[Congressional Record Volume 163, Number 87 (Friday, May 19, 2017)]
[House]
[Pages H4362-H4373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                PROBATION OFFICER PROTECTION ACT OF 2017

  Mr. GOODLATTE. Mr. Speaker, pursuant to House Resolution 324, I call 
up the bill (H.R. 1039) to amend section 3606 of title 18, United 
States Code, to grant probation officers authority to arrest hostile 
third parties who obstruct or impede a probation officer in the 
performance of official duties, and ask for its immediate 
consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore (Mr. Simpson). Pursuant to House Resolution 
324, the bill is considered read.
  The text of the bill is as follows:

                               H.R. 1039

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Probation Officer Protection 
     Act of 2017''.

     SEC. 2. AUTHORITY OF PROBATION OFFICERS.

       (a) In General.--Section 3606 of title 18, United States 
     Code, is amended--
       (1) in the heading, by striking ``and return of a 
     probationer'' and by inserting ``authority of probation 
     officers'';
       (2) by striking ``If there'' and inserting ``(a) If 
     there''; and
       (3) by adding at the end the following:
       ``(b) A probation officer, while in the performance of his 
     or her official duties, may arrest a person without a warrant 
     if there is probable cause to believe that the person has 
     forcibly assaulted, resisted, opposed, impeded, intimidated, 
     or interfered with the probation officer, or a fellow 
     probation officer, in violation of section 111. The arrest 
     authority described in this subsection shall be exercised 
     under such rules and regulations as the Director of the 
     Administrative Office of the United States Courts shall 
     prescribe.''.
       (b) Table of Sections.--The table of sections for 
     subchapter A of chapter 229 of title 18, United States Code, 
     is amended by striking the item relating to section 3606 and 
     inserting the following:

``3606. Arrest authority of probation officers.''.

  The SPEAKER pro tempore. After 1 hour of debate on the bill, it shall 
be in order to consider the amendment printed in House Report 115-127, 
if offered by the Member designated in the report, which shall be 
considered read, shall be separately debatable for the time specified 
in the report equally divided and controlled by the proponent and an 
opponent, and shall not be subject to a demand for a division of the 
question.
  The gentleman from Virginia (Mr. Goodlatte) and the gentlewoman from 
Texas (Ms. Jackson Lee) each will control 30 minutes.
  The Chair recognizes the gentleman from Virginia.


                             General Leave

  Mr. GOODLATTE. Mr. Speaker, I asked unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous materials on H.R. 1039.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.


Permission to Postpone Proceedings on Amendment to H.R. 1039, Probation 
                     Officer Protection Act of 2017

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that the question 
of adopting the amendment to H.R. 1039 may be subject to postponement 
as though under clause 8 of rule XX.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.
  Before I address the bill under consideration today, I would like to 
take a few minutes to honor a very special

[[Page H4363]]

member of my staff, Burak Guvensoylar, who lost his courageous battle 
with cancer this past weekend.
  Burak was a valued member of the Judiciary Committee team and worked 
on a variety of issues, including digital privacy and intellectual 
property. His vast knowledge and grasp of the issues impacting the 
technology community was a tremendous asset to the committee.
  Most recently, Burak's work included the development of the 
committee's Innovation and Competitiveness Agenda; and his steadfast 
work and tenacious attitude were not only essential in making this 
initiative a success, but were also a testament to his character. In 
fact, while he was undergoing intensive cancer treatments, he was 
actively working and sending follow-up emails from his hospital bed. 
And just days before Burak passed away, he met with FCC Commissioner 
Ajit Pai to discuss a number of Judiciary Committee priorities. For 
Burak, nothing could prevent him from an opportunity to discuss and 
advance the policies he was so passionate about.
  Burak was a true technology policy enthusiast. Prior to joining the 
staff of the Judiciary Committee, Burak served as a legislative adviser 
for Congressman Randy Forbes. While working for Congressman Forbes, 
Burak handled the diverse range of issues that fall under the 
jurisdiction of the Judiciary Committee, but it was always evident that 
technology policy was his first love.
  He cofounded the Congressional Tech Staff Association and served as 
an executive officer responsible for the professional development 
program.
  Prior to his career on Capitol Hill, Burak worked at TechAmerica and 
CompTIA, focusing on international trade policy.
  Burak has many friends here in the Halls of Congress on both sides of 
the aisle. I know all of my colleagues join me in extending our deepest 
sympathies to his mother, Filiz; his sister, Aylin Forbes; his 
girlfriend, Ashley Newsome; and all of his loved ones.
  Burak will be deeply missed.
  Mr. Speaker, I rise in strong support of H.R. 1039, the Probation 
Officer Protection Act of 2017, and urge my colleagues to do the same.
  I want to thank the primary author of the bill, the gentleman from 
Washington, Congressman Reichert, for his leadership on this and many 
other law enforcement issues.
  Under current law, a Federal probation officer may arrest a 
probationer or an offender on supervised released if the officer has 
probable cause to believe that the offender has violated a condition of 
his or her probation or release. The officer may make the arrest with 
or without a warrant.
  Unfortunately, current law does not grant probation officers arrest 
authority in situations where a third party attempts to physically 
obstruct an officer or inflict physical harm on the officer. Despite 
the fact that interfering with a probation officer in the performance 
of his or her official duties is in itself a crime, Federal probation 
officers lack the authority to correct or restrain a physically 
interfering third party.
  In fact, a probation officer's only course of action is to retreat 
from the situation. This not only exposes these officers to a 
heightened risk of harm, as they are not permitted to subdue the 
assailant, it also allows the probationer to conceal evidence that he 
has violated terms of his probation or supervised release or any other 
criminal activity.
  H.R. 1039 is a reasonable and responsible remedy to this very real 
problem. This bill, which has the support of the Judicial Conference of 
the United States and the Federal Law Enforcement Officers Association, 
will protect probation officers and enhance their ability to do their 
job by giving them authority to arrest a third party who forcibly 
interferes with an officer's performance of his or her official duties.

                              {time}  0915

  This bill would not give probation officers general arrest authority. 
Rather, as noted, it grants them the very limited authority to arrest a 
third party who is interfering with the duties of the officer, which is 
already a Federal crime.
  I urge my colleagues to support this commonsense measure to ensure 
that these dedicated men and women have the necessary authority to 
undertake their duties safely and effectively.
  Mr. Speaker, I reserve the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, first of all, to the chairman and to the Republican 
team, let me offer, on behalf of the Democrats and Mr. Conyers, our 
deepest sympathy for the loss of Burak, and to also acknowledge how 
important our staff is and how important we are as a family on the 
Judiciary Committee; staff, Republican and Democratic staff members, 
working together around legislation that makes a difference in the 
lives of Americans. To hear the dedication of Burak only warms our 
hearts to recognize that we still live in the greatest country in the 
world because we have young people willing to serve and sacrifice on 
behalf of their Nation. I offer my deepest sympathy to you and to his 
family as well.
  Mr. Speaker, I rise to discuss the underlying bill, and that is H.R. 
1039. Again, as we finish Police Week, let me say to all of those in 
law enforcement, including our Federal law enforcement, local, county, 
and State, a very large ``thank you'' for the work that you have done.
  In my work as a former judge in the city of Houston, I have seen 
their work up close and personal, and as well, I have had the 
opportunity, on a number of cases, where I have asked and interacted 
with them as they have proceeded with their investigation to find the 
culprit, the perpetrator, and to make the community safe.
  Federal probation officers perform a critical service in interacting 
with and managing their supervisees. They have a central role in 
seeking to achieve the important goals of supervision, which includes 
rehabilitating the defendant, safeguarding society from further 
criminal conduct by the defendant, and protecting the rights of 
victims.
  Although probation officers do have the ability to arrest a 
supervisee under certain circumscribed conditions, they should not take 
on the role of police officers. Rather, they should focus on their role 
of working in a constructive manner with supervisees to maximize the 
chances of adherence to the conditions of supervision.
  We certainly do not want probation officers to be threatened or 
assaulted while performing their duties, nor do we want anyone to 
obstruct the performance of those duties. In many instances, those 
probation officers can be assisted by backup officers or other Federal 
officers in the line of their duty. That is why Congress enacted 
section 111 of title 18 of the United States Code which prohibits such 
behavior. If violated, these crimes should be investigated, charges 
brought when appropriate, but also the probation officer can seek 
assistance.
  In fact, probation officers have long relied on law enforcement 
officers to provide support during searches, and I believe that is 
still the best course. Section 111, however, itself presents serious 
issues about the vagueness of some of its terms that define violation, 
such as ``interferes'' or ``opposes.''
  May I remind my colleagues that we have a First Amendment. We have 
the right of freedom of speech and freedom of access, freedom of 
movement. This exacerbates my concerns about allowing probation 
officers to arrest individuals whom they are not supervising for 
violations of this section.
  Indeed, we are told by proponents of the bill that Federal probation 
officers plan to use lesser-included authority to detain violators 
instead of bringing them in for charges after an arrest. At a time when 
we need to do more to de-escalate circumstances involving 
confrontations between law enforcement and citizens, I am concerned 
that establishing this authority would only lead to more confrontation.
  In concluding, as I indicated, the bill would authorize Federal 
probation officers to arrest, without a warrant, an individual other 
than their supervisee if there is probable cause to believe that person 
assaulted or interfered with a probation officer in the course of their 
duties.
  I believe there are conflicting constitutional issues here, and I ask 
my colleagues, with all due respect, to oppose the legislation.

