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The 'Protect and Serve Act' Is both Unnecessary and an Assault on Federalism

There is no justification for a proposed law that would make attacks on police officers a federal crime.

A Blue Lives Matter billboard.A Blue Lives Matter billboard.

Both the House and the Senate are now considering versions of the "Protect and Serve Act," which would make it a federal crime to assault a police officer. The proposed legislation is both unnecessary and an attack on constitutional federalism. Monique Judge of the Root has a helpful description of the two versions of the bill, one of which is modeled on federal hate crimes laws criminalizing violence motivated by hostility to various minority groups:

The House version (pdf) of the bill makes it a crime to knowingly cause or attempt to cause "serious bodily injury to a law enforcement officer." The crime is punishable by 10 years in prison. If the crime results in the death of a law enforcement officer, or the crime involves kidnapping or the attempt to kidnap or kill a law enforcement officer, then the sentence can be up to life in prison.

The Senate version was introduced by Sens. Orrin Hatch (R-Utah) and Heidi Heitkamp (D-N.D.). Using language that mirrors the language used in hate crime laws aimed at protecting marginalized groups, the bill would make it a federal hate crime "to knowingly cause bodily injury to any person, or attempt to do so, because of the actual or perceived status of the person as a law enforcement officer."

Both versions are an unconstitutional attack on federalism. In United States v. Morrison (2000), the Supreme Court ruled that the Constitution does not give the federal government a general "police power" authorizing it to punish violent crime throughout the nation. As the Court put it, "we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Morrison struck down a provision of the Violence Against Women Act (VAWA) that would have given victims of gender-motivated violence the right to sue their assailants in federal court. The same logic that doomed that law also applies to both the House and Senate version of the Protect and Serve Act. Both seek to use federal law to criminalize local violent crime, even if in this case directed at police officers rather than victims of gender bias.

Even aside from precedent, anyone who cares about enforcing constitutional limits on federal power has good reason to oppose the Protect and Serve Act. The most plausible source of constitutional authority for the act is Congress' power to regulate interstate commerce, under the Commerce Clause. It could be argued that Congress can criminalize violence against police officers, because such violence has an effect on interstate commerce, especially in the aggregate. But if such minor and indirect effects are enough to authorize making something a federal crime, the same logic can justify federal regulation of almost any activity. Virtually any significant activity of any kind has some substantial impact on interstate commerce. In Morrison, the Supreme Court rejected the federal government's Commerce Clause argument because it "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part."

Morrison was partly undermined by the Court's terrible 2005 decision in Gonzales v. Raich. But even Raich did not reverse Morrison's holding with respect to federal power over local violence.

The Senate version of the Protect and Serve Act could also be potentially be justified on the same types of theories as those put forward to defend federal hate crimes laws. I addressed this issue in my critique of the 2016 Blue Lives Matter Act, an earlier proposal similar to the current Senate bill:

Lower courts have upheld some parts of current federal hate crime laws targeting violence on the basis of race, gender, religion, and similar classifications under an expansive interpretation of Congress' powers under the Thirteenth Amendment, which is often understood to target a wide range of "badges and incidents" of slavery, as well as actual slavery itself. In my view, this rationale for current federal hate crimes laws is extremely dubious. But even if it is sound, it clearly does not apply to the Blue Lives Matter Act [and the Protect and Serve Act]. Even a very expansive view of congressional power under the Thirteenth Amendment cannot cover this case. No one can seriously argue that violence against police is a badge or incident of slavery, or that law enforcement officers are a historically oppressed minority group.

For more on the Thirteenth Amendment issues raised by this kind of legislation, see this analysis of the Blue Lives Matter Act written by my wife Alison Somin, who is a special assistant/counsel at the US Commission on Civil Rights.

In addition to being unconstitutional, the Protect and Serve Act is also unnecessary. As Radley Balko explains, violence against police officers remains at historically low levels, and there is no reason to think that state and local authorities do not take such crime seriously. Police have obvious incentives to aggressively investigate crimes targeting their fellow officers. The same goes for prosecutors, who need to maintain good relations with the police in order to do their own jobs effectively. If anything, we have far more reason to fear that police and prosecutors will fail to properly address crimes committed by police than crimes committed against them.

