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Volokh Conspiracy

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.

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.