[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1972 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1972

  To amend the Omnibus Crime Control and Safe Streets Act of 1968 to 
     provide standards and procedures to guide 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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 2, 2009

Mr. Stupak (for himself and Mr. Paulsen) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend the Omnibus Crime Control and Safe Streets Act of 1968 to 
     provide standards and procedures to guide 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.

    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 Officer's Procedural 
Bill of Rights Act of 2009''.

SEC. 2. FINDINGS; DECLARATION OF PURPOSE AND 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 effectively and fairly in 
        relation to 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 rights of law enforcement officers to engage in or 
        refrain from political activity while off-duty, or to run as 
        candidates for public office, unless such service is found to 
        be in conflict with their service as officers, are protected by 
        the first amendment of the United States Constitution;
            (5) 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;
            (6) there are serious implications for the public safety of 
        the citizens and residents of the United States which threatens 
        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 and thorough 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
            (7) 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 Purpose and 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.

SEC. 3. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS RIGHTS OF OFFICERS.

    The Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
3782 et seq.) is amended--
            (1) by redesignating part JJ, as added by section 952 of 
        Public Law 110-315 (relating to Loan Repayment for Prosecutors 
        and Public Defenders), as part LL, and moving such part so that 
        such part follows part KK;
            (2) in part LL, as so redesignated and moved by paragraph 
        (1), by redesignating section 3001 as section 3021; and
            (3) by adding at the end the following new part:

``PART MM--DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS RIGHTS OF STATE 
                   AND LOCAL LAW ENFORCEMENT OFFICERS

``SEC. 3031. 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 an alleged violation of any 
        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, unpaid leave from employment, or other adverse 
        actions.
            ``(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) Summary suspension.--The term `summary suspension' 
        means the temporary action by a law enforcement agency of 
        relieving a law enforcement officer from the active performance 
        of law enforcement duties without a reduction in pay or 
        benefits when the law enforcement agency, or an official within 
        that agency, determines that there is probable cause, based 
        upon the conduct of the law enforcement officer, to believe 
        that the law enforcement officer poses an immediate threat to 
        the safety of that officer, others, or the property of others.
            ``(4) Investigation.--The term `investigation' means an 
        action taken to determine whether a law enforcement officer 
        violated a rule, regulation, policy, procedure, or directive, 
        which may include--
                    ``(A) asking questions of any other law enforcement 
                officer or nonlaw enforcement officer;
                    ``(B) conducting observations;
                    ``(C) asking questions of law enforcement officers 
                during an on scene investigation of an officer involved 
                shooting;
                    ``(D) seizing property;
                    ``(E) reviewing and evaluating reports, records, or 
                other documents; and
                    ``(F) examining physical evidence.
            ``(5) Law enforcement officer.--The terms `law enforcement 
        officer' and `officer' have the meaning given the term `law 
        enforcement officer' in section 1204, except the term does not 
        include a law enforcement officer employed by the United 
        States, or any department, agency, or instrumentality thereof.
            ``(6) 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, promotion, transfer, additional compensation, 
        termination, or any other disciplinary action.
            ``(7) 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 
        the terms do not include the United States, or any department, 
        agency, or instrumentality thereof.
            ``(8) 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.
            ``(9) Summary punishment.--The term `summary punishment' 
        means any punishment imposed for a violation of law that--
                    ``(A) does not result in any disciplinary action; 
                or
                    ``(B) has been negotiated and agreed upon by the 
                law enforcement agency and the law enforcement officer, 
                based upon a written waiver by the officer of the 
                rights of that officer under subsection (h) and any 
                other applicable law or constitutional provision, after 
                consultation with the counsel or representative of that 
                officer.