[[Page H4364]]

  Mr. Speaker, I rise in strong opposition to H.R. 1039, the 
``Probation Officer Protection Act.''
  I must oppose this bill for several important reasons.
  To begin with, this bill raises serious constitutional and practical 
concerns that could have been identified and explored had our Committee 
held any hearings on the subject matter.
  This bill would authorize federal probation officers to arrest 
without a warrant an individual--other than supervisees--if there is 
probable cause to believe that person assaulted or interfered with a 
probation officer in the course of their duties.
  The changes this bill would make to current law would significantly 
alter the role of federal probation officers and invite abuse in the 
application of the proposed expanded authority.
  Federal probation officers perform a critical service in interacting 
with and managing their supervisees. They have a central role in 
seeking to achieve the important goals of supervision, which includes:
  (1) rehabilitating the defendant;
  (2) safeguarding society from further criminal conduct by the 
defendant; and
  (3) protecting the rights of victims.
  Although probation officers do have the ability to arrest a 
supervisee under certain circumscribed conditions, they should not take 
on the role of police officers. Rather, they should focus on their role 
of working in a constructive manner with supervisees to maximize the 
chances of adherence to the conditions of supervision.
  We certainly do not want probation officers to be threatened or 
assaulted while performing their duties, nor do we want anyone to 
obstruct the performance of those duties.
  That is why Congress enacted Section 111 of Title 18 of the United 
States Code, which prohibits such behavior. If violated, these crimes 
should be investigated and charges brought when appropriate.
  In fact, probation officers have long relied on law enforcement 
officers to provide support during searches, and I believe that is 
still the best course to continue.
  Section 111, however, itself presents serious issues about the 
vagueness of some of its terms that define violations, such as 
``interferes'' or ``opposes''.
  This exacerbates my concerns about allowing probation officers to 
arrest individuals whom they are not supervising for violations of this 
section.
  Making such determinations on vague terms invites abuse.
  Indeed, we are told by proponents of the bill that federal probation 
officers plan to use ``lesser included'' authority to ``detain'' 
violators instead of bringing them in for charges after an arrest.
  This is an invitation for abuse as it indicates the statute may be 
used--at times--when not necessary.
  And, at a time when we need to do more to de-escalate circumstances 
involving confrontations between law enforcement and citizens, I am 
concerned that establishing this authority will only lead to more 
confrontation.
  This is all the more troubling because of constitutional concerns 
regarding such detentions. As the Federal Public Defenders of New York 
explains: ``the Fourth Amendment does not permit probation officers to 
exercise this `lesser included' power. Under an exception to the Fourth 
Amendment's probable cause requirement, police officers, when executing 
a search warrant, are permitted to temporarily restrain third parties 
absent probable cause for arrest, including by using handcuffs. In 
holding such detentions to be `reasonable,' the Supreme Court 
emphasized the fact--`of prime importance'--that the search was 
authorized by a neutral magistrate's finding of probable cause to 
search the premises.''
  In the circumstances contemplated by this bill, the probation 
officers would have the right to be on the premises, but their 
underlying authority to detain individuals--not based on a probable 
cause warrant--would fail this constitutional requirement.
  Overall, the extension of third-party arrest authority to federal 
probation officers is a step in the wrong direction. As the Federal 
Defenders warn, the ``bill represents a retreat from the current 
constructive role of probation officers in reintegrating offenders into 
society. If probation officers assumed the role of police, directing 
and restraining, or arresting, family and friends, progress in 
individual cases and the system as a whole would be undermined.''
  Likewise, the American Civil Liberties Union and the Leadership 
Counsel for Civil and Human Rights have expressed strong opposition to 
this bill.
  I appreciate the dedication of federal probation officers in carrying 
out their important duties. And it is because of my respect for the 
role that they play that I fear that this bill will ultimately serve to 
undermine it.
  Accordingly, I ask that my colleagues join me in opposing this well-
intentioned, but harmful bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to 
the gentleman from Washington (Mr. Reichert), the chief sponsor of the 
legislation.
  Mr. REICHERT. Mr. Speaker, today I am here to talk about a bill that 
should be a fully bipartisan bill supported by all Members of this 
body. It gives our probation officers the tools they need to defend 
themselves, but also, at the same time, protect the people who are on 
probation that the probation officers are trying to help and protect 
and keep on track and get them back on a path to productive citizenship 
in this country. Sometimes they are impeded from doing their job, not 
just verbally.
  I was a cop for 33 years. I was verbally abused thousands of times. I 
have lost track. Those bounce off the badge, and that is what probation 
officers do. Verbal abuse is verbal abuse. You deal with it, you handle 
it, and you go about your day. But when somebody puts their hands on 
you, or they spit on you, that is physical. That is assault. Probation 
officers should be able to protect themselves and take actions in those 
instances when they are assaulted. You don't need an arrest warrant. 
You don't need a search warrant to arrest someone who has just 
assaulted an officer. This is common sense.
  So to say you need a search warrant or an arrest warrant to arrest 
someone who has assaulted you is the wrong way to look at this law. The 
person who is being supervised lives in a residence, and the probation 
officer has the authority to go to that residence and has the 
authority, by the way, Mr. Speaker, to walk into that residence. They 
have the authority to force their way into that residence if it is 
known to be owned by the person who is on probation. And if they are 
obstructed in doing that, it is a violation of the law. Furthermore, if 
they are assaulted, it is another violation.
  In the past, what has happened is that the probation officers had to 
step away, walk away, and say: Oh, well. The guy just spit in my face. 
He punched me in the face. He pushed me. He obstructed me. I guess I 
will go back to my car and get on the radio, and 30 minutes from now 
when police officers can finally show up--because we are shorthanded 
across this Nation as far as police officers go. We have hundreds and 
hundreds, thousands, of vacancies across this Nation in every police 
department, every sheriff's office. So we are going to just step away, 
we are going to call for backup, and we are going to wait for a half an 
hour and see what happens.
  I think this not only puts the probation officer at risk, but it also 
puts the person who is on probation at risk. What is happening in that 
house that that person doesn't want us to come in and see?
  I have worked with, as you might guess, probation officers from the 
local level, Federal level, all across the spectrum. They are well 
trained. They have an academy that they go through. They raise their 
right hand and swear to uphold the Constitution, all the laws of this 
country. They are trained. Every year they have a minimal amount of 
training, 40 hours. That is the minimum. They have additional training 
on top of that on specific issues on how to handle situations where it 
escalates to a physical event. They know how to de-escalate verbal 
events. These are professional people who are doing a job that a lot of 
people don't want.
  And already States across this country have recognized that their 
State probation officers need this sort of authority. In some States, 
for example, they have given them full police authority. I repeat, full 
police authority.
  In this case, it is very limited. It is limited to the obstruction. 
It is limited to the physical obstruction of the probation officer 
doing their job that we have asked them to do on behalf of all of us in 
this country. The least we can do, as we wrap up National Police Week, 
is to say we support law enforcement.
  Mr. Speaker, there are Members in this body who have found a way--
decided that there is a way that I can vote ``no'' on this instead of 
standing up and saying--there are Members here that have had police 
officers added to the memorial wall this past week; in

[[Page H4365]]

some cases, five people from one State. Those Members have decided to 
find a way to not support law enforcement, and they are going to vote 
``no.''
  Mr. Speaker, we can yak all we want about supporting cops, but if we 
don't show it with this vote, it is all talk. When I was a cop, you had 
to walk the talk. And today, Members of this body, if you support law 
enforcement, you better walk the talk.
  Ms. JACKSON LEE. Mr. Speaker, let me thank the gentleman and indicate 
that there is no doubt we want our officers to be safe.
  I do want to bring to the attention of my colleagues that we don't 
want probation officers to be threatened or assaulted while performing 
their work or their duties, nor do we want to obstruct the performance 
of those duties.
  Let me remind my colleagues that many times probation officers are 
going into homes. There are moms and grandmoms or granddads or 
children, and certainly we realize that emotions of concern may occur.
  We want our probation officers to be safe. That is why Congress 
enacted section 111 of title 18 of the United States Code which 
prohibits such behavior. And if violated, these crimes should be 
investigated, and charges are brought.
  But the other point is that our probation officers undergo an initial 
6 weeks of training and some additional training during the year. They 
still do not have the degree of training of law enforcement officers. I 
want them to be protected. That is why I think it is important that 
they have the assistance of trained law enforcement officers.
  Not all probation officers carry a firearm, as it varies in each 
judicial district. We want them protected, and we would rather follow 
the law, which is section 111.
  Mr. Speaker, it is my pleasure to yield 5 minutes to the 
distinguished gentleman from New Jersey (Mr. Pascrell), who has a 
longstanding record of advocacy and support for the Nation's law 
enforcement and first responders, and he is a member of the Ways and 
Means Committee.
  Mr. PASCRELL. Mr. Speaker, as we just heard from my good friend, the 
gentleman from Washington (Mr. Reichert), as co-chairs of the Law 
Enforcement Caucus, this is an important piece of legislation for us.
  Mr. Speaker, as the lead Democrat sponsor of this bill, the Probation 
Officer Protection Act, I rise in strong support of closing a gap in 
the current law to help Federal probation officers more safely and 
effectively carry out their duties.
  Despite the fact that assaulting, resisting, or otherwise preventing 
Federal probation officers from performing their official duties is 
against the law, current law does not provide the same officers the 
authority to correct or restrain an interfering third party. This act 
simply expands the authority of the Federal probation officers to 
arrest a third party with probable cause in cases where a third party 
tries to physically obstruct or harm the officer.
  I understand that some of my friends worry about the implications of 
expanding arrest authority for law enforcement. I have to say there are 
a lot of trumped up arguments being made against this bill. For 
starters, Federal probation officers are fully trained and sworn 
Federal law enforcement officers. They have a tremendous training 
program in Charleston, South Carolina, the Law Enforcement Training 
Center. They understand that this training is a continuing process as 
well.
  These officers receive extensive, ongoing, nationally standardized 
training to safely arrest individuals on supervised release with 
probable cause without a warrant. This training is also applicable to 
the limited arrest authority granted by this bill.
  The idea that expanding probation officers' arrest authority to third 
parties will somehow lead to probation officers going on an unwarranted 
arresting spree, violating individuals' civil rights with impunity, is 
nonsense.

