[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.''.
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