110 HR 3440 IH: Law U.S. House of Representatives 2007-08-03 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 1st Session H. R. 3440 IN THE HOUSE OF REPRESENTATIVES August 3, 2007 Ms. Linda T. Sánchez of California (for herself, Mr. Abercrombie, Mr. Berman, Mr. Cardoza, Mr. Doggett, Mr. Filner, Ms. Zoe Lofgren of California, Mrs. Napolitano, Mr. Ortiz, Mr. Pastor, Mr. Poe, and Mr. Wexler) introduced the following bill; which was 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 provide standards and procedures to guide both State and local law enforcement agencies and law enforcement officers during internal investigations, interrogation of law enforcement officers, and administrative disciplinary hearings, to ensure accountability of law enforcement officers, to guarantee the due process rights of law enforcement officers, and to require States to enact law enforcement discipline, accountability, and due process laws.

1.

Short title

This Act may be cited as the Law Enforcement Officers Procedural Bill of Rights Act of 2007.

2.

Findings; declaration of policy

(a)

Findings

Congress finds that— (1)a significant lack of due process rights of law enforcement officers during internal investigations and disciplinary proceedings has resulted in a loss of confidence in these processes by many law enforcement officers, including those unfairly targeted for their labor organization activities or for their legitimate enforcement of the laws, demoralizing many rank and file officers in communities and States; (2)unfair treatment of officers has potentially serious long-term consequences for law enforcement by potentially deterring or otherwise preventing officers from carrying out their duties and responsibilities to the public effectively and fairly in relation to local law enforcement and homeland security; (3)in light of Congressional authorization of local law enforcement officers to act across State lines for Homeland Security purposes during emergencies, and in connection with mutual aid agreements among the States, there is a need to provide stability and continuity in policing operations and safeguard the rights and protections of law enforcement officers who may be called upon to act beyond their local jurisdictions; (4)the lack of labor-management cooperation in disciplinary matters and either the perception or the actuality that officers are not treated fairly detrimentally impacts the recruitment of and retention of effective officers, as potential officers and experienced officers seek other careers which has serious implications and repercussions for officer morale, public safety, and labor-management relations and strife and can affect interstate and intrastate commerce, interfering with the normal flow of commerce; (5)there are serious implications for the public safety of the citizens and residents of the United States which threaten the domestic tranquility of the United States because of a lack of statutory protections to ensure— (A)the due process rights of law enforcement officers; (B)fair, thorough, and timely internal investigations and interrogations of and disciplinary proceedings against law enforcement officers; and (C)effective procedures for receipt, review, and investigation of complaints against officers, fair to both officers and complainants; and (6)resolving these disputes and problems and preventing the disruption of vital police services is essential to the well-being of the United States and the domestic tranquility of the Nation. (b)

Declaration of policy

Congress declares that it is the purpose of this Act and the policy of the United States to— (1)protect the due process rights of State and local law enforcement officers and ensure equality and fairness of treatment among such officers; (2)provide continued police protection to the general public; (3)provide for the general welfare and ensure domestic tranquility; and (4)prevent any impediments to the free flow of commerce, under the rights guaranteed under the United States Constitution and Congress’ authority thereunder.

3.

Discipline, accountability, and due process rights of officers

Part H of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3782 et seq.) is amended by adding at the end the following new section:

820.

Discipline, accountability, and due process rights of State and local law enforcement officers

(a)

Definitions

In this section: (1)

Disciplinary action

The term disciplinary action means any adverse personnel action taken against a law enforcement officer in response to a suspected violation of any personnel rule, regulation, policy, procedure, or directive by such officer, and shall include suspension, reduction in pay, rank, or other employment benefit, dismissal, transfer, reassignment, unreasonable denial of secondary employment, denial of promotion, or unpaid leave from employment. (2)

Disciplinary hearing

The term disciplinary hearing means an administrative hearing initiated by a law enforcement agency against a law enforcement officer which may result in disciplinary action. (3)

Investigation

The term investigation— (A)means an action taken to determine whether a law enforcement officer violated a rule, regulation, policy, procedure, or directive of a public agency; and (B)includes— (i)asking questions of any other law enforcement officer or non-law enforcement officer (directly related to the actions for which the officer is being investigated); (ii)conducting observations; (iii)seizing property; (iv)reviewing and evaluating reports, records, or other documents; and (v)examining physical evidence. (4)

Law enforcement officer

The terms law enforcement officer and officer have the meaning given the term law enforcement officer in section 1204, except that the term does not include a law enforcement officer employed by the United States, or any department, agency, or instrumentality thereof. (5)

Personnel record

The term personnel record means any document or file, whether in written or electronic form and irrespective of location, that has been or may be used in determining the qualifications of a law enforcement officer for employment, evaluation, promotion, transfer, additional compensation, termination, or any disciplinary action. (6)