    ``(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 nondisciplinary 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.--
            ``(1) Complaint process.--Not later than one year after the 
        effective date of this section, each law enforcement agency 
        shall adopt and comply with a written complaint procedure 
        that--
                    ``(A) authorizes persons from within and outside 
                the law enforcement agency to submit written complaints 
                about a law enforcement officer to--
                            ``(i) the law enforcement agency employing 
                        the law enforcement officer; or
                            ``(ii) any other law enforcement agency 
                        charged with investigating such complaints;
                    ``(B) sets forth the procedures for the 
                investigation and disposition of such complaints;
                    ``(C) provides for public access to required forms 
                and other information concerning the submission and 
                disposition of written complaints; and
                    ``(D) requires notification to the complainant in 
                writing of the final disposition of the complaint and 
                the reasons for such disposition.
            ``(2) Initiation of an investigation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), 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--
                            ``(i) the law enforcement agency employing 
                        the law enforcement officer against whom the 
                        complaint has been made; or
                            ``(ii) any other law enforcement agency 
                        charged with investigating such a complaint.
                    ``(B) Exception.--Subparagraph (A) shall not apply 
                if--
                            ``(i) the law enforcement agency determines 
                        from the face of the complaint that each 
                        allegation does not constitute a violation of 
                        law; or
                            ``(ii) the complainant fails to comply 
                        substantially with the complaint procedure of 
                        the law enforcement agency established under 
                        this section.
            ``(3) Conflict of interest.--The complainant or victim of 
        the alleged conduct giving rise to an investigation under this 
        subsection or any other individual with a conflict of interest 
        may not conduct or supervise the investigation or serve as an 
        investigator.
    ``(d) Notice of Investigation.--
            ``(1) In general.--Any law enforcement officer who is the 
        subject of an investigation shall be notified of the 
        investigation not less than 24 hours before the commencement of 
        questioning or before otherwise being required to provide 
        information to an investigating agency.
            ``(2) Contents of notice.--Notice given under paragraph (1) 
        shall include--
                    ``(A) the nature and scope of the investigation;
                    ``(B) a description of any allegation contained in 
                a written complaint;
                    ``(C) a description of each violation of law 
                alleged in the complaint for which suspicion exists 
                that the officer may have engaged in conduct that may 
                subject the officer to disciplinary action; and
                    ``(D) the name, rank, and command of the officer or 
                any other individual who will be conducting the 
                investigation.
    ``(e) Rights of Law Enforcement Officers Prior to and During 
Questioning Incidental to an Investigation.--If a law enforcement 
officer is subjected to questioning incidental to an investigation that 
may result in disciplinary action against the officer, the following 
minimum safeguards shall apply:
            ``(1) Counsel and representation.--
                    ``(A) In general.--Any law enforcement officer 
                under investigation shall be entitled to effective 
                counsel by an attorney or representation by any other 
                person who the officer chooses, such as an employee 
                representative, or both, immediately before and during 
                the entire period of any questioning session, unless 
                the officer consents in writing to being questioned 
                outside the presence of counsel or representative.
                    ``(B) Private consultation.--During the course of 
                any questioning session, the officer shall be afforded 
                the opportunity to consult privately with counsel or a 
                representative, if such consultation does not 
                repeatedly and unnecessarily disrupt the questioning 
                period.
                    ``(C) Unavailability of counsel.--If the counsel or 
                representative of the law enforcement officer is not 
                available within 24 hours of the time set for the 
                commencement of any questioning of that officer, the 
                investigating law enforcement agency shall grant a 
                reasonable extension of time for the law enforcement 
                officer to obtain counsel or representation.
            ``(2) Reasonable hours and time.--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.
            ``(3) Place of questioning.--Unless the officer consents in 
        writing to being questioned elsewhere, any questioning of a law 
        enforcement officer under investigation shall take place--
                    ``(A) at the office of the individual conducting 
                the investigation on behalf of the law enforcement 
                agency employing the officer under investigation; or
                    ``(B) the place at which the officer under 
                investigation reports for duty.
            ``(4) Identification of questioners.--Before the 
        commencement of any questioning, a law enforcement officer 
        under investigation shall be informed of--
                    ``(A) the name, rank, and command of each officer 
                or other individual who will conduct the questioning; 
                and
                    ``(B) the relationship between each such individual 
                conducting the questioning and the law enforcement 
                agency employing the officer under investigation.