Some states already have laws imposing additional penalties for crimes targeting on-duty police. Even in those that do not, there is every reason to expect that crimes against police will be aggressively investigated and prosecuted. As Balko notes, police are far from being a helpless minority group that requires federal intervention to save them from the indifference or hostility of state and local governments:

The conventional thinking on hate crimes is that, when someone kills or assaults or commits a property crime like vandalism in such a way that targets the victim because they are a member of a vulnerable community, all members of that community are affected. The problem with adding police officers (or the military — another group some Republicans have tried to add) is that they are about as far removed from a vulnerable group as one can imagine. They carry guns and other weapons. They have the power to detain, arrest, and kill. And they literally have the entire government at their backs. That's who they represent.

Balko also points out some ways in which the House version of the Protect and Serve Act could be abused by law enforcement:

What harm could come of this bill? An assault on a police officer charge is often used a cudgel — it's a way of dissuading legitimate victims of police brutality from filing complaints. If such an assault charge could soon come with an additional federal charge punishable by up to 10 years in prison, that cudgel grows by about 10 sizes. It gets awfully persuasive.

Or think about a demonstration where police push into a protest line, resulting in pushing and shoving. It would now get pretty easy to start handing out assault charges against the protesters. A politically ambitious U.S. attorney who wants to, say, shut down Black Lives Matter could get a lot of mileage out of this bill.

To a greater extent than the Blue Lives Matter Act (sponsored by Republican Rep. Ken Buck), the Protect and Serve Act enjoys substantial bipartisan support. Both Democrats and Republicans see it as a way of burnishing their pro-police credentials ahead of the 2018 election. For the Trump-era GOP, this is another example of their egregious "fair weather federalism," which seems to crop up repeatedly on issues relating to immigration and criminal law. It isn't a good look for the bills' Democratic supporters either, at a time when their party is using constitutional federalism to battle Trump on a variety of issues. Both sides of the political spectrum would do well to curb their appetite for federal overreach.

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  • TwelveInchPianist||

    At last, the tender fists of our brave boys in blue will be free from assault by the faces of the black menace.

  • MatthewSlyfield||

    The criminal thug tried to beat the soles of my feat with his face.

  • Rev. Arthur L. Kirkland||

    As much as I enjoy these deftly expressed sentiments, I might accept this legislation if it were amended to include abolition of qualified immunity.

  • mad_kalak||

    Amen to that.

  • Rev. Arthur L. Kirkland||

    Well, they don't call me "Reverend" for nothing.

  • Curly4||

    I also want to protect our brave boys in blue also but I do not want that they should be protected when they deliberately do something that causes unnecessary trouble. Change of police tactics in the apprehension of suspects will help a lot to change that. When an unarmed person is shot just because the officer says that he thought the suspect was armed is inadequate defense now days with so many cameras present. Or when an officer stops a driver and the driver states that he is a licensed conceal and carry and then is shot without cause is going to far. If the police are so afraid then they get out of the police and do something that is safer.
    Then if the officers need this new protection then additional protection can be passed.

  • TwelveInchPianist||

    At last, the tender fists of our boys in blue will be free from assault by the faces of the black menace.

  • PoxOnBothYourHouses||

    Since "serious bodily harm" is not ill defined, we may see a rash of Federal prosecutions for what would once (like now!) have been something like "resisting arrest." Throw one punch at a cop who is shooting your dog, and it's ten years.*

    Not just hypothetical. Changes in policing led to dramatic increases in "aggravated assault" charges (from the 1970's through the 1990's) that never showed up at all in data from the National Crime Victimization Surveys. The argument among criminologist is that acts that would never have been treated as criminal were upgraded to assaults, and simple assaults were upgraded to aggravated assaults.

    * (That on top of the fact that the officer who tasered you 27 times will get qualified immunity, since the courts have never ruled on exactly 27 zaps).

  • PoxOnBothYourHouses||

    I meant to say that serious bodily harm /IS/ ill-defined. Apologies all around.

  • MatthewSlyfield||

    Then there's the guy who got beaten half to death in an interrogation room by half a dozen cops, then to add insult to injury, they charged him with destruction of police property for bleeding on their uniforms.

  • Eidde||

    "the Protect and Serve Act enjoys substantial bipartisan support'

    Not a good sign. It's almost like the only time these parties aren't fighting each other is when they're joining against their common enemy, the Constitution.

