[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.
____________________