                              {time}  0930

  The bill includes language to ensure that the Director of the 
Administrative Office of the United States Courts would issue national 
guidelines to implement this new, limited authority. The authority will 
not give Federal probation officers plenary law enforcement powers or 
general arrest authority. Probable cause still must exist to carry out 
an arrest. That is very clear in the legislation. The bill does nothing 
to alter Federal probation officers' scope of responsibility. To 
suggest so undermines the training these officers receive and the oaths 
that they take.
  Secondly, I understand that constitutional concerns have been raised 
by my colleagues about the due process and rights of these third 
parties. Nothing in this bill, Mr. Speaker, alters the due process or 
rights of third parties. Nothing in the bill.
  If a third party agrees to house an individual on supervised release, 
they consent to the Federal probation officer having access to common 
areas and any part of the home to which the offender has access. 
Additionally, Federal probation officers build a relationship with the 
third party housing the individual on supervised release in order to 
manage their expectations on what it means to have a supervised 
probationer living under their roof.
  Finally, Mr. Speaker, Federal probation officers conducted a total of 
1,060 searches pursuant to a court-ordered search condition or with 
consent last year. More than half of the searches had at least one 
third party present. Despite relying on other law enforcement agencies 
for support and assistance during 493 of these searches, Federal 
probation officers encountered uncooperative third parties on 39 
occasions.
  So, Mr. Speaker, as my colleagues have acknowledged, we are not 
talking about a significant number of instances where this additional 
authority is needed--remember, only 39 instances last year. Opponents 
claim these numbers are low, making this a solution in search of a 
problem. But in these 39 instances, a third party threatened, 
intimidated, refused to cooperate, and denied officers entry into 
residence to prevent an officer from doing their job.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Ms. JACKSON LEE. Mr. Speaker, I yield the gentleman an additional 1 
minute.
  Mr. PASCRELL. Mr. Speaker, opponents claim, that is their claim that 
they have.
  This is against the law, plain and simple. The probation officer in 
these instances did not have the authority they needed to remedy the 
situation.
  No one wants to increase the number of arrests. That is not the 
purpose of the legislation. In a perfect world, everyone wants a 
situation to be deescalated before an arrest or a detention happens. 
Ideally, Federal probation officers would have the resources to visit 
their probe with a law enforcement officer.
  However, we don't live in a perfect world. Oh? These resources are 
not always available. Third parties sometimes intentionally interfere 
to prevent a Federal probation officer from performing their official 
duties.
  I urge my colleagues to support the Probation Officer Protection Act 
to ensure Federal probation officers are able to do their job safely 
and more effectively by giving them third-party arrest authority when 
probable cause exists.
  Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to 
the gentleman from Texas (Mr. Poe), a member of the Committee on the 
Judiciary.
  Mr. POE of Texas. Mr. Speaker, on this legislation, I think it is 
important that individuals understand probation officers. I worked at 
the courthouse in Houston, Texas, as a prosecutor and then as a 
criminal court judge for 22 years. I had probation officers report to 
me. That was our system. I knew a lot of probation officers, Federal 
and State. I think our society does not understand how important their 
job is.
  A person comes to court charged with a crime, and the judge decides 
to release that person on supervised probation. The person goes back 
out into the community and is supposed to follow a bunch of rules or 
the probation could be revoked. Probation officers not only have 
probationers come to their office to report, but probation officers go 
out there where these probationers are--in their homes and where they 
are working--and check up on them, trying to make sure they toe the 
line. It is a very, very dangerous job, in my opinion.
  Many of these probation officers work alone, just because of budget 
problems. So they will go out there,

[[Page H4366]]

and they will talk to some probationer about their probation and try to 
encourage them to, for example, get a job. That is what you are 
supposed to do when you are on probation. And they encounter other 
people--sometimes family members, sometimes friends, sometimes 
roommates, business associates--and they start yelling and screaming at 
the probation officer. Sometimes they commit a crime against the 
probation officer. What is the probation officer supposed to do? Call 
the police? No.
  Under this legislation, it allows the probation officer to arrest 
other people who are basically committing a crime against the probation 
officer, whether it is an assault or whether it is a threat or whether 
it is interfering, maybe, with the arrest of the probationer. That is 
what this legislation does. It helps protect the probation officer when 
they are out there trying to rehabilitate probationers.
  I have heard stories over the 22 years at the courthouse from 
probation officers about how, when they go out in one of these areas of 
Houston, Texas, some of the people that are there with the probationer 
aren't the nicest folks in the world, and they start yelling, 
screaming, and actually will commit a crime against the probation 
officer--for example, a threat, or maybe even an assault.
  Remember, many of these individuals are working alone. They don't go 
out there with a SWAT team. They are out there by themselves, and they 
are doing, really, what we want them to do to keep that probationer 
following the straight and narrow, make sure they are doing what they 
are supposed to do. And then sometimes people interfere. This 
legislation protects the probation officer and allows the officer to 
keep those folks at bay and arrest them.

  Now, I have heard the concerns of whether or not this is a violation 
of the Fourth Amendment. There is no one more supportive of the Fourth 
Amendment than I am. It does not violate the Fourth Amendment. It gives 
the probation officer authority to arrest only after probable cause 
because a crime was committed. Rather than call for help, call for the 
Texas Rangers, they can actually arrest that individual who is 
interfering.
  I do not believe it is a violation of the Fourth Amendment. I would 
hope those people who think so would read the Fourth Amendment and then 
read the statute as well.
  I support this legislation. I appreciate what the chairman and 
Sheriff Reichert had to say.
  And that is just the way it is, Mr. Speaker.
  Ms. JACKSON LEE. Mr. Speaker, may I inquire if the other side has any 
additional speakers?
  Mr. GOODLATTE. Mr. Speaker, I am prepared to close.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself such time as I may 
consume to close.
  First of all, let me indicate the important work that all law 
enforcement do and, as well, those who serve in the probation 
departments of our State and Federal Government. In particular, we are 
talking about Federal probation officers. I think it is important to 
give them a debt of gratitude.
  But they are not police officers. They are probation officers. Their 
training is quite different. Their role is quite different. They are to 
engage in a constructive relationship with the probationer, 
rehabilitation, making sure they adhere to their rules and confinement 
or what is detailed by the court. They do it very well; so much so, 
that we have determined that the incidents are very low.
  Of the 987 searches that were conducted by Federal probation 
officers, only 30 involved uncooperative third parties, or 3 percent. 
We would like it to be zero. Of the 1,060 searches conducted in 2016, 
only 39 involved uncooperative third parties, which amounts to about 
3.7 percent.
  But I agree, no probation officer should be subjected to encountering 
any manner that threatens them. But this legislation is vague; it is 
constitutionally weak. It is weak as relates to the Constitution. Its 
premises, as unopposed and interfered, invite abuse.
  I still maintain that many of these probation officers go to the 
homes of either the probationer or their family, and likely, in many 
instances, it is close individuals.
  I believe probationers can be assisted by law enforcement officers. 
Remember, the training is distinctly different. What it lends itself to 
is overbroad interpretations of interference with probation officers, 
whose duties may lead to overzealous exercise of arrest authority, 
which does violate the Constitution.
  We are now looking at ways to work with law enforcement, and the 
solution would not be even more training, because we do not want to 
turn probation officers into police officers, which would undermine the 
constructive role probation officers have in the rehabilitation of 
supervisees. Detaining, arresting, and issuing orders to family, 
friends, employers, and coworkers of supervisees will not advance the 
goals of supervision but would escalate conflict and lead to greater 
danger.
  These are high goals that my colleagues have spoken of, and I 
certainly believe that these are worthy goals, but I would offer to say 
that third parties are not in the same position as those who are 
supervised with respect to their rights. They have given up none of 
their rights and should not be detained or arrested in violation of the 
Fourth Amendment. It is and can be a violation of the Fourth Amendment, 
of unreasonable search and seizure. It is too vague a description to 
allow an onsite determination as to whether someone should be arrested.
  So, in the name of the respect and dignity of all and the 
appreciation of probation officers, if they view the situation as 
inappropriate or threatening, as the law allows, those cases should be 
investigated and prosecuted, but they can call law enforcement 
officers. Federal probation officers should never be threatened, 
intimidated, assaulted, or precluded from doing their jobs. 
Nevertheless, H.R. 1039, rather than improving their ability to execute 
their responsibilities, would, unfortunately, have the opposite result.
  In addition to presenting the constitutional concerns, the bill fails 
to provide an acceptable, practical, or necessary preventative measure. 
Further, as the public defenders of New York have indicated, the Fourth 
Amendment does not permit probation officers to exercise this lesser 
included power. Under an exception to the Fourth Amendment's probable 
cause requirement, police officers, when executing a search warrant, 
are permitted to temporarily restrain third parties, absent probable 
cause for arrest, including by using handcuffs.
  Holding such detentions to be reasonable, the Supreme Court 
emphasized the fact of prime importance: that the search was authorized 
by a neutral magistrate's finding of probable cause to search the 
premises. That is not what the probation officer comes into that place 
with. They are not a law enforcement officer.
  In caution to our efforts to recognize and respect these fine men and 
women, let us find a different way, and let us adhere to the 
established law that will protect the probation officer and all those 
whom he or she may come in contact with.
  Again, with great respect for law enforcement and those who serve, I 
would ask my colleagues to recognize the broadness and vagueness of 
this legislation and oppose it.
  Mr. Speaker, I yield back the balance of my time.

                              {time}  0945

  Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, we have heard many arguments in opposition to this 
legislation. We have carefully explained how each of these arguments is 
unfounded.
  I simply want to again urge my colleagues to vote for this very 
simple, yet much-needed, piece of bipartisan legislation. Support the 
men and women of law enforcement with your vote. Support the Fraternal 
Order of Police who wrote a letter supporting this bill.
  Mr. Speaker, I enter in the Record the FOP letter.

                                                National Fraternal


                                              Order of Police,

                                 Washington, DC, 15 February 2017.
     Hon. David G. Reichert,
     House of Representatives,
     Washington, DC.
       Dear Representative Reichert: I am writing on behalf of the 
     members of the Fraternal Order of Police to advise you of our 
     support for H.R. 1039, the ``Probation Officer Protection 
     Act.'' This legislation will amend

[[Page H4367]]

     section 3606 of Title 18, United States Code, to grant 
     probation officers authority to arrest hostile third parties 
     who obstruct or impede a probation officer in the performance 
     of official duties.
       Probation officers supervise men, women and juveniles who 
     are convicted of a crime. Instead of a judge sentencing these 
     offenders to prison, the judge sentences them to close 
     supervision while continuing to live and work with the 
     general public. A probation officer's job title comes with an 
     inherent element of danger due to the supervision of 
     offenders such as drug addicts, sexual offenders and domestic 
     violence offenders who could turn violent at any time. 
     Offenders are often intimidated by the amount of power a 
     probation officer has over their freedom. If they feel the 
     officer will recommend a prison sentence or report illegal 
     activity, which may lead to a prison sentence, they may try 
     to eliminate this threat by harming the officer.
       When probation officers are accosted by a violent third 
     party, they are forced to retreat because they have no third-
     party arrest authority. They also cannot assist any police 
     officer at the scene who may have been called to assist. This 
     subjects everyone involved in the situation to greater risk 
     and can result in the loss of evidence, the escape of an 
     offender, or harm to an individual.
       In the past, offenders typically reported to the probation 
     officer's office for scheduled visits. Now many probation 
     officers are required to make home visits where the offender 
     may have easy access to weapons. While the officer may carry 
     a gun, and have armed back up in some cases, often he or she 
     will go into the home or workplace alone without knowing 
     anything about other persons at the site.
       For these reasons, this authority is needed and we are 
     proud to support your bill and look forward to working with 
     you on it.
       On behalf of more than 330,000 members of the Fraternal 
     Order of Police, I want to thank you for introducing this 
     legislation and amendment. If I can be of further help, 
     please do not hesitate to contact me or my Senior Advisor, 
     Jim Pasco, in my Washington office.
           Sincerely,
                                                 Chuck Canterbury,
                                               National President.