    The Constitution *does* specify a case where the feds have to reinforce the states - if a state faces invasion or "domestic Violence," the federal government must protect the states (in the case of "domestic Violence," the state has to request the aid). I think this means military defense against foreign foes and insurrections, not prosecution of invaders and rebels (though such prosecution might be based on other constitutional clauses, like the treason clause).

    If the founding generation understood the constitution as allowing (literal) police regulations, they would have said so.

  • Curly4||

    New laws are not needed until all of the current laws are being fully enforced.

  • MatthewSlyfield||

    No, about half the current laws ought to be repealed.

    Then it wouldn't be so hard to fully enforce them all.

  • Dan S.||

    "domestic Violence" - well, they certainly weren't talking about fights between husbands and wives.

  • Eidde||

    "Look, we passed laws against murder and assault!"

    "Don't the states have such laws already?"

    "Shut up, hater!"

  • Sarcastr0||

    If there was evidence state courts were failing to convict people of this crime, I might understand why you'd need federal oversight, but if anything the reverse seems to be true.

  • Eidde||

    That's the angle for federal intervention - enforcing equal protection of the law.

    Which should mean that before the feds take cognizance of regular crimes (murder, assault, etc.), they have to show that the state is unwilling or unable to fulfill its duty of protecting particular groups from these crimes.

    Such things have been known to happen. It's why we *have* an equal protection clause in the first place.

    I really don't see the states looking the other way on crimes against police like some sheriffs might have looked the other way when civil rights workers or Jehovah's Witnesses, or minority criminal suspects, were bring brutalized. They're not really comparable situations.

  • Brett Bellmore||

    Even if a state IS unwilling to fulfill it's duty in that regard, the 14th amendment doesn't authorize the feds taking the states' place, only forcing the state to do as it is obligated to. You can't (legitimately) transform an amendment whose subject is state government into an excuse to exercise direct authority over individual private citizens.

  • MightyMouse||

    This strikes me as similar to a "blue law".

  • Curly4||

    I also think the "Protect and Serve Act," is unnecessary at this time. Before this act is enacted reform of the police tactics need to be undertaken. When a suspect is shot with twenty to thirty rounds before the police stop shooting indicates to me that if the suspect is killed there will not be any hard questions to answer. The statement that "I was afraid for my life" does not stand because each candidate for the police should know that being kill is a possibility. If that is not the case who ever is recruiting these future police are not doing their job. Now I also will admit that the sidearm of the officers may well play a role in the officers shooting so many rounds. The old six-shot revolver the officer had only six rounds to shoot and if they shot them very quickly they would be disarmed for a short time and would be vulnerable for attack but with then auto-loading pistols with 14 to 20 round box magazine which can be replaced in about three seconds allows the officer shoot wildly and to reload very quickly.
    In other words until the SOP of the police are reviewed and changed as needed "Protect and Serve Act," is not needed. If after the police is reformed and if at that time it is needed then it could be enacted.

  • ||

    Lawyers (some of them) are vigilant about federalism issues and federal overreach. But when the public discusses proposed laws they focus on the specific issue (e.g. police/criminals/violence) brushing aside any consideration of state versus federal domains.

    It doesn't do any good to whine about it. That's the way it is, and the constitutional limits on federal scope have been blown away in the past century or so.

    I wonder if we could get people's attention if we proposed eliminating states entirely, leaving only federal government.

  • Eidde||

    I think there are certain eye doctors (eg, Rand Paul) who care more for federalism than certain lawyers.

  • Eidde||

    Come to think of it, some pot smokers are beginning to groove to federalism - who knows if they'll take broader lessons from their own experience. Maybe they'll forget the broader lesson.

    Get it, forgetfulness?

  • floridalegal||

    Instead of an intent to have a direct attack on federalism, could it be possible that the laws are a legitimate response to those groups, individuals, associations who feel that all acts of violence and hate against law enforcement is acceptable? Because law enforcement is evil and filled with racist according to some, it is legitimate to assault and attack law enforcement. Local government has bee ineffective. The hate and assault groups and individuals are using communication systems that cross state lines. They are using roads that cross state lines. There is funding that is using federal banking systems. If anyone thinks that attacks on law enforcement are grass root efforts and local responses, they are delusional.

  • Eidde||

    So...interstate commerce? Or maybe an offense against the law of nations?

    Maybe a violation of the bankruptcy laws? Because attacks on cops drain their pension fund, leading to bankruptcy, and Congress can nip this tendency in the bud!

