[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 334 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 334

 To amend title I of the Omnibus Crime Control and Safe Streets Act of 
 1968 to encourage States to enact a Law Enforcement Officers' Bill of 
Rights, to provide standards and protection for the conduct of internal 
             police investigations, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             February 2 (legislative day, January 30), 1995

  Mr. McConnell (for himself and Mr. Biden) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title I of the Omnibus Crime Control and Safe Streets Act of 
 1968 to encourage States to enact a Law Enforcement Officers' Bill of 
Rights, to provide standards and protection for the conduct of internal 
             police investigations, and for other purposes.

    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 ``Law Enforcement Officers' Bill of 
Rights Act of 1995''.

SEC. 2. RIGHTS OF LAW ENFORCEMENT OFFICERS.

    (a) In General.--Part H of title I of the Omnibus Crime Control and 
Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.) is amended by adding 
at the end the following new section:

                  ``rights of law enforcement officers

    ``Sec. 819. (a) Definitions.--In this section--
            `` `disciplinary action' means the suspension, demotion, 
        reduction in pay or other employment benefit, dismissal, 
        transfer, or similar action taken against a law enforcement 
        officer as punishment for misconduct.
            `` `disciplinary hearing' means an administrative hearing 
        initiated by a law enforcement agency against a law enforcement 
        officer, based on probable cause to believe that the officer 
        has violated or is violating a rule, regulation, or procedure 
        related to service as an officer and is subject to disciplinary 
        action.
            `` `emergency suspension' means temporary action imposed by 
        the head of the law enforcement agency when that official 
        determines that there is probable cause to believe that a law 
        enforcement officer--
                    ``(A) has committed a felony; or
                    ``(B) poses an immediate threat to the safety of 
                the officer or others or the property of others.
            ```investigation'--
                    ``(A) means the action of a law enforcement agency, 
                acting alone or in cooperation with another agency, or 
                a division or unit within an agency, or the action of 
                an individual law enforcement officer, taken with 
                regard to another enforcement officer, if such action 
                is based on reasonable suspicion that the law 
                enforcement officer has violated, is violating, or will 
                in the future violate a statute or ordinance, or 
                administrative rule, regulation, or procedure relating 
                to service as a law enforcement officer; and
                    ``(B) includes--
                            ``(i) asking questions of other law 
                        enforcement officers or nonlaw enforcement 
                        officers;
                            ``(ii) conducting observations;
                            ``(iii) evaluating reports, records, or 
                        other documents; and
                            ``(iv) examining physical evidence.
            `` `law enforcement agency' means a State or local public 
        agency charged by law with the duty to prevent or investigate 
        crimes or apprehend or hold in custody persons charged with or 
        convicted of crimes.
            ```law enforcement officer' and `officer'--
                    ``(A) mean a member of a law enforcement agency 
                serving in a law enforcement position, which is usually 
                indicated by formal training (regardless of whether the 
                officer has completed or been assigned to such 
                training) and usually accompanied by the power to make 
                arrests; and
                    ``(B) include--
                            ``(i) a member who serves full time, 
                        whether probationary or nonprobationary, 
                        commissioned or noncommissioned, career or 
                        noncareer, tenured or nontenured, and merit or 
                        nonmerit; and
                            ``(ii) the chief law enforcement officer of 
                        a law enforcement agency.
            ```summary punishment' means punishment imposed for a minor 
        violation of a law enforcement agency's rules and regulations 
        that does not result in suspension, demotion, reduction in pay 
        or other employment benefit, dismissal, or transfer.
    ``(b) Application of Section.--
            ``(1) In general.--This section sets forth rights that 
        shall be afforded a law enforcement officer who is the subject 
        of an investigation.