  Mr. GOODLATTE. Mr. Speaker, support the Federal Law Enforcement 
Officers Association, who called H.R. 1039 a ``critical officer safety 
measure'' in their letter of endorsement.
  Support the National Association of Police Organizations, who said 
H.R. 1039 is a ``sensible solution that ensures the safety of the 
officer, the probationer, and the community.''
  Mr. Speaker, I enter in the Record these letters.

                                                       Federal Law


                             Enforcement Officers Association,

                                     Cabin John, MD, May 17, 2017.
     Hon. Paul Ryan,
     Speaker of the House, House of Representatives,
     Washington, DC.
     Hon. Nancy Pelosi,
     Minority Leader, House of Representatives,
     Washington, DC.
       Dear Mr. Speaker and Leader Pelosi: I am writing on behalf 
     of the nearly 27,000 members of the Federal Law Enforcement 
     Officers Association to advise you of our strong support for 
     H.R. 1039, the ``Probation Officer Protection Act,'' and to 
     express our appreciation for the Congress's consideration of 
     this important officer safety measure during National Police 
     Week. FLEOA opposes the amendment that will be offered on the 
     floor to sunset the authority provided by the bill, as you 
     cannot put a stopwatch on critical law enforcement officer 
     protection measures such as H.R. 1039.
       The ``Probation Officer Protection Act'' is a critical 
     officer safety measure. At a time when U.S. Probation 
     Officers have seen their workloads increase due to changes in 
     sentencing policy and are being asked to ``do more with the 
     same,'' ensuring that they have the means to protect 
     themselves when placed in harm's way is paramount. H.R. 1039 
     will fully authorize a U.S. Probation Officer to arrest any 
     third party who violates 18 USC 111. This statute has been on 
     the books since the 1940s and makes it a crime for any person 
     to forcibly assault, resist, intimidate, or interfere with 
     any federal officer in the performance of their official 
     duties. Current law, however, only allows Probation Officers 
     to make arrests of individuals on probation or under 
     supervised release who violate 18 USC 111. This authority 
     does not extend to ``third parties,'' which could include a 
     former associate of the offender or an unidentified member of 
     the community. In many instances third parties are well aware 
     that a federal officer's authority is limited to individuals 
     on supervision, and when a third party does impede or assault 
     a U.S. Probation Officer, the Officer's only recourse is to 
     retreat and call for local law enforcement. While in major 
     cities local law enforcement may respond depending on 
     availability, the same is not true for U.S. Probation 
     Officers who work in rural communities where response by 
     local law enforcement may be a single officer or none. This 
     places Probation Officers at even greater risk, particularly 
     in those situations where retreat is not even a reasonably 
     safe alternative.
       During the forthcoming debate on this bill, there will 
     undoubtedly be those who go to great lengths to demean U.S. 
     Probation Officers as something less than ``real'' law 
     enforcement officers or to diminish the hazards that they 
     face. Some may also raise inchoate objections about the 
     constitutionality of H.R. 1039. For example, you will hear 
     that Congress cannot extend Executive Branch police powers to 
     the Judicial Branch, despite the fact that it was Congress 
     that established the U.S. Supreme Court Police that resides 
     directly across the street from the U.S. Capitol. Not only 
     are such statements factually inaccurate, they display a 
     basic lack of understanding about those who serve our nation 
     as U.S. Probation Officers and the purposes behind the 
     ``Probation Officer Protection Act.''
       Make no mistake: U.S. Probation Officers are fully trained 
     federal law enforcement officers. They attend basic training 
     at the National Training Academy at the Federal Law 
     Enforcement Training Center in Charleston, SC, and receive 
     ongoing in-service training throughout the year. Their 
     training covers everything from firearms regulation and 
     safety and defensive tactics to handcuffing, the use of 
     force, de-escalation training, and reality-based scenario 
     training. It may be difficult for some to acknowledge, but 
     there is an inherent risk to the work U.S. Probation Officers 
     do--a risk that often outweighs that of traditional law 
     enforcement. They do not enter into sterile offices, but 
     often into environments that are uncertain. They are required 
     to have frequent and regular contacts in the home and 
     community and knowingly come into daily contact with 
     individuals who have a history of violence, mental health 
     issues, problems with authority, and troubles with substance 
     abuse. U.S. Probation Officers are not able to anticipate 
     what is going to occur during all contacts. There are and 
     have been occasions when U.S. Probation Officers are 
     threatened and/or attacked by third parties and they need the 
     ability to take an affirmative step to protect themselves.
       U.S. Probation Officers are a unique profession. They have 
     a knowledge base in law and human behavior, and a mix of 
     skills in investigation, communication, and analysis. They 
     strive to make our communities safer, to make a positive 
     difference in the lives of those they serve, and promote 
     fairness in process and excellence in service. But as the 
     volume of approved searches they must conduct has markedly 
     increased over the past year due to changes in sentencing 
     policy, the absence of any authority to restrain or direct 
     the movements of third parties places U.S. Probation Officers 
     at a greater and unnecessary risk of physical harm. H.R. 1039 
     provides a modest expansion of U.S. Probation Officers' 
     existing arrest authority to cover only violations of 18 USC 
     111. It does not in any way provide them ``peace officer'' 
     status or grant them the same general arrest authority that 
     state-level probation officers enjoy in many jurisdictions. 
     Granting U.S. Probation Officers the authority to arrest 
     third parties would not change who they are and what they are 
     seeking. Nor will it interfere with or otherwise diminish 
     U.S. Probation Officers' use of the de-escalation techniques 
     that are the hallmark of their profession. It would simply 
     afford them another tool, another avenue, if ever needed.
       In the end, this legislation will enhance officer safety 
     while also protecting probationers and third parties by 
     preventing obstruction from escalating to actual violence. 
     Thank you in advance for your consideration of this 
     legislation and for helping U.S. Probation Officers do their 
     job more safely by passing H.R. 1039, the ``Probation Officer 
     Protection Act.''
           Sincerely,
                                                 Nathan R. Catura,
     National President.
                                  ____


                                           National Association of


                                   Police Organizations, Inc.,

                                     Alexandria, VA, May 17, 2017.
     Hon. Paul Ryan,
     Speaker, House of Representatives,
     Washington, DC.
       Dear Speaker Ryan: On behalf of the National Association of 
     Police Organizations (NAPO), I am writing to advise you of 
     our support for H.R. 1039, the Probation Officer Protection 
     Act.
       NAPO is a coalition of police units and associations from 
     across the United States that serves to advance the interests 
     of America's law enforcement through legislative and legal 
     advocacy, political action, and education. Founded in 1978, 
     NAPO now represents more than 1,000 police units and 
     associations, 241,000 sworn law enforcement officers, and 
     more than 100,000 citizens who share a common dedication to 
     fair and effective crime control and law enforcement.
       Probation officers in the United States have experienced a 
     significant increase in their workloads due to the recent 
     changes in federal sentencing guidelines, but they are being 
     asked to do more with the same amount of resources. With 
     these officers spread thin, it is important that they have 
     every means available to protect themselves when put in 
     harm's way. The Probation Officer Protection Act narrowly 
     expands current law to grant federal probation officers the 
     authority to arrest any third party who forcibly assaults, 
     resists, intimidates, or interferes with the officer in the 
     performance of his or her official duties.
       Currently, when a federal probation officer is assaulted or 
     threatened by a third party, they must retreat and call local 
     law enforcement. This not only places the probation officer 
     in danger, particularly if there is no way to withdraw from 
     the situation, but it is a strain on local law enforcement 
     agencies,

[[Page H4368]]

     many of which do not have enough officers just to patrol 
     their communities. The Probation Officer Protection Act is a 
     sensible solution that ensures the safety of the officer, the 
     probationer and the community.
       We appreciate Congress considering this important officer 
     safety bill during National Police Week. If we can provide 
     any assistance, please feel free to contact me.
           Sincerely,
                                               William J. Johnson,
                                               Executive Director.

  Mr. GOODLATTE. Mr. Speaker, collectively, these organizations 
represent over half a million sworn law enforcement officers. On this 
last day of National Police Week, let's join them in supporting this 
bill.
  In this body, Members tend to frequently use the term ``common 
sense'' to describe a piece of legislation. I don't think many more 
pieces of legislation are as common sense as this bill.
  It really boils down to this question: Should a law enforcement 
officer be able to arrest the individual who forcibly assaulted, 
resisted, opposed, impeded, intimidated, or interfered with that 
officer?
  That is it. That is all we are talking about today. Common sense 
tells us that the answer is a resounding ``yes.''
  It has been insinuated that probation officers aren't real law 
enforcement and lack the training to make arrests. I think the brave 
men and women who serve as Federal probation officers, who have 
received extensive training, and have ongoing training requirements as 
part of their jobs, might disagree with that insinuation.
  Further, the Administrative Office of the United States Courts and 
its Federal Probation and Pretrial Academy offer nationally 
standardized training programs and advanced training programs targeting 
specialized areas of supervision. Common sense tells us that these 
officers are qualified to make arrests.
  Opponents of this bill would prefer to have these law enforcement 
officers retreat when confronted by third parties. Let's think about 
what some of the consequences of retreat might mean. If forced to 
retreat, that officer is forced to terminate interaction with a 
probationer who may urgently require services, such as substance abuse 
or mental health treatment. It also means contraband, such as firearms 
or narcotics, which could have been removed by the parole officer, 
remains in the community.
  In short, the consequences of retreat place public safety in 
jeopardy. Common sense tells us that retreat is not a viable option.
  There is nothing revolutionary going on here. There is no new Federal 
crime being added. This bill simply says that when someone forcibly 
assaults, resists, opposes, impedes, intimidates, or interferes with a 
probation officer, that probation officer can arrest that individual.
  It is already a crime to engage in the behavior I just described. An 
individual who commits that act is going to get arrested. All we are 
debating today is who puts the handcuffs on the arrestee. Common sense 
tells us that the officer who was assaulted should have the authority 
to make the arrest.
  Use common sense. Support H.R. 1039, the Probation Officer Protection 
Act of 2017, so that Federal probation officers can do their jobs 
safely and effectively.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate on the bill has expired.


