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Why are so many speaking out against the Back the Blue Act? - II

Last week, our blog began discussing how many people might have missed the recent introduction of a new tough-on-crime bill by federal lawmakers -- one that could significantly alter the criminal law landscape -- thanks to everything taking place on Capitol Hill. 

Specifically, we started discussing the Back the Blue Act of 2017, a measure calling for the creation of a host of new federal charges that could conceivably be brought against anyone who harms a judge, first responder, federal agent, or local law enforcement officer working for an agency receiving federal funds.

We'll continue our discussion of this controversial measure in today's post.

Is it true that the Back the Blue Act contains civil liability provisions?

The measure does contain provisions relating to civil liability.

In general, a plaintiff seeking to hold a police officer accountable in a civil lawsuit will need to be able to demonstrate that the officer is not entitled to qualified immunity given that 1) a violation of constitutional rights occurred and 2) that a reasonable officer should have known that the actions at issue violated the U.S. Constitution.

Under the civil liability provisions of the Back the Blue Act, a plaintiff would still need to meet this demanding standard. However, even if they are able to do so, the defendant officer/department could still reduce their potential liability to only out-of-pocket expenses if it could be demonstrated that the violations and injuries were "incurred in the course of, or as a result of, or … related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence."

How would something like this look?

Experts provide the following example as an illustration of how this would look: the local police department conducts a raid of an individual's home pursuant to a valid warrant authorizing a search for illegal narcotics and fatally shoots a family member in the process.

Here, the deceased's family members might see their recovery limited to just funeral expenses or other similar items despite proving that the shooting was illegal if the police could demonstrate that the deceased was "more likely than not" selling enough illegal drugs to result in felony charges.

Why are so many speaking out against the Back the Blue Act?  

In addition to reservations with the civil liability provisions outlined above, many criminal justice advocates have expressed concern that the measure would unjustly impede on the prosecutorial powers of local and state officials.

Specifically, the act contains a provision dictating that federal prosecutions can be pursued where "the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence."

There are also major concerns that the measure will reverse efforts to reduce the federal prison population.

Have any alternatives to this legislation been introduced?  

Sens. Rand Paul (R-Kentucky) and Patrick Leahy (D-Vermont) have introduced the Justice Safety Valve Act, which, if passed, would give federal judges power to impose sentences below the mandatory minimum when dictated by the circumstances. 

Stay tuned for updates …

Consider speaking with an experienced legal professional as soon as possible if you are under investigation or have been charged with any manner of federal offense.

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