Congress will probably vote this morning on a new bill which would expand the arrest power of federal probation officers. Washington Congressman Dave Reichert has characterized the Probation Officer Protection Act as a bill which lets officers arrest, “a third party who forcibly interferes with an officer’s performance of his or her official duties.” This makes it appear like Reichert is looking at third parties who try to harm a probation officer.
The truth of the matter is a little more complicated. Here’s the language of the actual bill (emphasis mine).
“(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.”.
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.
Louisiana Attorney Andre Belanger put it this way in 2015.
(A)nything in the common areas may be fair game. Also, once there, should something arise that gives reason to believe that contraband is found in your room, that could end badly for you. In theory, the probation officer could [contact] local law enforcement who could then obtain a search warrant to search your private areas.
Cops have to get a search warrant to look at people’s homes and apartments. Chipping away at that requirement by letting a probation officer go in without one, isn’t a good idea. It’s easy to say, “If you’re not a criminal, then you shouldn’t worry about it,” but what happens if the probation officer is having a bad day and the innocent roommate uses a swear word towards him? If a Louisiana teen can be arrested for swearing at an old lady, then the probation officer could claim the roommate was interfering in his duties. John Philpot Curran said, “The condition upon which God hath given liberty to man is eternal vigilance…” and he’s right. Government tyranny can come from any form, even if it’s with good intentions.
But there’s a separate issue at stake: it’s already illegal to obstruct a probation officer from performing his or her duties.
18 U.S.C. § 3606 (2017) authorizes a USPO to arrest a probationer or a person on supervised release if there is probable cause to believe that the person being supervised has violated a condition of his probation or release.
18 U.S.C. § 111 (2017) prohibits assaulting, resisting, or impeding any officer or employee of the United States or of any agency in any branch of the United States Government.
So Reichert and allies, which include New Jersey Democrat Congressman Bill Pascrell, and Democratic Senators Dianne Feinstein and Joe Machin, along with GOP Senators Orrin Hatch and Thom Tillis, appear to be investing in a department of redundancy department law. Does it really make sense to make something “super illegal,” if it’s already illegal to begin with? Remember, we’re not talking about people on probation but their roommates. It just seems like an odd law to put in place.
Reichert and company did tell the House Judiciary Committee the law was needed because, “when a probation officer encounters an uncooperative or violent third party, the officer may be forced to retreat because he or she lacks authority to restrain the third party. This lack of authority and resulting need to retreat, rather than restrain the third party,” This is even though the supporters acknowledge it’s already illegal to keep a probation officer from doing his/her duties. They also suggest the local cops could help with the visit, but also say it’d draw away resources from other crimes.
Reichert paints a rather dire picture, and claims this is an urgent matter which has to be solved now. But FreedomWorks CEO Adam Brandon writes the facts are completely different.
According to the U.S. Probation and Pretrial Services System, less than 4 percent of third parties were uncooperative during pre-approved searches in 2013, less than 6 percent in 2014, and 7 percent in 2016. Separately, the Federal Probation and Pretrial Officers Association reported that only 3 percent of searches in 2016 involved uncooperative third parties.
Brandon also has issues with the fact the bill lets the Director of the Administrative Office of the United State Courts come up with rules and regulations for arrest authority. This is another example of Congress trying to shirk their responsibility of coming up with the rules for the government. If conservatives had issue with unelected bureaucrats in the EPA or Department of Energy or Department of Education coming up with regulations, then they should also have issues with an unelected bureaucrat in the US Courts Administrative Office doing the same thing. The problem isn’t with the federal probation officers, but with the politicians and bureaucrats who set the rules.
This is honestly like the leftists who claim all guns need to be banned because a tiny segment of the population decides to act violently. It’s awful whenever an innocent is hurt or killed, regardless of their job duties. But it doesn’t mean the country needs to create a completely new law. There’s nothing wrong with trying to keep probation officers or any law enforcement officer safe. It’s still worth questioning when the method politicians go about it lessens the freedom of innocents, and doesn’t let voters hold the rule makers accountable. The fact that this is a solution to a problem which doesn’t really exist is also why Congress should reject this measure.