               Amendment No. 1 Offered by Ms. Jackson Lee

  Ms. JACKSON LEE. Mr. Speaker, I have an amendment at the desk.
  The SPEAKER pro tempore. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Add, at the end of the bill, the following:

     SEC. 3. COMPTROLLER GENERAL REPORT ON NEW AUTHORITY OF 
                   PROBATION OFFICERS.

       Not later than 2 years after the effective date of this 
     act, the Comptroller General of the United States shall 
     complete a study, and report to the Committee on the 
     Judiciary of the House of Representatives and the Committee 
     on the Judiciary of the Senate on the results thereof, on the 
     arrest authority provided to probation officers under 
     subsection (b) of section 3606 of title 18, United States 
     Code, as added by section 2 of this Act. Such study shall 
     include information about--
       (1) any instance of an abuse of power in the exercise of 
     such arrest authority;
       (2) any complaints filed about the exercise of such arrest 
     authority; and
       (3) any harm resulting from the exercise of such arrest 
     authority, including any civil action alleging the violation 
     of a civil right in the exercise of such arrest authority.

     SEC. 4. SUNSET OF ARREST AUTHORITY.

       (a) In General.--Subject to subsection (b) of this section, 
     section 3606 of title 18, United States Code, is amended by 
     striking subsection (b).
       (b) Effective Date.--Subsection (a) of this section shall 
     take effect on the date that is 30 months after the effective 
     date of this Act.

  The SPEAKER pro tempore. Pursuant to House Resolution 324, the 
gentlewoman from Texas (Ms. Jackson Lee) and a Member opposed each will 
control 5 minutes.
  The Chair recognizes the gentlewoman from Texas.
  Ms. JACKSON LEE. Mr. Speaker, my amendment preserves the trust and 
integrity between probation officers and supervisees while ensuring 
public safety.
  While I understand the intended goal in the underlying bill, there 
are some unique concerns that it raises, and my amendment addresses and 
will, I believe, provide additional information.
  My amendment calls for a comprehensive study by the GAO of the newly 
granted authority to determine the impact on probationers, supervisees, 
third parties, and the overall probation practice, if that authority is 
so granted by the vote of this body. This study shall sunset at 30 
months after the effective date of this act.
  These are concerns that we should all have if we want to ensure that 
this bill works and reaches its intended purpose, if it is voted on by 
my colleagues and passes.
  In allowing the study, we will ascertain information that we 
otherwise would not have but would have learned had we proceeded with a 
hearing on this bill.
  This amendment will focus on the bill's impact in application. The 
study will first review instances of abuse of power in the exercise of 
such arrest authority.
  Second, it will document any complaints made and/or filed regarding 
the exercise of the probationer's arrest authority of third parties.
  Third, it will study any harm resulting from the exercise of such 
arrest authority, including any civil action alleging the violation of 
a civil right in the exercise of this expanded authority.
  I am confident that my colleagues would agree that public safety is 
paramount, the safety of the probation officer is paramount, the safety 
of those who are in the immediate custody of the probationer, and, of 
course, those other individuals.
  We want this to be a sound policy, so implementing sound policies 
will foster trust and, thereby, public safety.
  I want to thank the Rules Committee for making my amendment in order, 
and I hope my colleagues will join me in supporting the Jackson Lee 
amendment.
  While I understand the intended goal in the underline bill, there are 
some unique concerns that it raises and my amendment addresses and will 
fix those concerns.
  My amendment calls for a comprehensive study by GAO of the newly 
granted authority, to determine its impact on probationers, 
supervisees, third parties and the overall probation practice. This 
study shall sunset at 30 months after the effective date of this act.
  These are concerns we should all have if we want to ensure that this 
bill works and reaches its intended purpose effectively.
  In allowing the study, we will ascertain information that we 
otherwise, do not have but would have learned had we proceeded with a 
hearing on this bill.
  This amendment will focus on the bill's impact in application.
  The study will first review instances of any abuse of power in the 
exercise of such arrest authority.
  Second, it will document any complaints made and/or filed regarding 
the exercise of probation officer arrest authority of third parties.
  Third, it will study any harm resulting from the exercise of such 
arrest authority, including any civil action alleging the violation of 
a civil right in the exercise of this expanded authority.
  I am confident that my colleagues would agree that public safety is 
paramount and that we should do everything we can to ensure that we are 
implementing sound policies that will foster trust and thereby, public 
safety.
  The Rules Committee saw it fitting to rule my amendment in order, and 
now I hope my colleagues will join me in supporting this amendment.

[[Page H4369]]

  Mr. Speaker, I reserve the balance of my time.
  Mr. RATCLIFFE. Mr. Speaker, I claim the time in opposition to the 
amendment.
  The SPEAKER pro tempore. The gentleman from Texas is recognized for 5 
minutes.
  Mr. RATCLIFFE. Mr. Speaker, I strongly oppose the amendment offered 
by the gentlewoman from Texas (Ms. Jackson Lee), my friend.
  Her amendment would sunset the very modest, yet necessary and 
appropriate, authority that we are seeking to grant Federal probation 
officers today. No valid reason has been given for the need to sunset 
this provision. In fact, ample evidence is available showing why 
probation officers need this authority to perform their duties safely 
and effectively.
  Just last year, over one-third of the safety-related incidents 
reported by Federal probation and pretrial staff involved third parties 
encountered by officers while performing their official duties.
  For example, during an unannounced home visit to an apartment by 
officers, as they approached the apartment, two unidentified subjects 
entered the hall from another unit. Officers knocked on the resident's 
door and there was no answer. One third party stated: ``Hey, five-oh, 
who are you looking for?'' And they began approaching the officers in a 
menacing manner.
  One of the third parties pulled out a cell phone and started 
videoing, yelling obscenities, and making other statements to the 
officers. Another individual, in response to the commotion, entered the 
hallway possessing a knife and drew it as he moved toward the officers.
  These types of threats, Mr. Speaker, are very real and very dangerous 
to the brave men and women who serve the criminal justice system as 
Federal probation officers. The types of threats that exist today will 
continue to exist in 2\1/2\ years when the gentlewoman's amendment 
would sunset the proposed arrest authority.
  I want to make one thing very clear, Mr. Speaker. The bill before us 
today does not create a new Federal crime. It is already a Federal 
crime to assault, resist, oppose, impede, intimidate, or interfere with 
a Federal probation officer for which an individual can be placed under 
arrest. The only thing the bill today does is say that probation 
officers can make that arrest.
  And why shouldn't they be able to make that arrest?
  Probation officers have a unique role in our criminal justice system, 
balancing the skills of a law enforcement officer with the skills of a 
social worker. In addition to the 6 weeks of initial training, Federal 
probation officers are required to complete at least 40 hours of 
continuing education and training annually.
  I don't think it is a radical idea to suggest that Federal law 
enforcement officers should be able to arrest someone who commits a 
Federal crime by interfering with the duties being performed by that 
officer.
  Let them do their part in keeping the public safe. Let them do their 
jobs safely. Let them do their jobs effectively.
  Mr. Speaker, I oppose the amendment, and I reserve the balance of my 
time.
  Ms. JACKSON LEE. Mr. Speaker, I believe this amendment is a very 
important amendment, and I believe that it provides the kind of 
guidance that is necessary because it is a clear ascertaining of the 
impact.
  Remember, we are talking about possible constitutional ramifications. 
Unreasonable search and seizure. We are talking about not having 
assaults against police officers. There is a law that will already 
provide for that protection, as well as the fact that probation 
officers who are not police officers can, in fact, have the ability of 
law enforcement backup or support.
  In addition, we realize that there is a greater burden on law 
enforcement officers in an arrest situation. That burden is not on the 
probation officer because they are not a law enforcement officer.
  It is important for this study to be enacted so that we have the 
facts. Do we not, as legislators, want to have the facts regarding the 
Constitution and the impact it may have?
  So I would ask my colleagues to support the Jackson Lee amendment. It 
is, in fact, not an amendment that negates, if this bill passes, the 
acts of the probation officer. But what it does do is study whether 
there is an enhanced impact and whether grandmother, mother, a little 
child, an aunt, or an uncle, in the sanctity of their home, are 
unreasonably detained or arrested.
  We as Americans should at least be concerned about the rights of our 
fellow citizens and be able to respect them in their home. A probation 
officer has the right to call in a law enforcement officer if the 
actions of the home, or wherever that individual happens to be, gets in 
a way that interferes with his or her ability to arrest his 
probationer.
  Let me remind everyone that the relationship between a probation 
officer and a probationer is a constructive one, one of rehabilitation. 
And, sadly, if on one incident, or 39 incidents, or 3 percent of the 
incidents, if something occurs, that probation officer has the right to 
be able to call a law enforcement officer to assist.
  This study is a constructive, forthright study to help us better 
protect the rights of citizens and of the Constitution of the United 
States.
  Mr. Speaker, I include in the Record letters from the Federal 
Defenders of New York, The Leadership Conference on Civil and Human 
Rights, and the ACLU opposing the underlying bill.

                                              Federal Defenders of


                                               New York, Inc.,

                                     New York, NY, March 30, 2017.
     Re Probation Officer Protection Act of 2017 (H.R. 1039)
     Hon. Bob Goodlatte,
     Chair, House Judiciary Committee, Washington, DC.
     Hon. John Conyers, Jr.,
     Ranking Member, House Judiciary Committee, Washington, DC.
     Hon. Trey Gowdy,
     Chair, House Subcommittee on Crime, Terrorism, Homeland 
         Security, and Investigations, Washington, DC.
     Hon. Sheila Jackson Lee,
     Ranking Member, House Subcommittee on Crime, Terrorism, 
         Homeland Security, and Investigations, Washington, DC.
       Dear Mr. Goodlatte, Mr. Conyers, Mr. Gowdy and Ms. Jackson 
     Lee: We write on behalf of the Federal Public and Community 
     Defenders in response to inquiries for our views on H.R. 
     1039, which would amend 18 U.S.C. Sec. 3606 to give probation 
     officers the authority to arrest, without a warrant, persons 
     not subject to court supervision if there is probable cause 
     to believe that the person has impeded or interfered with a 
     probation officer in violation of 18 U.S.C. Sec. 111. The 
     bill was introduced last Congress, and we understand that 
     there has been discussion of it being introduced again.
       We oppose the bill because it would violate the Separation 
     of Powers, would invite Fourth Amendment violations, is 
     unnecessary for purposes of supervision or safety, and would 
     instead escalate the risk of harm to all concerned and 
     undermine effective supervision. The arrest or detention (to 
     any degree) of persons not subject to court supervision 
     should be left to law enforcement officers.