            ``(2) Nonapplicability.--This section does not apply in the 
        case of--
                    ``(A) a criminal investigation of a law enforcement 
                officer's conduct; or
                    ``(B) a nondisciplinary action taken in good faith 
                on the basis of a law enforcement officer's employment 
                related performance.
    ``(c) Political Activity.--Except when on duty or acting in an 
official capacity, no law enforcement officer shall be prohibited from 
engaging in political activity or be denied the right to refrain from 
engaging in such activity.
    ``(d) Rights of Law Enforcement Officers While Under 
Investigation.--When a law enforcement officer is under investigation 
that could lead to disciplinary action, the following minimum standards 
shall apply:
            ``(1) Notice of investigation.--A law enforcement officer 
        shall be notified of the investigation prior to being 
        interviewed. Notice shall include the general nature and scope 
        of the investigation and all departmental violations for which 
        reasonable suspicion exists. No investigation based on a 
        complaint from outside the law enforcement agency may commence 
        unless the complainant provides a signed detailed statement. An 
        investigation based on a complaint from outside the agency 
        shall commence within 15 days after receipt of the complaint by 
        the agency.
            ``(2) Notice of proposed findings and recommendation.--At 
        the conclusion of the investigation, the person in charge of 
        the investigation shall inform the law enforcement officer 
        under investigation, in writing, of the investigative findings 
        and any recommendation for disciplinary action that the person 
        intends to make.
    ``(e) Rights of Law Enforcement Officers Prior to and During 
Questioning.--When a law enforcement officer is subjected to 
questioning that could lead to disciplinary action, the following 
minimum standards shall apply:
            ``(1) Reasonable hours.--Questioning of a law enforcement 
        officer shall be conducted at a reasonable hour, preferably 
        when the law enforcement officer is on duty, unless exigent 
        circumstances otherwise require.
            ``(2) Place of questioning.--Questioning of the law 
        enforcement officer shall take place at the offices of the 
        persons who are conducting the investigation or the place where 
        the law enforcement officer reports for duty, unless the 
        officer consents in writing to being questioned elsewhere.
            ``(3) Identification of questioner.--The law enforcement 
        officer under investigation shall be informed, at the 
        commencement of any questioning, of the name, rank, and command 
        of the officer conducting the questioning.
            ``(4) Single questioner.--During any single period of 
        questioning of the law enforcement officer, all questions shall 
        be asked by or through a single investigator.
            ``(5) Notice of nature of investigation.--The law 
        enforcement officer under investigation shall be informed in 
        writing of the nature of the investigation prior to any 
        questioning.
            ``(6) Reasonable time period.--Any questioning of a law 
        enforcement officer in connection with an investigation shall 
        be for a reasonable period of time and shall allow for 
        reasonable periods for the rest and personal necessities of the 
        law enforcement officer.
            ``(7) No threats or promises.--Threats against, harassment 
        of, or promise of reward shall not be made in connection with 
        an investigation to induce the answering of any question. No 
        statement given by the officer may be used in a subsequent 
        criminal proceeding unless the officer has received a written 
        grant of use and derivative use immunity or transactional 
        immunity.
            ``(8) Recordation.--All questioning of any law enforcement 
        officer in connection with the investigation shall be recorded 
        in full, in writing or by electronic device, and a copy of the 
        transcript shall be made available to the officer under 
        investigation.
            ``(9) Counsel.--The law enforcement officer under 
        investigation shall be entitled to counsel (or any other one 
        person of the officer's choice) at any questioning of the 
        officer, unless the officer consents in writing to being 
        questioned outside the presence of counsel.
    ``(f) Disciplinary Hearing.--
            ``(1) Notice of opportunity for hearing.--Except in a case 
        of summary punishment or emergency suspension described in 
        subsection (h), if an investigation of a law enforcement 
        officer results in a recommendation of disciplinary action, the 
        law enforcement agency shall notify the law enforcement officer 
        that the law enforcement officer is entitled to a hearing on 
        the issues by a hearing officer or board prior to the 