  • Krayt||

    Your examples are well within Supreme Court-acceptable Rube Goldbergian commerce clause construction parameters.

  • Longtobefree||

    "because of the actual or perceived status of the person as a law enforcement officer."

    How about if the assault is "because he was an asshole"?

  • Brett Bellmore||

    I wouldn't want to try distinguishing that in a court from being a law enforcement officer, unless maybe he was being an asshole on his own time, out of uniform.

  • ReaderY||

    What evidence does Professsor Somin have that the Trump Administration has any interest in federalism, fair-weather or otherwise? It's at most part of the ancillary baggage that at least at the moment tends to come with judges who are conservative on the sorts of social issues the administration cares about, at least for the moment.

    And why would an advocate of strong-man government have any interest in rules limiting his power? Isn't this precisely the sort of bureacratic red tape preventing Getting Things Done that the strongman is there to get rid of?

    Finally it would be worth noting that the traditional argument in favor of expansive federal government is that the federal government supposedly has some sort of special interest in people without power, which the states supposedly do not. But the situation could just as easily be reversed. The federal government could take a special interest in helping people with power stick it to people without. What then?

    This hypothetical situation used to be nothing be nothing more than a scare tactic that might happen in a country like Germany or Russia, but people refused to believe could happen here. But look around, and you'll see it happening around you.

  • OldCurmudgeon||

    "And why would an advocate of strong-man government have any interest in rules limiting his power?"

    Counter-example: the Trump Administration's actual record has been consistently in the direction of divesting power from the executive branch to the legislative branch. e.g., DACA revocation + enforcement freeze, Obamacare repeal (attempt), cancelling the Climate "not-a-treaty," 1-in-2-out regulation cap, cancelling Iran the "not-a-treaty," etc.

  • Smartacus||

    "But if such minor and indirect effects are enough to authorize making something a federal crime, the same logic can justify federal regulation of almost any activity."

    They already are and it already does. Wickard v. Filburn.

  • ||

    Ah yes, the Commerce Clause, that magical incantation about ports of entry and the commerce between nations which turns out to justify unlimited Federal powers. Thank goodness we have a Constitution! Imagine the mess we'd be in if we did'nt.

  • OldCurmudgeon||

    In fairness, it's not clear that that the other branches or levels of government really want that power anymore. It's much easier and more fun to be a legislator or governor if you don't have any real responsibility.

    The one exception, weirdly enough, has been the judicial branch; they've also vastly increased their power over the last century.

  • Old Smokin' Egg||

    In a discussion of federal hate-crime legislation, Gail Heriot recently pointed out that the Constitution's double-jeopardy clause doesn't preclude separate state and federal prosecutions for the same set of acts. Wouldn't the passage of the P create a similar situation for alleged assailants of police officers? Even if I'm acquitted on state charges of assaulting an officer, I can still be put on trial in Federal court, and vice versa. Essentially, we'd be giving prosecutors two bites at the apple...

  • WJack||

    "[M]irrors the language used in hate crime laws aimed at protecting marginalized groups . . . ." Hate crime" laws afford zero protection for any group. In so far as law is a deterrent, crimes (including those motivated by "hate") are already punishable. "Hate crime" laws do no more than provide possible enhanced punishment for crimes against favored people.

    All govt. employees, that very special group of net tax consumers, soon should be up for special "protection." Yea!

  • BillyG||

    Hmm.... Cop pulls over and assaults a Govt. Employee. Hate Crime charge agains the Cop?

  • OldCurmudgeon||

    "n so far as law is a deterrent, crimes (including those motivated by "hate") are already punishable."

    Yes, but the probably of (wrongful?) punishment Is higher b/c you can be prosecuted by both the state and the feds.

  • Rеv. Arthur I. Kirkland||

    Look, the pathetic Bull Cow, the supposed "intellectual" is lying again. This time the Bull Cow relies on the clown, Radley Balko, cop-hater extraordinaire.

    You see, Balko and Bull Cow equate "killings" with "violence." This is patently absurd, and purposefully disengenious.

    "Violence" includes any form of violence, with or without weapons, directed at law enforcement officers.

    The fact that medical technology has improved, Officer safety training has increased and more officers are required to wear vests all contribute to lower deaths in the profession.

    That doesn't mean that "violence" directed at the police had dropped off. It just means that the tools to deal with mitigating that violence have improved.