            ``(5) No more than two questioners.--All questions directed 
        to the law enforcement officer under interrogation shall be 
        asked by and through no more than two interrogators at one 
        time.
            ``(6) Reasonable time period.--Any questioning of a law 
        enforcement officer under investigation shall be for a 
        reasonable period of time, taking into consideration the 
        gravity and complexity of the issue being investigated, and 
        shall allow reasonable periods for the rest and personal 
        necessities of the officer and the counsel or representative of 
        the officer, if such person is present.
            ``(7) No threats, false statements, or promises to be 
        made.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), the law enforcement officer shall not 
                be subjected to offensive language, threats, misleading 
                statements, or promises of a reward in attempts to 
                induce the officer to answer any question, give any 
                statement, or otherwise provide information.
                    ``(B) Exception.--The law enforcement agency 
                employing a law enforcement officer under investigation 
                may require the officer to make a statement relating to 
                the investigation by explicitly threatening 
                disciplinary action, including termination, only if--
                            ``(i) the officer has received a written 
                        grant of use and derivative use immunity or 
                        transactional immunity by a person authorized 
                        to grant such immunity; and
                            ``(ii) the statement given by the law 
                        enforcement officer under such an immunity may 
                        not be used in any subsequent criminal 
                        proceeding against that officer.
            ``(8) Coercion.--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.
            ``(9) Criminal charges.--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.
            ``(10) Recording.--
                    ``(A) In general.--All questioning of a law 
                enforcement officer under an investigation shall be 
                recorded in full, in writing or by electronic device, 
                and a copy of the transcript shall be provided to the 
                officer under investigation, free of charge, before any 
                subsequent period of questioning or the filing of any 
                charge against that officer.
                            ``(i) Except as provided in clause (ii) a 
                        transcribed copy of any notes made by a 
                        stenographer and any reports of complaints made 
                        by investigators or other persons, shall be 
                        made available to the law enforcement officer.
                            ``(ii) Clause (i) does not apply if the 
                        notes or reports have been deemed to be 
                        confidential by the investigating agency. No 
                        notes or reports that have been deemed to be 
                        confidential may be included in the officer's 
                        personnel file.
                    ``(B) Separate recording.--To ensure the accuracy 
                of the recording, an officer may utilize a separate 
                electronic recording device, and a copy of any such 
                recording (or the transcript) shall be provided to the 
                public agency conducting the questioning, if that 
                agency so requests.
            ``(11) Use of honesty testing devices.--
                    ``(A) No law enforcement officer under 
                investigation may be compelled to submit to the use of 
                a lie detector, as defined in section 2 of the Employee 
                Polygraph Protection Act of 1988 (29 U.S.C. 2001).
                    ``(B) 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.
            ``(12) Use of the media.--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.
    ``(f) Notice of Investigative Findings and Disciplinary 
Recommendation and Opportunity To Submit a Written Response.--
            ``(1) Notice.--Except as provided in paragraph (3), not 
        later than 15 days after the conclusion of an investigation 
        under this subsection, the person in charge of the 
        investigation or the designee of that person shall notify the 
        law enforcement officer who was the subject of the 
        investigation, in writing, of the investigative findings and 
        any recommendations for disciplinary action.
            ``(2) Opportunity to submit written response.--
                    ``(A) In general.--Not later than 30 days after 
                receipt of a notification under paragraph (1), and 
                before the filing of any charge seeking the discipline 
                of such officer or the commencement of any disciplinary 
                proceeding under subsection (g), the law enforcement 
                officer who was the subject of the investigation may 
                submit a written response to the findings and 
                recommendations included in the notification.
                    ``(B) Contents of response.--The response submitted 
                under subparagraph (A) may include references to 
                additional documents, physical objects, witnesses, or 
                any other information that the law enforcement officer 
                believes may provide exculpatory evidence.
            ``(3) Exceptions.--Permissible exceptions to paragraph (1) 
        are as follows:
                    ``(A) If the act, omission, or other allegation of 
                misconduct is also the subject of a criminal 
                investigation or prosecution, the time during which the 
                criminal investigation or 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.
