Blue Lives Matter legislation in the Congress

Representative Ken Buck of Colorado has introduced the Blue Lives Matter Act, H.R. 4760.  This bill would add police officers to the list of protected persons in the Shepard-Byrd Act, the federal hate crimes law.  See 18 U.S.C. 249.  From what I can tell, though, Rep. Buck’s bill would create a new section number for police officer attacks (section 250)(and, I would add, defines “police officer” so broadly as to include prosecutors, and even judges).

Ilya Somin has a thoughtful piece up at VC on the Blue Lives Matter legislation (which references a good separate piece by Alison, his wife, at the Fed-Soc Blog).  Ilya’s piece is here.  Kent Scheidegger has a similarly-themed post up at C&C here.  Both Ilya and Kent agree with the sentiment expressed by the law, but think that as a federal law it is an unnecessary affront to federalism, which is also a value that conservatives should champion and that has been undermined by the growth of federal criminal law in recent decades.

I am sympathetic to the federalism argument that both Ilya and Kent make.  And both make persuasive claims that the legislation is unnecessary, even if well-intentioned.

But let me take a stab at defending the bill, at least on two narrow grounds.

First, the constitutional question, which Ilya raises, is an interesting one.  The hate crimes law has two distinct provisions – one protects persons from race-based violence and is justified by Congress’s enforcement power pursuant to Section 2 of the 13th Amendment; the other protects persons from violence based on religion, national origin, gender, sexual orientation, gender identity, or disability, but requires proof of a connection to interstate commerce.  Rep. Buck’s bill would add police officers to this latter provision.

Federal courts that have entertained constitutional challenges to the hate crimes bill have routinely upheld it.  Rep. Buck and the bill’s co-sponsors can mostly avoid the constitutional debate by pointing to existing case law regarding the Shepard-Byrd Act (though conservatives would typically be disinclined to defend a broad view of the commerce power, and liberals would not be inclined to make this a ground for their opposition anyway).

Second, and more importantly, the real benefit of the hate crimes legislation is not that it creates a new offense.  After all, the conduct that triggers the federal hate crimes law will typically already be punishable as a crime, either at the federal or state level.  Instead, the hate crimes law formally recognizes the principle that a bias-motivated crime, or one that is the product of certain kinds of animus, is worthy of more serious punishment than similar conduct committed without the bias or animus.  As this theory goes, if X shoots and kills V, it matters whether X did so because he and V merely had an argument, or whether X did so precisely because V was African-American, or because V was a Christian, or because V was a woman or was gay.

In this sense, extending hate crimes protection to law enforcement officers has value.  Not only does the legislation ensure substantial punishment for a person who engages in violence based on animus against law enforcement officers, it also conveys the message that a decent citizenry should respect law enforcement authority, just as it should respect people of various races, religions, and sexual orientations in our communities (though one could argue that one’s status as a police officer differs in kind from the characteristics enumerated in the Shepard-Byrd Act, an argument I find unpersuasive in this context).  In other words, if X attacks V with a hatchet, and V is a police officer, it should matter whether X did so while, say, mistaking V for a private citizen, or whether X attacked V knowing that – and because – V is a police officer.  The latter motivation distinguishes the two acts, and arguably makes X not only more culpable but more dangerous to the community (and therefore worthy of more serious punishment).

A problem with this argument, of course, is the one to which Ilya and Kent allude.  State law appears to be sufficient to deal with this.  It would be different if States could not be trusted to protect law enforcement officers from violence, or if the federal government had some special interest in protecting officers that was not shared by the States.  But that is not the case.  And as for distinctly federal law enforcement officers, they already have the protection of federal criminal law.  See, e.g., 18 U.S.C. 113, 115, 1114.  I suppose one can imagine a scenario where the state law might have gaps.  For example, if a person attacks a police officer who is off duty – such as at his home – then any state law that protected the officer only during the performance of his official duties would not apply.  But, as currently drafted, neither would H.R. 4760. (query: if it is the person’s mere status as an officer that matters, why then does it matter whether the officer is actually engaged in the performance of his duties at the time of the attack?)

Still, the bill – like the Shepard-Byrd law – accounts in some ways for the federalism problem.  It requires a similar certification procedure.  And even if it did not, the DOJ’s Petite Policy (which the certification provision essentially codifies) would apply where the dual or successive prosecution problem existed.  (I have, by the way, been critical  – on separation of powers grounds – of Congress’s effort to codify the Petite Policy or other policies that restrain the DOJ’s charging discretion).

One can support the Blue Lives Matter idea, as well as the existing federal hate crimes law, and yet also believe in keeping federal criminal law narrow and in leaving most criminal law enforcement to the States, save for those situations where the Constitution defines a federal crime (treason) or specifically empowers the federal crime-definition (e.g., piracies and felonies on the high seas), or where there is an important interest that is distinctly federal and is reachable pursuant to a non-crime-specific provision of the Constitution (e.g., section 2 enforcement power, or the commerce power).  It is usually difficult to oppose a bill whose idea one finds appealing.  And if this legislation were proposed at the State level, the federalism objections would be obviated.  In this instance, there are good reasons to favor the notion of enhancing punishment for violence motivated by animus against law enforcement.  And yet, there also are good reasons, articulated by Ilya’s and Kent’s posts, to leave this matter to the states, which seem to be pretty good at responding to violence against police.  Constitutional conservatives who support the Blue Lives Matter idea will find this to be a tough call.

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