Public agency and law enforcement agency

The terms public agency and law enforcement agency each have the meaning given the term public agency in section 1204, except that the terms do not include the United States, or any department, agency, or instrumentality thereof. (7)

Lie detector

The term lie detector means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual. (b)

Applicability

(1)

In general

This section sets forth the due process rights, including procedures, that shall be afforded a law enforcement officer who is the subject of an investigation or disciplinary hearing. (2)

Nonapplicability

This section does not apply in the case of— (A)an investigation of specifically alleged conduct by a law enforcement officer that, if proven, would constitute a violation of a statute providing for criminal penalties; or (B)a non-disciplinary action taken in good faith on the basis of the employment-related performance of law enforcement officers, and those serving in a law enforcement capacity holding an elected or appointed office. (c)

Effective procedures for receipt, review, and investigation of complaints against law enforcement officers

Not later than 1 year after the effective date of the Law Enforcement Officers Procedural Bill of Rights Act of 2007, each law enforcement agency shall adopt and comply with a written complaint procedure that— (1)authorizes persons from within and outside the law enforcement agency to submit written complaints about a law enforcement officer to— (A)the law enforcement agency employing the law enforcement officer; or (B)any other law enforcement agency charged with investigating such complaints; (2)sets forth the procedures for the investigation and disposition of such complaints; (3)provides for public access to required forms and other information concerning the submission and disposition of written complaints; and (4)requires notification to the complainant in writing of the final disposition of the complaint and the reasons for such disposition. (d)

Initiation of an investigation

(1)

In general

An investigation based on a complaint from within or outside the law enforcement agency shall commence not later than 15 days after the receipt of the complaint by— (A)the law enforcement agency employing the law enforcement officer against whom the complaint has been made; or (B)any other law enforcement agency charged with investigating such a complaint. (2)

Interrogations; conditions

When any law enforcement officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing law enforcement department, that could lead to disciplinary action, the interrogation shall be conducted under the following conditions: (A)The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer is on duty, or during the normal waking hours for the law enforcement officer, unless the seriousness of the investigation requires otherwise. If the interrogation does occur during off-duty time of the law enforcement officer being interrogated, the law enforcement officer shall be compensated for any such off-duty time in accordance with regular department procedures. (B)The law enforcement officer under investigation shall be informed prior to the interrogation of the rank, name, and command of the officer in charge of the interrogation, the interrogating officers, and all other persons to be present during the interrogation. All questions directed to the law enforcement officer under interrogation shall be asked by and through no more than two interrogators at one time. The law enforcement officer under investigation shall be informed of the nature of the investigation no less than 24 hours prior to any interrogation. (C)The interrogation session shall be for a reasonable period of time, taking into consideration the gravity and complexity of the issue being investigated. The officer under interrogation shall be allowed to attend to his or her own personal physical necessities. (D)The law enforcement officer under interrogation shall not be subjected to offensive language or threatened with disciplinary action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in disciplinary action. No promise of reward shall be made as an inducement to answering any question. The employer shall not cause the law enforcement officer under interrogation to be subjected to visits by the press or news media without the express consent of the officer, nor shall the name, home address, or photograph of the officer be given to the press or news media without the officer’s express consent. (E)No statement made during interrogation by a law enforcement officer under duress, coercion, or threat shall be admissible in any subsequent civil proceeding against that officer. (F)The complete interrogation of a law enforcement officer may be electronically recorded. If a recording is made of the interrogation, the law enforcement officer shall have access to review the recording if any further proceedings are contemplated and prior to any further interrogation at a subsequent time. The law enforcement officer shall be entitled, at no expense to the law enforcement officer, to a transcribed copy of any notes made by a stenographer and to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed confidential may be entered in the officer's personnel file. The law enforcement officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation. (G)If prior to or during the interrogation of a law enforcement officer it is deemed that the officer may be charged with a criminal offense, the officer shall be immediately informed of his or her constitutional rights, and shall be entitled to counsel. Disciplinary action based solely on criminal charges shall not be made final until the criminal investigation of such charges has been completed, and all court proceedings are concluded. (H)Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that could reasonably result in disciplinary action against any law enforcement officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation. The representative shall not be a person subject to the same investigation. The representative shall not be required to disclose, nor be subject to any disciplinary action for refusing to disclose, any information received from the officer under investigation for non-criminal matters. This subparagraph shall not apply to any interrogation of a law enforcement officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other law enforcement officer, nor shall this subparagraph apply to an investigation concerned solely and directly with alleged criminal activities. (e)