    ``(g) Disciplinary Hearing.--
            ``(1) Notice of opportunity for hearing.--Except in a case 
        of summary punishment or summary suspension (subject to 
        subsection (i) or (j), respectively), before the imposition of 
        any disciplinary action the law enforcement agency shall notify 
        the officer that the officer is entitled to a due process 
        hearing by an independent and impartial hearing officer or 
        board.
            ``(2) Requirement of determination of violation.--No 
        disciplinary action may be taken against a law enforcement 
        officer unless an independent and impartial hearing officer or 
        board determines, after a hearing and in accordance with the 
        requirements of this subsection, that the law enforcement 
        officer committed a violation of a rule, regulation, policy, 
        procedure, or directive.
            ``(3) Time limit.--No disciplinary charge may be brought 
        against a law enforcement officer unless--
                    ``(A) the charge is filed not later than the 
                earlier of--
                            ``(i) 1 year after the date on which the 
                        law enforcement agency filing the charge had 
                        knowledge or reasonably should have had 
                        knowledge of an alleged violation of a rule, 
                        regulation, policy, procedure, or directive; or
                            ``(ii) 90 days after the commencement of an 
                        investigation; or
                    ``(B) the requirements of this paragraph are waived 
                in writing by the officer or the counsel or 
                representative of the officer.
            ``(4) Notice of hearing.--Unless waived in writing by the 
        officer or the counsel or representative of the officer, not 
        later than 30 days after the filing of a disciplinary charge 
        against a law enforcement officer, the law enforcement agency 
        filing the charge shall provide written notification to the law 
        enforcement officer who is the subject of the charge, of--
                    ``(A) the date, time, and location of any 
                disciplinary hearing, which shall be scheduled in 
                cooperation with the law enforcement officer, or the 
                counsel or representative of the officer, and which 
                shall take place not earlier than 30 days and not later 
                than 60 days after notification of the hearing is given 
                to the law enforcement officer under investigation;
                    ``(B) the name and mailing address of the 
                independent and impartial hearing officer, or the names 
                and mailing addresses of the independent and impartial 
                hearing board members; and
                    ``(C) the name, rank, command, and address of the 
                law enforcement officer prosecuting the matter for the 
                law enforcement agency, or the name, position, and 
                mailing address of the person prosecuting the matter 
                for a public agency, if the prosecutor is not a law 
                enforcement officer.
            ``(5) Access to documentary evidence and investigative 
        file.--Unless waived in writing by the law enforcement officer 
        or the counsel or representative of that officer, not later 
        than 15 days before a disciplinary hearing described in this 
        subsection, the law enforcement officer shall be provided 
        with--
                    ``(A) a copy of the complete file of the pre-
                disciplinary investigation; and
                    ``(B) access to and, if so requested, copies of all 
                documents, including transcripts, records, written 
                statements, written reports, analyses, and 
                electronically recorded information that--
                            ``(i) contain exculpatory information;
                            ``(ii) are intended to support any 
                        disciplinary action; or
                            ``(iii) are to be introduced in the 
                        disciplinary hearing.
            ``(6) Examination of physical evidence.--Unless waived in 
        writing by the law enforcement officer or the counsel or 
        representative of that officer--
                    ``(A) not later than 15 days before a disciplinary 
                hearing, the prosecuting agency shall notify the law 
                enforcement officer or the counsel or representative of 
                that officer of all physical, nondocumentary evidence; 
                and
                    ``(B) not later than 15 days before a disciplinary 
                hearing, the prosecuting agency shall provide a 
                reasonable date, time, place, and manner for the law 
                enforcement officer or the counsel or representative of 
                the law enforcement officer to examine the evidence 
                described in subparagraph (A).
            ``(7) Identification of witnesses.--Unless waived in 
        writing by the law enforcement officer or the counsel or 
        representative of the officer, not later than 15 days before a 
        disciplinary hearing, the prosecuting agency shall notify the 
        law enforcement officer or the counsel or representative of the 
        officer, of the name and address of each witness for the law 
        enforcement agency employing the law enforcement officer.