                                Summary

       The bill would violate the Separation of Powers. Probation 
     officers serve as administrative units employed by Article 
     III courts. Congress may not assign to them the executive 
     function of enforcing a criminal statute against private 
     citizens not subject to court supervision. The bill would 
     also undermine the integrity of the Judicial Branch by 
     putting courts in the position of ruling on the 
     constitutionality of arrests by their own agents, who are 
     also interested arresting officers and alleged victims of an 
     offense.
       The bill would create serious Fourth Amendment problems. 
     Assuming probation officers would use the bill's arrest 
     authority only to formally arrest persons believed to have 
     violated Sec. 111, the bill would result in Fourth Amendment 
     violations. Because Sec. 111 is notoriously unclear, 
     probation officers would inevitably arrest persons who are 
     merely ``uncooperative'' but have not actually violated the 
     statute. To allay concerns about giving probation officers 
     the equivalent of police power over private citizens, the 
     Judicial Conference assures Congress that probation officers 
     would rarely make formal arrests but would instead exercise a 
     ``lesser included'' power to control or temporarily restrain 
     third parties short of formal arrest. But the Fourth 
     Amendment would not permit probation officers to exercise 
     such ``lesser included'' power. In holding that the Fourth 
     Amendment allows police officers to temporarily restrain 
     third parties during a search, the Supreme Court deemed it 
     ``of prime importance'' that the officer had a warrant based 
     on probable cause to search the premises. The bill would not 
     change the fact that probation officers conduct searches 
     without a warrant based on probable cause. Thus, any 
     restraint of a third party by a probation officer absent 
     probable cause to arrest would violate the Fourth Amendment.

[[Page H4370]]

       The bill is unnecessary. Probation officers have authority 
     under current law to search the homes of people they 
     supervise (without a warrant or probable cause) and to arrest 
     them for violating conditions of supervision (with probable 
     cause). Pursuant to Judiciary Policy, probation officers have 
     long relied on trained law enforcement officers to provide 
     support during searches, including by managing third parties 
     not under probation officers' supervision. No evidence has 
     been presented, and we have found none, of any instance in 
     which law enforcement officers have not assisted when asked, 
     or in which anyone has been hurt by a third party during a 
     search. Allowing probation officers to restrain and arrest 
     third parties would likely increase, not diminish, any risk 
     of harm.
       The bill would undermine effective supervision. The bill 
     represents a retreat from the current constructive role of 
     probation officers in reintegrating offenders into society. 
     If probation officers assumed the role of police, directing 
     and restraining, or arresting, family and friends, progress 
     in individual cases and the system as a whole would be 
     undermined.


                               Background

       Under current law, probation officers have limited special 
     authority to conduct searches and seizures of persons on 
     probation or supervised release for the sole purpose of 
     assisting the district courts in supervising those persons. 
     They are permitted, with or without a warrant, to conduct a 
     search of a supervisee's home based only on ``reasonable 
     suspicion'' that there is evidence on the premises that the 
     supervisee has violated a condition of his or her 
     supervision, and to arrest a supervisee whom they have 
     ``probable cause to believe has violated a condition'' of his 
     or her supervision.
       Judiciary Policy directs probation officers, in planning a 
     search, to ``strongly consider requesting assistance from law 
     enforcement officers for protection, instruction, and taking 
     possession of contraband during a search,'' and to terminate 
     any search ``if it is unsafe for the [probation] officer to 
     continue.''
       Probation officers are further directed that they ``may not 
     restrain third parties during a search.'' This is so because 
     there is no authority for probation officers to detain third 
     parties. The Supreme Court's decisions holding that the 
     Fourth Amendment allows police officers to detain third 
     parties during a search do not apply to probation officers, 
     who both lack general law enforcement authority, and conduct 
     searches in the absence of a finding by a neutral magistrate 
     of probable cause to search the premises. Instead, probation 
     officers rely on law enforcement officers to manage third 
     parties if needed, thereby avoiding Fourth Amendment 
     violations and reducing any risk of harm.


           A. The bill would violate the Separation of Powers

       H.R. 1039 would authorize probation officers to arrest, 
     without a warrant, a person not subject to supervision if 
     there is probable cause to believe the person has interfered 
     with or impeded a probation officer ``while in the 
     performance of his or her official duties'' in violation of 
     18 U.S.C. Sec. 111. By its terms, the statute would authorize 
     probation officers to make such arrests at any time or 
     place--during a search of a supervisee's home, on the street 
     or at a place of business, or during a meeting at the 
     probation officer's office.
       By authorizing probation officers to enforce Sec. 111 
     against private citizens not subject to court supervision, 
     H.R. 1039 would violate the Separation of Powers. Probation 
     officers are employed by the Judicial Branch to serve as 
     administrative units of the district court, appointed by the 
     court and removable by the court. A probation officer 
     performs no Article III function, but serves a statutory duty 
     to assist the court in supervising offenders.
       Detecting crimes and enforcing criminal laws, in contrast, 
     are ``quintessential law enforcement functions vested in the 
     Executive Branch.'' Just as Congress may not confer executive 
     duties ``of a nonjudicial nature'' on Article III judges, 
     Congress may not enlist an administrative arm of the Judicial 
     Branch to perform an executive function.
       This is not only a formalistic concern. A probation officer 
     who has arrested a private citizen for impeding the probation 
     officer in his duties would naturally have a direct, personal 
     interest in both the legality of the arrest and the outcome 
     of any resulting criminal case. The court, in turn, is the 
     probation officer's employer. When ruling on a challenge to 
     the constitutionality of an arrest by a probation officer, 
     the court would thus review the actions of its own agent, who 
     is also the interested arresting officer and alleged victim 
     of an offense. By putting the court in the triple position of 
     judge, vicarious victim, and arresting agent of ordinary 
     citizens, H.R. 1039 would undermine the integrity of the 
     Judicial Branch.


       B. The bill would create serious Fourth Amendment problems

       Subject to ``only a few specifically established and well 
     delineated exceptions,'' the Fourth Amendment prohibits 
     police officers from detaining persons (to any degree) absent 
     probable cause or ``prior approval by judge or magistrate.'' 
     Even assuming probation officers used the bill's arrest 
     authority for no other purpose but to make formal arrests 
     based on probable cause that a person has violated Sec. 111, 
     the bill would result in unconstitutional detentions.
       Section 111 prohibits ``forcibly'' assaulting, resisting, 
     opposing, impeding, intimidating, or interfering with an 
     officer ``while engaged in'' the performance of official 
     duties. While one would think that ``forcible'' conduct is 
     easy to recognize in this context, the term is notoriously 
     ambiguous, involving a ``troublesome question of degree.'' No 
     physical contact is required even for assault, and 
     ``forcibly'' has been held to cover such conduct as a 
     ``fighting stance'' with an ``uncooperative attitude,'' but 
     not to cover running away and struggling when tackled by 
     police. The statute is ``not a model of clarity,'' 
     ``inartfully drafted,'' and leaving ``major ambiguities,'' 
     often requiring many pages of legal analysis to decipher.
       If even the courts find the statute unclear, a probation 
     officer surely cannot be expected to make an accurate on-the-
     scene assessment of probable cause that a person has violated 
     it. Some probation officers would inevitably use their new 
     authority to arrest persons who are merely 
     ``uncooperative''--such as by refusing to identify 
     themselves, declining to open a door, or attempting to leave 
     the scene of a search--but who have not violated Sec. 111. 
     The bill would thus invite Fourth Amendment violations.
       To allay potential concerns about giving probation officers 
     the equivalent of police power over private citizens, the 
     Judicial Conference assures Congress that probation officers 
     would rarely make formal arrests for violations of Sec. 111. 
     Instead, they would use a purported ``lesser included'' 
     authority, during ``searches and other work-related contacts 
     (e.g., home visits),'' to ``verbally or if necessary by 
     temporarily restraining'' (i.e., with handcuffs) 
     ``uncooperative or hostile'' third parties short of arrest. 
     Probation officers would not need probable cause to believe 
     that a third party had violated Sec. 111 in order to exercise 
     this ``lesser-included'' authority; instead, they would 
     direct, control and temporarily detain third parties whom 
     they merely suspect have violated or will violate Sec. 111, 
     or believe to present a ``potential safety risk.''
       But the Fourth Amendment does not permit probation officers 
     to exercise this ``lesser included'' power. Under an 
     exception to the Fourth Amendment's probable cause 
     requirement, police officers, when executing a search 
     warrant, are permitted to temporarily restrain third parties 
     absent probable cause for arrest, including by using 
     handcuffs. In holding such detentions to be ``reasonable,'' 
     the Supreme Court emphasized the fact--``of prime 
     importance''--that the search was authorized by a neutral 
     magistrate's finding of probable cause to search the 
     premises.
       Probation officers, however, conduct searches without a 
     warrant based on a finding of probable cause by a neutral 
     magistrate, and they conduct home visits with no suspicion at 
     all. For these reasons, the Administrative Office of the U.S. 
     Courts in 2007 reaffirmed its policy that probation officers 
     ``may not restrain'' ``restrict[] the movement of third 
     parties'' present during a search. Under established Fourth 
     Amendment law, third parties are ``under no obligation to 
     cooperate and must be free to leave.'' The AO's General 
     Counsel correctly noted that ``increas[ing] [probation] 
     officers' statutory arrest authority under Sec. 3606'' would 
     not solve the Fourth Amendment problem because probation 
     officers would still conduct searches without a warrant based 
     on probable cause.
       Likewise, H.R. 1039 would not change the fact that 
     probation officers conduct searches without a warrant based 
     on a finding of probable cause, the factor ``of prime 
     importance'' to the constitutionality of police officers 
     restraining third parties during a search. As a result, any 
     restraint or control of third parties by probation officers 
     absent grounds for arrest would be an unconstitutional 
     detention. The bill does not obviate this fundamental Fourth 
     Amendment problem.


