquit officers guilty of no crime or convict those who kill them because of fear that there will be rioting and other civil disobedience that destroys their city.

  • Eidde||

    "most states make killing a police officer a capital offense, yet even this has not curtailed the rise in these types of killings"

    But a new federal federal law banning what state law already bans will certainly curtail assaults on cops, right?

  • DenverJ||

    Bullfuckingshit. The article gets into the stats, and says there is no increase in assaults on cops. And juries will bend over backwards to exonerate cops, even those caught on video shooting people in the back. Regardless, even if your comment wasn't completely false, this law is still unconstitutional. Now, take law enforcement's dick out of your mouth.

  • Cynical Asshole||

    Does cop dick taste good?

  • marshaul||

    TxJack is engaging in some seriously high-level meta-trolling here. Or else he's completely retarded.

  • Rossami||

    re: "First, we have a growing problem in this country with police being targeted for assassination."

    Asserted without evidence.

    re: "We have seen ambush after ambush resulting in police being killed."

    Again, asserted without evidence but also contradicted by the statistics on police line-of-duty deaths. The vast majority of police line-of-duty deaths are traffic-related. If you want to save police lives, maybe don't put them in dark uniforms at night in situations where they are regularly standing at the edge of a busy highway. Maybe we can't do a lot about the busy highways or dark nights but the dark uniforms are just dumb. Statistics of police deaths resulting from gunshots (excluding self-inflicted), knives or other weapons are actually dropping, not rising. (Though it should be noted that the number is so small that the statistical significance of the trend is highly questionable.)

    re: "Second, most states make killing a police officer a capital offense, yet even this has not curtailed the rise in these types of killings."

    Yet again, asserted without evidence and in contradiction to the actual evidence that there is in fact no "rise in these types of killings".

  • TSTB||

    The ship is sinking.
    There's a leak, there's a leak in the boiler room.
    Who are the ones we kept in charge?
    Killer's thieves and lawyers.
    God's away on business...

    or something like that...sez Tom Waits.

  • Cynical Asshole||

    Such conduct is, of course, already illegal in all 50 states, and there is no reason to think local law enforcement agencies are reluctant to arrest and prosecute people guilty of it.

    Or even people who aren't guilty of it.

  • Cynical Asshole||

    "A tenuous connection to economic activity cannot transform a criminal law that has nothing to do with economic activity—and that is explicitly for the purpose of public safety—into a regulation of interstate commerce," the House Liberty Caucus noted before the vote. "If it could, the Commerce Clause would destroy the Constitution's design for a very limited federal role in criminal law enforcement...

    Is there anything the Commerce Clause can't do? It's pretty much the statist's "get out of following the constitution free card."

  • Drake||

    If only somebody could've known that these fucking thought crime laws would be expanded to mean, well.. anything you want it to! Not that it wasn't bad enough to start with, but it just kept growing. Now anyone can just use and apply it to ANYTHING they fucking want to, without limits! All you gotta do is designate someone an "oppressed group" and voila, instant hate crime!


    Now, even copsuckers are getting in on the act, to defend their persecuted heroes in blue. Fuck, who could've seen THAT coming?!?! Well, I guess that's the beauty of thought crime, right? THANKS, GUYS!!!

  • Silverleaf||

    Until the SC reverses direction and takes the seemingly unlimited elastic out of the Commerce Clause, this kind of crap will continue and make state legislatures quaint anachronisms.

  • NoVaNick||

    Its not a big step from making assault on a cop a federal crime to federalizing cops who can grab your guns. I wonder how many of the congresscritters who voted for this bill realized this? Then again, there seems to be a lot of overlap between cop fetishists and gun fetishists.

  • Henry||

    At the point where copicide becomes the best of all remaining options to a rational adult, I don't think the actor is going to much care which courthouse he's going to be prosecuted in.

  • crufus||

    Since most Senators are not up for re-election, maybe the Senate will do something heroic with this bill, like send it to a committee from which it will never emerge.

  • Sevo||

    "The Protect and Serve Act..."

    Dunno what all the gassing is about; this obviously has nothing to do with cops. Not one thing.

  • tazmo8448||

    Well this type legislation leaves all sorts of loop holes for misuse.

  • Stosh||

    Another victim class added to the "Hate Crimes" protected groups and we're supposed to be outraged?!? The slippery slope just got oiled up a bit....

  • Shoreline1||

    "Protect and Serve", is referencing protecting and serving our government. Remember in the old days when the citizenry would revolt in response to tyrannical and authoritarian government?

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