May 23, 2017

The Honorable Chuck Grassley
United States Senate
135 Hart Senate Office Building
Washington, DC 20510

The Honorable Dianne Feinstein
United States Senate
331 Hart Senate Office Building
Washington, DC 20510

Dear Chairman Grassley and Ranking Member Feinstein,

I write on behalf of Human Rights Watch to express our strong opposition to HR 2437/SB 1134, known as the “Back the Blue Act,” and urge you to vote against it. This bill does nothing meaningful to protect officers from danger. Instead, it protects police departments from liability, and removes incentives for those departments to monitor themselves and improve the quality of their policing. The bill would do the following:

  • Amend civil rights laws to severely limit private citizens’ ability to hold police accountable for their violations of the law;
  • Remove crucial incentives for police departments to prevent abuse by officers;
  • Restrict courts’ ability to sentence fairly by imposing harsh and inflexible mandatory minimum prison sentences;
  • Impose federal capital punishment for crimes already covered by state laws, while reducing habeas corpus and other protections designed to enforce constitutional rights and prevent miscarriages of justice.

In a time when there are increasing calls for police accountability, for better training and discipline, and more respect for civil rights, this bill would take us a step backwards away from meaningful oversight and towards impunity.

Limiting Accountability for Police Violations of Constitutional Rights

Among the most significant and dangerous changes proposed by this bill are the amendments to 42 U.S.C. sections 1983 and 1988. Section 1983 allows private citizens to enforce their constitutional rights by suing government officials who violate those rights. Enacted in 1871, originally known as the “Ku Klux Klan Act,” it was applied to police officers violating civil rights beginning in 1961 with the Supreme Court case Monroe v. Pape. Section 1983 has a long history as the primary vehicle for holding police officers accountable for violations of the law. The desire to avoid section 1983 lawsuits also serves as a financial incentive to cities and counties to pressure police departments to better train, supervise and discipline their officers. Congress should be extremely careful not to eviscerate this important check on those officers who abuse their authority.

The “Back the Blue Act” proposes far-reaching changes to Section 1983 that would severely limit its oversight function. The bill says that if a government official violates a person’s rights and that person was doing something “in the course of,” “related to,” or “as a result of” commission of a felony or crime of violence, then that person may only recover out-of-pocket expenses, and may not recover attorney’s fees. Felonies include a broad range of conduct, much of which is not violent or dangerous. Under this section, “crime of violence” includes misdemeanors that only damage property or involve threats to use force. “In the course of” and “related to” are extremely vague terms that could apply to a great deal of conduct, including merely being present at a crime. The amendment is unnecessary to protect police, as section 1983 lawsuits are only available to compensate excessive or unreasonable uses of force. Harm caused by an officer’s use of reasonable force to make any lawful arrest is already excludable under Section 1983.

This amendment means that if police arrest someone for selling marijuana, and beat him without justification, that person may only recover medical expenses, but nothing for emotional distress, pain and suffering or punitive damages to deter future misconduct. If a police officer unlawfully shoots and kills someone committing an act of vandalism, the police department would be liable for funeral expenses and nothing more. Such a limit on liability would make it much harder for victims of abuse to secure effective legal representation, and remove a major restraint on unjustified violence by police officers.

Congress passed 42 U.S.C. Section 1988 to enable civil rights lawyers to bring claims vindicating individual constitutional rights by providing attorneys’ fees if they prove a violation of law. Congress saw such lawsuits as crucial to safeguarding the rights of all Americans. Lawyers depend on this provision to make Section 1983 cases financially viable. If the “Back the Blue Act” passes, they would not be able to take on the large number of cases where there exists an argument that the plaintiff was doing something “related to” a felony or crime of violence, because this bill would preclude recovery of those fees. Civil rights attorneys would lose the incentive they have under the current law to enforce civil rights by acting as “private attorneys general.” Police departments would escape liability for unlawful harms caused by their officers and lose that incentive to prevent such harms.

Restricting Judges’ Discretion in Sentencing

The bill would impose severe mandatory minimum prison sentences under federal law for assaults on local police officers. An assault that causes “bodily injury,” defined to include injuries as minimal as a cut, an abrasion, a bruise or even just the temporary feeling of physical pain, carries a sentence range of two to ten years in prison. By contrast, the same crime in California is usually a misdemeanor with a maximum jail sentence of one year.

Assaults on police officers vary greatly: a rare few involve targeted attacks, while others occur during moderate resistance to arrest or detention, and still others occur in crowd control situations at protests. Many of these assault incidents require significant factual inquiry to understand the defendant’s level of culpability. Mandatory minimum sentences remove discretion from the court to tailor punishment to the individual circumstances of the case, and create a serious risk that courts will be forced to impose sentences that are grossly disproportionate to the severity of the offense or the culpability of the offender.

Requiring low-level offenders to serve lengthy sentences is costly to taxpayers. There is little conclusive evidence that such harsh punishment will deter future crimes. Some studies question whether they will have any deterrent effect or actually will increase crime in the long run.

Human Rights Watch has documented how mandatory minimum sentences can create enormous pressure on people to plead guilty regardless of actual guilt. This pressure to plead guilty, in addition to subverting the court’s truth-finding role and subjecting people to unwarranted convictions, may also shield officers who do commit misconduct from any consequences to their actions, as a guilty plea on an assault on an officer charge will generally preclude any civil rights lawsuit.

Expanding the Federal Death Penalty

The “Back the Blue Act” would expand the federal death penalty to include those convicted of killing local police officers. Human Rights Watch opposes the death penalty in all cases, as an inherently cruel punishment whose finality also makes it impossible to reverse miscarriages of justice. Since 1973, 157 prisoners have been released from death row after showing proof of their innocence, while another 20 were later proven innocent after their execution. Racial bias, arbitrariness and error plague the implementation of the death penalty. Most criminologists agree it does not serve as an effective deterrent to crime.

While any expansion of the death penalty is wrong, in this case, it is also unnecessary. Every state which imposes the death penalty does so for people convicted of killing police officers and all others impose their harshest penalties.

The “Back the Blue Act” only worsens the risk of error, as it removes certain habeas corpus protections and limits judicial discretion to act “in the interests of justice” in the course of death penalty prosecutions for those accused of killing police. These protections are designed to prevent miscarriages of justice that may result in the execution of innocent people. Removal of such protections damages the integrity of our justice system.

Support Police While Maintaining Oversight

There are many ways for Congress to support and protect the vast majority of police officers who bravely and lawfully serve, without sacrificing necessary oversight that ensures police will respect rights and not commit acts of violence of their own. Congress could fund better training, promote programs that improve relations with communities, promote “best practices” that reduce dangerous confrontations between civilians and officers, and support efforts to track and remove officers with histories of misconduct. The “Back the Blue Act,” which purports to protect law enforcement officers from violence, does not propose any meaningful measures to advance this important goal of keeping officers safe. Instead, it would weaken police accountability and do serious damage to existing tools for the protection of civil rights.

Human Rights Watch respectfully requests that the Judiciary Committee reject this harmful bill.

Sincerely,

Alison Parker
Co-Director, US Program

cc: The Honorable Bob Goodlatte, The Honorable John Conyers