Sanctions; disciplinary action

(1)No law enforcement officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances. (2)No law enforcement officer shall be subjected to disciplinary action, denied promotion, or threatened with any such treatment, because of the lawful exercise of the rights granted under this section, or the exercise of any rights under any existing administrative grievance procedure. (3)Nothing in this subsection shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police or chief administrative officer of a law enforcement department. (4)(A)Except as provided in this section, no disciplinary action or denial of promotion on grounds other than merit shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year after the date on which the law enforcement department was notified of the allegation of the act, omission, or other misconduct. (B)Subparagraph (A) shall only apply with respect to an investigation in response to an act, omission, or other misconduct that occurred on or after the effective date of this section. (5)In the event that the law enforcement department determines that disciplinary action may be taken, the department shall notify the law enforcement officer of any proposed disciplinary action within 15 days, except in any of the following circumstances: (A)If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall be extended until 30 days after the completion of such investigation or prosecution. (B)If the law enforcement officer voluntarily waives the 15 day period in writing, the time period shall be extended for the period of time specified in the written waiver. (C)If the investigation is a multi-jurisdictional investigation that requires a reasonable extension for coordination of the involved agencies. (D)If the law enforcement officer who is being investigated is incapacitated or is otherwise unavailable. (E)If the investigation involves an allegation of workers' compensation fraud on the part of the law enforcement officer. (6)Where a pre-disciplinary response or grievance procedure is required or utilized, the time used to conduct such a pre-disciplinary response or procedure shall not be governed or limited by this section. (7)If, after investigation and any pre-disciplinary response or procedure, the law enforcement department decides to take disciplinary action, the law enforcement department shall notify the law enforcement officer in writing of its decision. Such notification shall include the date that the disciplinary action will be imposed. Such disciplinary action shall commence within 30 days of the date of the decision by the law enforcement department, except in the case of a law enforcement officer who is unavailable for disciplinary action. (f)

Administrative appeal

(1)A law enforcement officer disciplined under this section shall have the right to make an administrative appeal within 30 days after the imposition of discipline to— (A)an independent commission, board, panel, or; (B)a hearing officer as mutually agreed to by the law enforcement officer and the law enforcement department. (2)Any administrative hearing under this section shall follow any applicable evidentiary procedures provided under State law. (3)Any decision of the commission, board, panel, or hearing officer shall be for just cause. (4)No disciplinary action or denial of promotion on grounds other than merit shall be undertaken by any law enforcement department against any law enforcement officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the law enforcement officer with an opportunity for administrative appeal. (5)No chief administrator of a law enforcement department may be removed by a law enforcement department, or appointing authority, without providing the chief administrative officer with written notice of removal, the reason or reasons therefore, and an opportunity for administrative appeal. (g)

Officer involved shootings

A law enforcement officer is entitled to all constitutional guarantees afforded to any private citizen who is under investigation for an alleged criminal act. (h)

Personnel files

(1)Except for administrative purposes and purposes of departmental evaluation, personnel files of law enforcement officers shall be sealed. Information contained in a law enforcement officer’s personnel file shall be considered privileged. (2)(A)Except as provided in subparagraph (B), no law enforcement officer shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer, without the law enforcement officer having first read and signed the instrument containing the adverse comment, indicating that he or she is aware of such comment. (B)If a law enforcement officer refuses to read or sign an instrument as described in subparagraph (A), the officer’s refusal shall be noted in writing on the instrument, the instrument shall be signed or initialed by another officer who witnessed the law enforcement officer’s refusal, and the instrument shall be entered in the appropriate personnel or other file. (3)A law enforcement officer shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment, and shall be available for the purpose of any review or possible appeal. (4)Every law enforcement department shall, upon the request of a law enforcement officer, permit the officer to inspect personnel files that are used or have been used to determine the officer's qualifications for employment, evaluation, promotion, additional compensation, or termination or other disciplinary action. Such inspection shall be permitted during usual business hours, with no loss of compensation to the officer. (5)Each employer shall keep each law enforcement officer's personnel file or a true and correct copy thereof as long as the officer is still an active employee of the employer, and shall make the file or copy thereof available within a twenty-four hour period of time after a request therefore by the officer. (6)If, after a law enforcement officer has examined his or her personnel file, the officer believes that any portion of the material is mistakenly or unlawfully placed in the file, the officer may request, in writing, that the mistaken or unlawful portion be corrected or deleted. Any request made pursuant to this paragraph shall include a statement by the officer describing the corrections or deletions requested and the reasons supporting those corrections or deletions. A statement submitted pursuant to this paragraph shall become part of the personnel file of the officer. (7)Within 30 days after receipt of a request under paragraph (6), the employer shall either grant the officer's request or notify the officer of the decision to deny the request. If the employer denies the request, in whole or in part, the employer shall provide to the officer, in writing, the reasons for denying the request, and that written statement shall become part of the personnel file of the officer. (i)