        imposition of any disciplinary action.
            ``(2) Requirement of determination of violation.--No 
        disciplinary action may be taken unless a hearing officer or 
        board determines, pursuant to a fairly conducted disciplinary 
        hearing, that the law enforcement officer violated a statute, 
        ordinance, or published administrative rule, regulation, or 
        procedure.
            ``(3) Time limit.--No disciplinary charges may be brought 
        against a law enforcement officer unless filed within 90 days 
        after the commencement of an investigation, except for good 
        cause shown.
            ``(4) Notice of filing of charges.--The law enforcement 
        agency shall provide written, actual notification to the law 
        enforcement officer, not later than 30 days after the filing of 
        disciplinary charges, of the following:
                    ``(A) The date, time, and location of the 
                disciplinary hearing, which shall take place not sooner 
                than 30 days and not later than 60 days after 
                notification to the law enforcement officer under 
                investigation unless waived in writing by the officer.
                    ``(B) The name and mailing address of the hearing 
                officer.
                    ``(C) The name, rank, and command of the 
                prosecutor, if a law enforcement officer, or the name, 
                position, and mailing address of the prosecutor, if not 
                a law enforcement officer.
            ``(5) Representation.--During a disciplinary hearing an 
        officer shall be entitled to be represented by counsel or 
        nonattorney representative.
            ``(6) Hearing board and procedure.--(A) A State shall 
        determine the composition of a disciplinary hearing board and 
        the procedures for a disciplinary hearing.
            ``(B) A disciplinary hearing board that includes employees 
        of the law enforcement agency of which the officer who is the 
        subject of the hearing is a member shall include at least 1 law 
        enforcement officer of equal or lesser rank to the officer who 
        is the subject of the hearing. 
            ``(7) Access to evidence.--A law enforcement officer who is 
        brought before a disciplinary hearing board shall be provided 
        access to all transcripts, records, written statements, written 
        reports, analyses, and electronically recorded information 
        pertinent to the case that--
                    ``(A) contain exculpatory information;
                    ``(B) are intended to support any disciplinary 
                action; or 
                    ``(C) are to be introduced in the disciplinary 
                hearing.
            ``(8) Identification of witnesses.--The disciplinary 
        advocate for the law enforcement agency of which the officer 
        who is the subject of the hearing is a member shall notify the 
        law enforcement officer, or his attorney if he is represented 
        by counsel, not later than 15 days prior to the hearing, of the 
        name and addresses of all witnesses for the law enforcement 
        agency.
            ``(9) Copy of investigative file.--The disciplinary 
        advocate for the law enforcement agency of which the officer 
        who is the subject of the hearing is a member shall provide to 
        the law enforcement officer, at the law enforcement officer's 
        request, not later than 15 days prior to the hearing, a copy of 
        the investigative file, including all exculpatory and 
        inculpatory information but excluding confidential sources.
            ``(10) Examination of physical evidence.--The disciplinary 
        advocate for the law enforcement agency of which the officer 
        who is the subject of the hearing is a member shall notify the 
        law enforcement officer, at the officer's request, not later 
        than 15 days prior to the hearing, of all physical, 
        nondocumentary evidence, and provide reasonable date, time, 
        place, and manner for the officer to examine such evidence at 
        least 10 days prior to the hearing.
            ``(11) Summonses.--The hearing board shall have the power 
        to issue summonses to compel testimony of witnesses and 
        production of documentary evidence. If confronted with a 
        failure to comply with a summons, the hearing officer or board 
        may petition a court to issue an order, with failure to comply 
        being subject to contempt of court. 
            ``(12) Closed hearing.--A disciplinary hearing shall be 
        closed to the public unless the law enforcement officer who is 
        the subject of the hearing requests, in writing, that the 
        hearing be open to specified individuals or the general public.
            ``(13) Recordation.--All aspects of a disciplinary hearing, 
        including prehearing motions, shall be recorded by audio tape, 
        video tape, or transcription.