    According to the UCR in 2016, 57,180 officers assaulted while performing their duties, 28.9 percent were injured.

    This means that 16,000 officers were injured in 2016.

    Radley the Clown never talks about assaultive behavior and these injuries, because these statistics don't support his agenda.

    Bull Cow is just too stupid to think on his own. (After all, he thinks Bulls are Cows and give you milk.)

    There are about 800,000 full time officers. That means in one year, almost 9% of all officers in the country were assaulted in the line of duty in one year.

  • apedad||

    Wow. . . that's quite the excursion off topic you got there.

    This blog is about whether a federal law is required (and the answer is no).

    But I guess you needed to vent since you're obviously in the middle of an identity crisis too.

  • Rеv. Arthur I. Kirkland||

    No, clown. Bull Cow made two claims, the first was based on federalism. The second was whether it was NECESSARY. In supporting the second claim, Bull Cow relied, in part, on cop-hater Balko's false "violence" claims. I feel it important to point out the lies and misinformation spread by Balko and Bull Cow.

    I actually don't support expansion of federal laws, and I think it is ok to oppose this strictly on pure federalism grounds. If Bull Cow wanted to be intellectually honest, and he isn't, he would focus solely on the federalism argument without attempting to give credence to Balko's droppings.

  • Seamus||

    At least the House version of the bill anticipates the federalism objection. See subsection (b) of the proposed new 18 U.S.C. §120. From the looks of it, the bill isn't any more of a federalism violation than the federal wire fraud statute (which relies to the same extent on a nexus with the "instrumentalit[ies] of interstate or foreign commerce."

  • OldCurmudgeon||

    "Morrison was partly undermined by the Court's terrible 2005 decision in Gonzales v. Raich. "

    I disagree; Gonzales was compelled by Wickard (and the thousands of cases that rely on it).

    The real "terrible...decision" was the pot-head's choice to lead off with a *medical* marijuana case, instead of finding some grandma that grew marijuana because it looked pretty or because she wanted to feed the rabbits. That bit of piss-poor lawyering did huge damage to the cause of federalism specially, and limited government generally.

  • swood1000||

    Normally these are made federal offenses because they are not being adequately handled locally. Is there evidence of that? What exactly is the concern here, that local political forces in certain localities force the charges to be reduced, making it open season on cops? That local prosecutor budgets and resources are no match for the resources of national civil rights organizations on the other side?

    It looks like the state would have to waive jurisdiction or the AG would have to declare that there would not be substantial justice under local prosecution. According to a statement by Sen. Hatch, the new provision:

    Requires certification by the Attorney General that a state has waived jurisdiction or that federal prosecution is in the public interest and necessary to secure substantial justice;
  • ||

    The hate crime statute (18 USC 249) contains similar language.

  • swood1000||

    Right. One of the conditions under which the federal crime can be prosecuted is plainly stated to enable double jeopardy if the feds aren't happy with the result under the state prosecution:

    (C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence;
  • bernard11||

    I think this mostly a case of legislators thinking, probably correctly, that they better get on the bandwagon. No one wants to run for office and have their opponent running ads saying that Senator Foghorn refused to protect the police.

    Once a couple of legislators make this proposal others go along out of self-defense.

  • bernard11||

    I think this mostly a case of legislators thinking, probably correctly, that they better get on the bandwagon. No one wants to run for office and have their opponent running ads saying that Senator Foghorn refused to protect the police.

    Once a couple of legislators make this proposal others go along out of self-defense.

  • bernard11||

    I think this mostly a case of legislators thinking, probably correctly, that they better get on the bandwagon. No one wants to run for office and have their opponent running ads saying that Senator Foghorn refused to protect the police.

    Once a couple of legislators make this proposal others go along out of self-defense.

  • bernard11||

    I think this mostly a case of legislators thinking, probably correctly, that they better get on the bandwagon. No one wants to run for office and have their opponent running ads saying that Senator Foghorn refused to protect the police.

    Once a couple of legislators make this proposal others go along out of self-defense.

  • bernard11||

    I think this mostly a case of legislators thinking, probably correctly, that they better get on the bandwagon. No one wants to run for office and have their opponent running ads saying that Senator Foghorn refused to protect the police.

    Once a couple of legislators make this proposal others go along out of self-defense.

  • bernard11||

    Wow. I think I set a record there. Sorry.

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