            ``(8) Representation.--During a disciplinary hearing, the 
        law enforcement officer who is the subject of the hearing shall 
        be entitled to due process, including--
                    ``(A) the right to be represented by counsel or a 
                representative of the officer's choosing;
                    ``(B) the right to confront and examine all 
                witnesses against the officer; and
                    ``(C) the right to call and examine witnesses on 
                behalf of the officer.
            ``(9) Hearing board and procedure.--
                    ``(A) In general.--A State or local government 
                agency, other than the law enforcement agency employing 
                the officer who is subject of the disciplinary hearing, 
                shall--
                            ``(i) determine the composition of an 
                        independent and impartial disciplinary hearing 
                        board;
                            ``(ii) appoint an independent and impartial 
                        hearing officer; and
                            ``(iii) establish such procedures as may be 
                        necessary to comply with this section.
                    ``(B) Peer representation on disciplinary hearing 
                board.--A disciplinary hearing board that includes 
                employees of the law enforcement agency employing the 
                law enforcement officer who is the subject of the 
                hearing, shall include not less than 1 law enforcement 
                officer of equal or lesser rank to the officer who is 
                the subject of the hearing.
            ``(10) Summonses and subpoenas.--
                    ``(A) In general.--The disciplinary hearing board 
                or independent hearing officer--
                            ``(i) shall have the authority to issue 
                        summonses or subpoenas, on behalf of--
                                    ``(I) the law enforcement agency 
                                employing the officer who is the 
                                subject of the hearing; or
                                    ``(II) the law enforcement officer 
                                who is the subject of the hearing; and
                            ``(ii) upon written request of either the 
                        agency or the officer, shall issue a summons or 
                        subpoena, as appropriate, to compel the 
                        appearance and testimony of a witness or the 
                        production of documentary evidence.
                    ``(B) Effect of failure to comply with summons or 
                subpoena.--With respect to any failure to comply with a 
                summons or a subpoena issued under subparagraph (A)--
                            ``(i) the disciplinary hearing officer or 
                        board shall petition a court of competent 
                        jurisdiction to issue an order compelling 
                        compliance; and
                            ``(ii) subsequent failure to comply with 
                        such a court order issued pursuant to a 
                        petition under clause (i) shall--
                                    ``(I) be subject to contempt of a 
                                court proceedings according to the laws 
                                of the jurisdiction within which the 
                                disciplinary hearing is being 
                                conducted; and
                                    ``(II) result in the recess of the 
                                disciplinary hearing until the witness 
                                becomes available to testify and does 
                                testify or is held in contempt.
            ``(11) 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 to the general 
        public.
            ``(12) Recording.--All aspects of a disciplinary hearing, 
        including pre-hearing motions, shall be recorded by electronic 
        media or transcription.
            ``(13) Sequestration of witnesses.--Either side in a 
        disciplinary hearing may move for and be entitled to 
        sequestration of witnesses.
            ``(14) Testimony under oath.--The hearing officer or board 
        shall administer an oath or affirmation to each witness, who 
        shall testify subject to the laws of perjury of the State in 
        which the disciplinary hearing is being conducted.
            ``(15) Final decision on each charge.--
                    ``(A) In general.--At the conclusion of the 
                presentation of all the evidence and after oral or 
                written argument, the hearing officer or board shall 
                deliberate and render a written final decision on each 
                charge.
                    ``(B) Final decision isolated to charge brought.--
                The hearing officer or board may not find that the law 
                enforcement officer who is the subject of the hearing 
                is liable for disciplinary action for any violation, as 
                to which the officer was not charged.
            ``(16) Burden of persuasion and standard of proof.--The 
        burden of persuasion or standard of proof of the prosecuting 
        agency shall be--
                    ``(A) by clear and convincing evidence as to each 
                charge alleging false statement or representation, 
                fraud, dishonesty, deceit, moral turpitude, or criminal 
                behavior on the part of the law enforcement officer who 
                is the subject of the charge; and
                    ``(B) by a preponderance of the evidence as to all 
                other charges.