            ``(14) Sequestration of witnesses.--Either side in a 
        disciplinary hearing may move for and be entitled to 
        sequestration of witnesses.
            ``(15) Testimony under oath.--The hearing officer or board 
        shall administer an oath or affirmation to each witness, who 
        shall testify subject to the applicable laws of perjury.
            ``(16) Verdict on each charge.--At the conclusion of all 
        the evidence, and after oral argument from both sides, the 
        hearing officer or board shall deliberate and render a verdict 
        on each charge.
            ``(17) Burden of persuasion.--The prosecutor's burden of 
        persuasion shall be by clear and convincing evidence as to each 
        charge involving false representation, fraud, dishonesty, 
        deceit, or criminal behavior and by a preponderance of the 
        evidence as to all other charges.
            ``(18) Finding of not guilty.--If the law enforcement 
        officer is found not guilty of the disciplinary violations, the 
        matter is concluded and no disciplinary action may be taken.
            ``(19) Finding of guilty.--If the law enforcement officer 
        is found guilty, the hearing officer or board shall make a 
        written recommendation of a penalty. The sentencing authority 
        may not impose greater than the penalty recommended by the 
        hearing officer or board.
            ``(20) Appeal.--A law enforcement officer may appeal from a 
        final decision of a law enforcement agency to a court to the 
        extent available in any other administrative proceeding, in 
        accordance with the applicable State law.
    ``(g) Waiver of Rights.--A law enforcement officer may waive any of 
the rights guaranteed by this section subsequent to the time that the 
officer has been notified that the officer is under investigation. Such 
a waiver shall be in writing and signed by the officer.
    ``(h) Summary Punishment and Emergency Suspension.--
            ``(1) In general.--This section does not preclude a State 
        from providing for summary punishment or emergency suspension.
            ``(2) Health benefits.--An emergency suspension shall not 
        affect or infringe on the health benefits of a law enforcement 
        officer or the officer's dependents.
    ``(i) Retaliation for Exercising Rights.--There shall be no penalty 
or threat of penalty against a law enforcement officer for the exercise 
of the officer's rights under this section.
    ``(j) Other Remedies Not Impaired.--Nothing in this section shall 
be construed to impair any other legal right or remedy that a law 
enforcement officer may have as a result of a constitution, statute, 
ordinance, regulation, collective bargaining agreement or other sources 
of rights.
    ``(k) Declaratory or Injunctive Relief.--A law enforcement officer 
who is being denied any right afforded by this section may petition a 
State court for declaratory or injunctive relief to prohibit the law 
enforcement agency from violating such right.
    ``(l) Prohibition of Adverse Material in Officer's File.--A law 
enforcement agency shall not insert any adverse material into the file 
of any law enforcement officer, or possess or maintain control over any 
adverse material in any form within the law enforcement agency, unless 
the officer has had an opportunity to review and comment in writing on 
the adverse material.
    ``(m) Disclosure of Personal Assets.--A law enforcement officer 
shall not be required or requested to disclose any item of the 
officer's personal property, income, assets, sources of income, debts, 
personal or domestic expenditures (including those of any member of the 
officer's household), unless--
            ``(1) the information is necessary to the investigation of 
        a violation of any Federal, State or local law, rule, or 
        regulation with respect to the performance of official duties; 
        and
            ``(2) such disclosure is required by Federal, State, or 
        local law.
    ``(n) States' Rights.--This section does not preempt State laws in 
effect on the date of enactment of this Act that confer rights that 
equal or exceed the rights and coverage afforded by this section. This 
section shall not be a bar to the enactment of a police officer's bill 
of rights, or similar legislation, by any State. A State law which 
confers fewer rights or provides less protection than this section 
shall be preempted by this section.
    ``(o) Mutually Agreed Upon Collective Bargaining Agreements.--This 
section does not preempt existing mutually agreed upon collective 
bargaining agreements in effect on the date of enactment of this Act 
that are substantially similar to the rights and coverage afforded 
under this section.''.
    (b) Technical Amendment.--The table of contents of title I of the 
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. preceding 
3701) is amended by inserting after the item relating to section 818 
the following new item:

``Sec. 819. Rights of law enforcement officers.''.
                                 <all>