posted at 7:01 pm on May 20, 2017 by Jazz Shaw
Yesterday morning, Taylor published an article about a piece of pending legislation which he gave the rather straightforward title of, The Probation Officer Protection Act is a bad idea. I actually read it over before it was published and I really didn’t agree with Taylor’s take on it at all. After having had a day or two to chew it over, I’d like to offer an alternate view. (Not to be confused with alternative facts for those of you just tuning in.)
What he’s discussing, of course, is House bill H.R. 1039 (which passed a full vote in the house 228-178, even with 33 no votes from Republicans) and its Senate counterpart S.367, introduced in the Senate Judiciary Committee back in February. Taylor was rather excited to find at least one Congressman, Thomas Massie of Kentucky, who took to social media to say that he would not only be voting no, >but hell no. It’s all quite dramatic.
While I can understand and, at least to a certain degree, sympathize with some of Taylor’s concerns over the bill, most of them come off to my ear as primarily hard core, “Big L” Libertarian distress signals which don’t really represent the Godzilla-like threats to liberty and freedom which are described. Let’s look at one of the bigger issues being raised, specifically a passage which provides for the ability of a probation officer to, “arrest a third party who forcibly interferes with an officer’s performance of his or her official duties.”
Taylor’s response was as follows:
The language appears to give probation officers too much power, meaning they could take someone into custody for telling them to come back with a search warrant. Suppose a probation officer is arresting a wanted fugitive inside an apartment, who happens to have a roommate. The probation officer could tell the roommate to let him or her look into the roommate’s bedroom, then arrest said roommate if they said, “No.” This violates the Fourth Amendment, and unreasonable searches and seizures.
Sorry to say it, but we seem to be inventing monsters to slay here. The likelihood of a such a scenario seems vanishingly small and so unsound when put under the scrutiny of a court that it would never hold up. If the probation officer has probable cause to believe that the suspect is at particular residence and may flee before they can return with a warrant, they are only coming in with the ability to take the suspect into custody. If the hypothetical “roommate” in this situation went so far as to physically attack them or block their passage to search then they are culpable, but simply saying, “Hey, come back with a warrant” isn’t going to get you arrested, but rather ignored. And if one were arrested under such a dodgy set of circumstances, the most inexperienced defense attorney in the bullpen at the Public Defenders Office should be able to get that tossed out in no time flat. A judge entertaining such a complaint would likely not be on the bench for long.
Further, if the PO enters the home and sees some drug paraphernalia or evidence of another crime (which didn’t constitute an immediate threat to public safety or involve, say, a dead body on your couch) a similar principle is in play. The PO had no authority to be investigating that crime when he or she entered, but only to take the suspect into custody. If the PO tried to make an arrest for the drugs he saw or went to get a warrant to do so, anything taken would almost surely fall under the Fruit of the Poisonous Tree doctrine and be similarly tossed to the curb.
Taylor goes on to postulate Probation Officers who are “having a bad day” and just decide to begin arresting roommates who “use a swear word” in their presence. Pardon my saying, but that is dangerously close to fever swamp thinking and, yet again, that charge would get tossed like a rotten apple.
One of the other objections being raised is the argument that the law isn’t needed because it’s already illegal to do that under 18 U.S.C. § 111 (2017). Perhaps, but that’s an incredibly vague statute which doesn’t wind up getting invoked very often. You are not making the interference in the duties of the PO somehow “super illegal” when it’s already illegal, as Taylor suggests. It’s simply a more conditional and specific penalty designed to allow law enforcement to uphold their rights and buttress their safety when they are legally performing their duties.
I’m not saying that this act, if signed into law, is going to solve all the world’s ills in terms of law enforcement, but there are definitely scenarios where it could produce positive results. And the fears being expressed in Taylor’s article seem unlikely in the extreme, if not entirely unfounded. I definitely support passage of this bill and the President signing it into law.