[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 348 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 348

 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 25, 1997

 Mr. McConnell (for himself, Mr. Biden, and Mr. Leahy) 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 1997''.

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:

``SEC. 820. RIGHTS OF LAW ENFORCEMENT OFFICERS.

    ``(a) Definitions.--In this section:
            ``(1) Disciplinary action.--The term `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.
            ``(2) Disciplinary hearing.--The term `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.
            ``(3) Emergency suspension.--The term `emergency 
        suspension' means temporary action imposed by the head of the 
        law enforcement agency if 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.
            ``(4) Investigation.--The term `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 
                respect 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.
            ``(5) Law enforcement agency.--The term `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 criminal 
        offenses.
            ``(6) Law enforcement officer.--The terms `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 is 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.
            ``(7) Summary punishment.--The term `summary punishment' 
        means punishment imposed for a minor violation of a rule, 
        regulation, or procedure of a law enforcement agency 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 any 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 the conduct of a 
                law enforcement officer; or
                    ``(B) a nondisciplinary action taken in good faith 
                on the basis of the employment related performance of a 
                law enforcement officer.
    ``(c) Political Activity.--Except if 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 Under Investigation.--If a 
law enforcement officer is under investigation that could lead to 
disciplinary action, each of the following minimum standards shall 
apply:
            ``(1) Notice of investigation.--A law enforcement officer 
        shall be notified of the investigation within a reasonable time 
        after the commencement of the investigation. 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 not later 
        than 15 days after receipt of the complaint by the agency.
            ``(2) Notice of investigative findings and recommendation 
        for disciplinary action.--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 Before and During 
Questioning.--If a law enforcement officer is subjected to questioning 
that could lead to disciplinary action, each of the following minimum 
standards shall apply:
            ``(1) Reasonable hours.--Questioning of a law enforcement 
        officer shall be conducted at a reasonable hour, preferably 
        during the time that 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 not less than 72 
        hours before 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) during 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 issue by a hearing officer or board before 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 not later than 
        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) Date, time, and location of hearing.--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) Information relating to hearing officer.--The 
                full name and mailing address of the hearing officer.
                    ``(C) Information relating to prosecutor.--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 other 
        representative.
            ``(6) Hearing board and procedure.--
                    ``(A) In general.--Subject to subparagraph (B), a 
                State shall determine the composition of a disciplinary 
                hearing board and the procedures for a disciplinary 
                hearing.
                    ``(B) Membership.--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 not less than 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 before 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, upon the request of the law 
        enforcement officer, not later than 15 days before the hearing, 
        a copy of the investigative file, including all exculpatory and 
        inculpatory information, except that the law enforcement agency 
        may exclude confidential sources, unless the law enforcement 
        officer is entitled to such sources under subparagraph (A), 
        (B), or (C) of paragraph (7).
            ``(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 request of the officer, not 
        later than 15 days before the hearing, of all physical, 
        nondocumentary evidence, and provide reasonable date, time, 
        place, and manner for the officer to examine such evidence not 
        less than 10 days before 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 burden of persuasion of 
        the prosecutor 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 any dependent of the officer.
    ``(i) Retaliation for Exercising Rights.--There shall be no penalty 
or threat of penalty against a law enforcement officer for the exercise 
of the rights of the officer 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, 
or 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 
existence on the effective date of this section 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 that 
confers fewer rights or provides less protection to law enforcement 
officers than this section shall be preempted by this section.
    ``(o) Mutually Agreed Upon Collective Bargaining Agreements.--This 
section does not preempt any mutually agreed upon collective bargaining 
agreement in existence on the effective date of this section that is 
substantially similar to the rights and coverage afforded under this 
section.
    ``(p) Effective Date.--This section shall take effect with respect 
to each State on the earlier of--
            ``(1) 2 years after the date of enactment of the Law 
        Enforcement Officers' Bill of Rights Act of 1997; or
            ``(2) upon the conclusion of the second legislative session 
        of the State that begins on or after the date of enactment of 
        the Law Enforcement Officers' Bill of Rights Act of 1997.''.
    (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 819 
the following:

``Sec. 820. Rights of law enforcement officers.''.
                                 <all>