                       C. The bill is unnecessary

       U.S. Probation and Pretrial Services reported that in both 
     2014 and 2015, probation officers encountered third patties 
     described as ``uncooperative'' (defined to include refusal to 
     identify themselves, to come out of a closed room, or to 
     remain in a designated area) in only 3 percent of reported 
     searches. Only two incidents of any significance were 
     reported. In one, the supervisee's mother drove her car 
     toward two officers ``in an apparent attempt to hit them,'' 
     but law enforcement officers were present and able to take 
     any action needed. In the other, a third party ``refused to 
     come out'' of a closed room, but law enforcement officers 
     were present, forced the door open, and found the person 
     swallowing marijuana cigarettes.
       Nonetheless, the Federal Law Enforcement Officers 
     Association (``FLEOA'') claims that there is, a new 
     ``heightened danger in field and office contacts'' and that 
     giving probation officers third-party arrest authority is the 
     ``only [] solution.'' It claims that probation officers' 
     ability to enlist law enforcement officers ``provides little, 
     if any, help'' because sometimes only one police officer is 
     available. It gives three anecdotal examples, but they do not 
     support the FLEOA's argument, and in fact demonstrate that 
     the bill is not the ``only solution,'' much less a safe 
     solution.
       In the Northern District of Alabama, probation officers 
     came to see their supervisee, but he was not at home. They 
     were leaving the premises when they encountered his father, 
     who was intoxicated, made threats, and threw an empty liquor 
     bottle at their car.

[[Page H4371]]

     The probation officers drew their weapons, called 911, got 
     behind their vehicle, then drove away. The FLEOA states that 
     with arrest authority, the probation officers ``would have 
     taken the third party into custody for assaulting them and 
     for damaging government property.'' But the FLEOA does not 
     explain why this would have been necessary for the purpose of 
     supervising the son, who was not there, or to ensure anyone's 
     safety. The police were fully capable of subduing or 
     arresting the father, and most likely did, though that detail 
     is omitted. Had the probation officers confronted the father, 
     with guns drawn, they, the father, or innocent bystanders, 
     including the offender's cooperative mother, may well have 
     been hurt.
       In the District of Utah, probation officers knocked on the 
     door of their supervisee's residence and were told by his 
     girlfriend that he was not at home and that no one else was 
     there. The probation officers ``ultimately encountered two 
     third party felons hiding in separate locations,'' one of 
     whom was suspected of homicide. The officers ``issued their 
     verbal commands,'' and the man became confrontational and 
     challenged the officers to ``shoot him.'' The officers 
     retreated, and ``local police ultimately subdued the third 
     party and took him into custody.'' Again, the FLEOA does not 
     explain how arrest authority would have increased the 
     probation officers' or public safety any better than the 
     police in fact accomplished.
       In the Southern District of New York, probation officers 
     looking to confirm that their supervisee did not live at his 
     reported residence were ``confronted'' outside the residence, 
     where the supervisee apparently did not live, with ``a 
     belligerent, unknown, third party.'' A physical altercation 
     ensued, when ``another third party charged forward swinging a 
     pipe wrench.'' The officers used pepper spray and left. The 
     FLEOA asserts that the probation officers ``did not have the 
     option to control the third parties,'' but instead were 
     ``forced to retreat.'' But the FLEOA does not explain how 
     controlling the third parties, which would likely have 
     escalated a potentially dangerous confrontation, was safer 
     than retreat, much less the ``only solution.'' The probation 
     officers' mission was not urgent, and they were free to 
     return with police support.
       The Judicial Conference provides no empirical evidence or 
     even anecdotal examples illustrating the purported need for 
     H.R. 1039. It says that, ``in the absence of other law 
     enforcement officers acting in a supporting role,'' a 
     supervisee can work with a ``hostile or uncooperative'' third 
     party ``to conceal violations of the terms of supervision, or 
     even new criminal activity.'' But the solution is the very 
     one suggested and that has been directed by Judiciary Policy 
     and followed by probation officers all along: obtain support 
     from law enforcement officers.
       There is not a single instance cited in the U.S. Probation 
     Search-and-Seizure reports, in the FLEOA's proposal or recent 
     letter, or in the Judicial Conference's proposal or recent 
     letter, in which probation officers requested law enforcement 
     assistance in advance, or called for assistance from the 
     scene, and law enforcement declined to assist or failed to 
     show up. One of the dangers of the bill is that probation 
     officers would not request law enforcement support, thinking 
     they can handle any problems with their arrest authority. But 
     potential problems are best averted by law enforcement 
     officers, who not only have arrest authority, but ``provide 
     perimeter security, manage third parties, provide special 
     services such as K9 support, and conduct initial security 
     sweeps.''


           D. The bill would undermine effective supervision

       H.R. 1039 represents an unfortunate retreat from the 
     current role of probation officers, which has evolved from an 
     oppositional focus on enforcement and punishment to a 
     constructive collaboration aimed at addressing clients' 
     criminogenic needs, reducing their risk of recidivism, and 
     reintegrating them into society. These ``concerted efforts to 
     bring to life state-of-the-art evidence-based supervision 
     practices into the federal system'' coincide with 
     ``[m]easurable decreases in federal recidivism.'' As the 
     Judicial Conference has recognized, supporting the offender 
     ``in efforts to turn away from criminal conduct . . . will 
     necessarily . . . promote public safety.'' And it has 
     cautioned that searches ``may undermine the rapport that an 
     officer has developed with an offender and may hinder the 
     progress that an offender has made.'' We fear that the 
     progress that has been made in individual cases and in the 
     system as a whole would be undermined if probation officers 
     assumed the role of police, directing, restraining and 
     arresting family and friends, and potentially escalating the 
     risk of confrontation and danger to all concerned.
       Thank you for considering our views, and please do not 
     hesitate to contact us if you have any questions.
           Very Truly Yours,
     David Patton,
       Executive Director, Federal Defenders of New York, Co-
     Chair, Federal Defender Legislative Committee.
     Jon Sands,
       Federal Defender, District of Arizona, Co-Chair, Federal 
     Defender Legislative Committee.
                                  ____

                                         The Leadership Conference


                                    on Civil and Human Rights,

                                   Washington, DC, April 26, 2017.

     Oppose H.R. 1039, The Probation Officer Protection Act of 2017

       Dear House Judiciary Committee Member: On behalf of The 
     Leadership on Civil and Human Rights and the 16 undersigned 
     organizations, we urge you to oppose H.R. 1039, the Probation 
     Officer Protection Act of 2017 (POPA), which would broadly 
     authorize federal probation officers to make warrantless 
     arrests of parties not under their supervision. Authorizing 
     probation officers to arrest third parties is unnecessary and 
     dangerous; would inhibit successful reentry; and would 
     implicate serious constitutional concerns. Moreover, there 
     are alternatives available that ensure the protection of 
     probation officers while avoiding the pitfalls of broadly 
     expanding their arrest authority.


                   POPA GIVES BROAD ARREST AUTHORITY

       Under 18 U.S.C. Sec. 3606, a federal probation officer has 
     the authority to arrest a probationer or person on supervised 
     release if the probation officer has probable cause to 
     believe that the probationer has violated a condition of his 
     or her release. Currently, federal probation officers are not 
     permitted to arrest third parties. POPA would amend 18 U.S.C. 
     Sec. 3606 to permit probation officers to arrest ``a person 
     without a warrant if there is probable cause to believe that 
     the person has forcibly assaulted, resisted, opposed, 
     impeded, intimidated, or interfered with a probation officer, 
     or a fellow probation officer, in violation of section 111. 
     In other words, probation officers would be authorized to 
     arrest--without a warrant--any third party on the scene who 
     the officer claims is ``interfering'' with their work. This 
     broad definition of behavior triggering third party arrest 
     authority raises Fourth Amendment concerns.


                          POPA IS UNNECESSARY

       There is no evidence that expanding federal probation 
     officers' warrantless arrest authority is necessary. 
     Statistics from the Federal Law Enforcement Officers 
     Association (FLEOA) show that only 2 percent of searches 
     conducted by federal probation officers in 2013 resulted in 
     any confrontation with ``uncooperative'' third parties. 
     Furthermore, of the 909 searches conducted by federal 
     probation officers in 2013, only seven led to the arrest of a 
     third party when probation officers sought the assistance of 
     local law enforcement. Similarly, in 2014, only 1.7 percent 
     of the 1,566 searches conducted by probation officers 
     involved any ``reportedly uncooperative'' third parties, and 
     only five of these encounters resulted in a third party 
     arrest by local law enforcement.


                        POPA WOULD BE DANGEROUS

       Members of Congress should be reluctant to extend law 
     enforcement-like powers to anyone not trained as a law 
     enforcement officer--and probation officers are not police 
     officers. Federal probation officers complete only six weeks 
     of orientation training. In contrast, new law enforcement 
     officers complete 16 to 21 weeks of classroom training and 
     they often must complete three additional weeks of on-the-
     ground field training. If probation officers try to confront, 
     restrain, and arrest uncooperative third parties, they are 
     likely to heighten the physical danger they face in the 
     field, not reduce it. The threat of arrest--and therefore 
     physical seizure--could increase and escalate the physical 
     confrontations between probation officers and third parties. 
     De-escalation is the desirable outcome--not an extended 
     violent altercation in which probation officers attempt to 
     arrest third parties. In North Carolina, a probationer died 
     while his probation officer attempted to arrest him. 
     Incidents that result in violence or in arguably unlawful 
     arrest may create expensive and time-consuming litigation for 
     the U.S. Probation and Pretrial Services System. Instead of 
     engaging hostile third parties, probation officers should 
     remove themselves from dangerous situations and call for the 
     assistance of trained local law enforcement who are fully 
     prepared to handle hostile situations. Probation officers 
     already do this, and it works.