Lie detectors

(1)No law enforcement officer shall be subjected to a lie detector test as part of an investigation conducted under this section. (2)No disciplinary action or other recrimination shall be taken against a law enforcement officer for refusing to submit to a lie detector test, nor shall any comment regarding an officer’s decision to submit to or refuse such a test be entered in the investigator's notes or in any other file or document, nor shall any testimony or evidence regarding such a decision by an officer be admissible at a subsequent hearing, trial, or proceeding, whether judicial or administrative. (j)

Protection of personal records and personal property

(1)No law enforcement officer shall be required as a condition of employment by his or her employing law enforcement department or other public agency to consent to the use of his or her photograph or identity as a law enforcement officer on the Internet for any purpose if that officer reasonably believes that the disclosure may result in threat, harassment, intimidation, or harm to that officer or his or her family. (2)For purposes of job assignment or other personnel action, no law enforcement officer shall be required or requested to disclose any item of his property, income, assets, source of income, debts, or personal or domestic expenditures (including those of any member of his family or household) unless such information— (A)is obtained or required under State law or proper legal procedure; (B)tends to indicate a conflict of interest with respect to the performance of the officer’s official duties; or (C)is necessary for the employing agency to ascertain the desirability of assigning the law enforcement officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered. (3)No law enforcement department shall deny or refuse to any law enforcement officer the rights and protections guaranteed to the officer by this section. (k)

Court of jurisdiction; judicial enforcement

(1)The appropriate State court in the State in which a law enforcement department is located shall have original jurisdiction over any proceeding brought by any law enforcement officer against any law enforcement department for alleged violations of this section. Nothing in this subsection shall be construed, by reason of a claim arising under this section, to deny to the courts of the United States supplemental jurisdiction over any Federal law claim for which such courts have jurisdiction under section 1367 of title 28, United States Code, or any other provision of law. (2)In any case where the court finds that a law enforcement department has violated any of the provisions of this section, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the law enforcement department from taking any disciplinary action against the law enforcement officer, attorney fees, and any other remedies deemed appropriate by the court. (3)If the court finds that a bad faith or frivolous denial of rights, or a malicious filing for an improper purpose, has been brought pursuant to this section, the court may order sanctions against the offending party, the party’s attorney, or both. Such sanctions may include reasonable expenses incurred by the opposing party (including attorney's fees), as the court deems appropriate. Nothing in this paragraph is intended to subject actions or filings under this section to rules or standards that are different from those applicable to other civil actions or filings. Any law enforcement department which has adopted, through the action of its governing body or its official designee, any procedure which provides to law enforcement officers, at a minimum, the same rights and protections as provided pursuant to this section shall not be subject to this section with regard to such a procedure. (4)Nothing in this section shall in any way be construed to limit the use of any public safety agency or any law enforcement officer in the fulfilling of mutual aid agreements with other jurisdictions or agencies, nor shall this section be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies involved. (l)

On scene investigations

During an on-scene investigation of an officer-involved shooting incident, the officer who was involved in the shooting and used deadly force is entitled to attorney representation of the officer’s choice (within reason) prior to and during interviews by investigators. An attorney representing the officer involved in an officer-involved shooting incident should have the right, within reason, to counsel the officer at the scene prior to an interview by an investigator. (m)

Law enforcement agencies right To protect crime scenes

(1)Every law enforcement agency is entitled to protect the integrity of their crime scene investigation. (2)A law enforcement agency has the right, when a law enforcement officer’s attorney is present, to prohibit the officer and attorney from entering the actual crime scene so that evidence is not disturbed. (n)

States’ rights

Nothing in this section may be construed— (1)to preempt any State or local law, or any provision of a State or local law, in effect on the date of enactment of the Law Enforcement Officers Procedural Bill of Rights Act of 2007, that confers a right or a protection that is substantially similar to a right or protection afforded by this section; or (2)to prohibit the enactment of any State or local law that confers a right or protection that is substantially similar to a right or protection afforded by this section. (o)

Collective bargaining agreements

Nothing in this section shall be construed to— (1)preempt any provision in a mutually agreed-upon collective bargaining agreement, in effect on the date of enactment of the Law Enforcement Officers Procedural Bill of Rights Act of 2007, that provides for substantially the same or a greater right or protection than a right or protection afforded under this section; or (2)prohibit the negotiation of any additional right or protection for an officer who is subject to any collective bargaining agreement. (p)

Prohibition of Federal control over State and local criminal justice agencies

Nothing in this section shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control of any law enforcement department or any criminal justice agency of any State or any political subdivision thereof.

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