                 POPA WOULD INHIBIT SUCCESSFUL REENTRY

       Allowing probation officers to arrest third parties would 
     also inhibit successful reentry for probationers. Part of the 
     benefit of the probation system is that it allows 
     probationers to live in society with their families while 
     they serve out their sentences and transition to full reentry 
     into the community. But the prospect of arrest for the 
     individuals who agree to help with the probationer's reentry 
     may deter them from serving as hosts and may make it harder 
     to achieve this transition successfully. Probation officers 
     must have reasonable suspicion to conduct a warrantless 
     search of a probationer's home; absent reasonable suspicion, 
     the probationer or a third party must consent to a search and 
     may limit the consent to search only to public areas. But if, 
     for example, a mother, who has opened her home to her son on 
     probation, blocks a probation officer from searching her 
     bedroom for various reasons (e.g., because her grandchildren 
     are in the bedroom), under POPA she could be arrested for 
     ``interfering'' with the probation officer. Such scenarios 
     could deter people from agreeing to host probationers who

[[Page H4372]]

     have nowhere else to live. This would undermine the probation 
     system. These scenarios also threaten an innocent third 
     party's ability to exercise his or her Fourth Amendment 
     rights.


                     THERE ARE ALTERNATIVES TO POPA

       Since 2006, more than 80 state and county criminal justice 
     departments have adopted the Effective Practices in Community 
     Supervision (EPICS) model to improve relationships between 
     probation and parole officers and their probationers or 
     parolees. EPICS focuses on behavioral change rather than 
     threats of re-incarceration and officers play a more direct 
     role in changing criminal behavior. Reducing the hostility 
     between the probationer and the probation officer will likely 
     cause less hostility between the officer and third parties as 
     well.
       Probation officers can protect themselves by enlisting the 
     help of trained law enforcement. Every jurisdiction gives 
     probation officers the option of calling law enforcement 
     officers for support when conducting home visits, and law 
     enforcement officers can arrest hostile third parties if 
     necessary. In Connecticut, probation officers do not have the 
     authority to make arrests but they may detain an individual 
     for a reasonable time until a law enforcement officer arrives 
     or transport the individual to the nearest location where a 
     law enforcement officer can make an arrest. Calling more 
     fully-trained law enforcement for backup is likely to prevent 
     the situation from becoming more volatile, and it is 
     therefore preferable to probation officer arrests. 
     Additionally, probation officers can be better trained on de-
     escalation techniques and strategies to improve the 
     relationship between the probation officer and the 
     probationer.
       Probation officers' role within our judicial system is to 
     assist with a probationer's transition back into society and 
     report to the court on a probationer's progress. To expand 
     probation officers' authority to allow probation officers to 
     arrest--without a warrant--any person whom they claim is 
     opposing or impeding their work in some way is unnecessary, 
     likely to be dangerous, and would inhibit successful reentry. 
     For the probation system to work, we need the cooperation of 
     the third parties contemplated by this bill--family and 
     friends--assisting probationers and individuals on supervised 
     release as well as the probation officers visiting them. The 
     threat of arrests of third parties in a probationer's 
     environment will erode the goodwill necessary for that vital 
     cooperation.
       For the foregoing reasons, we urge you to oppose the 
     Probation Officer Protection Act of 2017. If you have any 
     questions, please contact Sakira Cook, Senior Counsel, The 
     Leadership Conference.
           Sincerely,
       The Leadership Conference on Civil and Human Rights, The 
     American Civil Liberties Union, AFL-CIO, African American 
     Policy Forum, Council on American-Islamic Relations (CAIR), 
     Drug Policy Alliance, Equity Matters, Lambda Legal, 
     MomsRising.
       NAACP, The NAACP Legal Defense and Educational Fund, 
     National Association of Criminal Defense Lawyers, National 
     Association of Social Workers, National Center for 
     Transgender Equality, The National Council of Churches, 
     StoptheDrugWar.org, Trans United.
                                  ____



                               American Civil Liberties Union,

                                                   April 26, 2017.
     Re ACLU Opposes H.R. 1039, The Probation Officer Protection 
         Act (POPA) of 2017.

     Hon. Bob Goodlatte,
     Chairman, Committee on the Judiciary,
     Washington, DC.
     Hon. John Conyers, Jr.,
     Ranking Member, Committee on the Judiciary,
     Washington, DC.
       Dear Chairman Goodlatte and Ranking Member Conyers: On 
     behalf of the American Civil Liberties Union (ACLU), we urge 
     you to oppose H.R. 1039, the Probation Officer Protection Act 
     (POPA) of 2017, a bill that would amend 18 U.S.C. Sec. 3606 
     to give federal probation officers authority to arrest third 
     parties without a warrant. The ACLU represents almost 2 
     million members, activists, and supporters who are working to 
     advance the ACLU's mission of defending the principles of 
     liberty and equality embodied in our Constitution and our 
     civil rights laws.
       H.R. 1039 is a solution in search of a problem since there 
     is no statistical or evidence otherwise to support the need 
     to expand federal probation officers' arrest authority. 
     Federal probation officers are not at substantial risk from 
     third parties. Additionally, H.R. 1039 creates safety 
     concerns for both probation officers and the community and 
     has the potential of violating a third party's Fourth 
     Amendment rights.


   THE PROBATION OFFICER PROTECTION ACT IS A SOLUTION IN SEARCH OF A 
                                PROBLEM

       There is no evidence suggesting that federal probation 
     officers need arrest authority beyond what is currently 
     authorized by law. One of the bill's primary proponents, the 
     Federal Law Enforcement Officers Association (FLEOA), offers 
     no helpful statistics to support the position that federal 
     probation officers need third party arrest authority. FLEOA's 
     statements are actually counter to their position. In a 
     January 6, 2017, letter to the Senate Judiciary Committee, 
     FLEOA itself admits that ``formal arrests by probation 
     officers are rare.'' There is no data-driven imperative for 
     expanding federal probation officer arrest authority.
       In fact, the Federal Probation & Pretrial Officers 
     Association (FPPOA) February 13, 2017, letter states that in 
     2015, of the 987 searches that were conducted, only 30 
     involved uncooperative third parties. That is 3%. And 
     furthermore, FPPOA does not indicate how many of those 30 
     incidents resulted in actual arrests. With federal probation 
     officers' encounters involving so few uncooperative third 
     parties and apparently even fewer incidents that actually 
     result in arrest, the federal probation officers' own 
     statistics lead to the conclusion that there is no need for 
     probation officers to execute arrests of third parties. When 
     probation officers face genuine physical danger, they should 
     retreat and seek the assistance of trained law enforcement.


 THE PROBATION OFFICER PROTECTION ACT WOULD PUT PROBATION OFFICERS IN 
                                 DANGER

       Probation officers are not trained law enforcement 
     officers, so they should not be given increased police 
     powers, the exercise of which could put them in harm's way. 
     If probation officers are given authority to restrain and 
     arrest uncooperative third parties, they are likely to 
     heighten the physical danger for themselves and third 
     parties.
       Instead of engaging with resistant third parties, probation 
     officers should rely upon the assistance of trained local law 
     enforcement. This is the existing practice of probation 
     officers, and according to their own statistics, this seems 
     to work. Currently, federal probation officers are required 
     to call in the United States Marshals or other law 
     enforcement in order to arrest third parties. The reason is 
     that probation officers lack the training necessary to safely 
     execute an arrest, while the other law enforcement agents 
     have the capacity to do so. Federal probation officers 
     complete only six weeks of orientation training. New law 
     enforcement officers complete 16 to 21 weeks of classroom 
     training and they often must complete three additional weeks 
     of field training.


THE PROBATION OFFICER PROTECTION ACT IS OVERLY BROAD AND RAISES FOURTH 
                           AMENDMENT CONCERNS

       Federal probation officers would be authorized in POPA to 
     arrest ``a person without a warrant if there is probable 
     cause to believe that the person has forcibly assaulted, 
     resisted, opposed, impeded, intimidated, or interfered with a 
     probation officer, or a fellow probation officer.'' 
     Currently, 18 U.S.C. Sec. 3606 authorizes probation officers 
     to arrest probationers without a warrant based on probable 
     cause that the probationer has violated the conditions of his 
     or her probation or release. However, probation officers do 
     not have the training or on the job experience to make 
     probable cause determinations necessary to make arrests of 
     third parties compared to local law enforcement officers and 
     the U.S. Marshals.
       A real world implication of giving federal probation 
     officers third party arrest authority could be that the 
     mother of a son on probation is arrested for denying a 
     probation officer access to her private space, like her 
     bedroom. This bill would give a probation officer authority 
     to decide that the mother's decision constituted 
     ``interference'' and subsequently arrest her. Although 
     probationers willingly surrender some of their Fourth 
     Amendment rights as a condition of probation, third parties 
     housing a probationer do not when it comes to their private 
     spaces.


    THE PROBATION OFFICER PROTECTION ACT HINDERS SUCCESSFUL REENTRY

       Allowing probation officers to arrest third parties would 
     also inhibit successful reentry for probationers. Part of the 
     benefit of the probation system is that it allows 
     probationers to live in society with their families while 
     they serve out their sentences and transition to full reentry 
     into the community. But the prospect of arrest for 
     individuals who assist people on probation reentering their 
     communities may deter family members from providing a home to 
     people on probation. This also runs counter to part of the 
     mission of the U.S. Probation and Pretrial Services, which is 
     ``to bring about long-term positive change in individuals 
     under supervision.''
       For the reasons above, the ACLU opposes the Probation 
     Officer Protection Act and we urge the Members to oppose this 
     legislation when it is considered by the Committee. If you 
     have any questions or comments, please feel free to contact 
     Kanya Bennett, Legislative Counsel.
           Sincerely,
                                                      Faiz Shakir,
                                      National Political Director.
                                                    Kanya Bennett,
                                              Legislative Counsel.

  Ms. JACKSON LEE. Mr. Speaker, I ask my colleagues to support this 
amendment, and I yield back the balance of my time.
  Mr. RATCLIFFE. Mr. Speaker, there is no Fourth Amendment violation, 
the bill makes no reference whatsoever to the issue of searches, and 
there is no objection to the gentlewoman's request for a study. But 
there continues to be, and needs to be, objection and opposition to a 
sunset provision with respect

[[Page H4373]]

to the authority that probation officers need to perform their duties 
safely and effectively.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Pursuant to the rule, the previous question 
is ordered on the bill and on the amendment offered by the gentlewoman 
from Texas (Ms. Jackson Lee).
  The question is on the amendment offered by the gentlewoman from 
Texas (Ms. Jackson Lee).
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Ms. JACKSON LEE. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
order of the House of today, further proceedings on this question will 
be postponed.

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