            ``(17) Factors of just cause to be considered by the 
        hearing officer or board.--A law enforcement officer who is the 
        subject of a disciplinary hearing shall not be found guilty of 
        any charge or subjected to any disciplinary action unless the 
        disciplinary hearing board or independent hearing officer finds 
        that--
                    ``(A) the officer who is the subject of the charge 
                could reasonably be expected to have had knowledge of 
                the probable consequences of the alleged conduct set 
                forth in the charge against the officer;
                    ``(B) the rule, regulation, policy, procedure, or 
                directive that the officer who is the subject of the 
                charge allegedly violated is reasonable;
                    ``(C) the charging party, before filing the charge, 
                made a reasonable, fair, and objective effort to 
                discover whether the officer did in fact violate the 
                rule, regulation, policy, procedure, or directive as 
                charged;
                    ``(D) the charging party did not conduct the 
                investigation arbitrarily or unfairly, or in a 
                discriminatory manner, against the officer who is the 
                subject of the charge, and the charge was brought in 
                good faith; and
                    ``(E) the proposed disciplinary action reasonably 
                relates to the seriousness of the alleged violation and 
                to the record of service of the officer who is the 
                subject of the charge.
            ``(18) Finding of no violation.--If the officer who is the 
        subject of the disciplinary hearing is found not to have 
        committed the alleged violation--
                    ``(A) the matter is concluded;
                    ``(B) no disciplinary action may be taken against 
                the officer;
                    ``(C) the personnel file of that officer may not 
                contain any reference to the charge for which the 
                officer was found not guilty; and
                    ``(D) any pay and benefits lost or deferred during 
                the pendency of the disposition of the charge shall be 
                restored to the officer as though no charge had ever 
                been filed against the officer, including salary or 
                regular pay, vacation, holidays, longevity pay, 
                education incentive pay, shift differential, uniform 
                allowance, lost overtime, other premium pay 
                opportunities, medical expenses, lost pension, and lost 
                promotional opportunities.
            ``(19) Finding of a violation.--
                    ``(A) In general.--If the officer who is the 
                subject of the charge is found to have committed the 
                alleged violation, the hearing officer or board shall 
                make a written recommendation of a penalty to the law 
                enforcement agency employing the officer or any other 
                governmental entity that has final disciplinary 
                authority, as provided by applicable State or local 
                law.
                    ``(B) Penalty.--The employing agency or other 
                governmental entity may not impose a penalty greater 
                than the penalty recommended by the hearing officer or 
                board.
            ``(20) Appeal.--
                    ``(A) In general.--Any officer who has been found 
                to have committed an alleged violation shall have 30 
                days to make an appeal from a final decision of a 
                hearing officer or hearing board to a court of 
                competent jurisdiction or to an independent neutral 
                arbitrator to the extent available in any other 
                administrative proceeding under applicable State or 
                local law, or a collective bargaining agreement.
                    ``(B) Evidentiary procedures.--Any administrative 
                hearing under this section shall follow applicable 
                evidentiary procedures provided under State law.
    ``(h) Waiver of Rights.--
            ``(1) In general.--An officer who is notified that the 
        officer is under investigation or is the subject of a charge 
        may, after such notification, waive any right or procedure 
        guaranteed by this section.
            ``(2) Written waiver.--A written waiver under this 
        subsection shall be--
                    ``(A) in writing; and
                    ``(B) signed by--
                            ``(i) the officer, who shall have consulted 
                        with counsel or a representative before signing 
                        any such waiver; or
                            ``(ii) the counsel or representative of the 
                        officer, if expressly authorized by subsection 
                        (g).
    ``(i) Summary Punishment.--Nothing in this section shall preclude a 
public agency from imposing summary punishment.
    ``(j) Summary Suspension.--Nothing in this section shall be 
construed to preclude a law enforcement agency from imposing a summary 
suspension on a law enforcement officer, except that any such 
suspension shall--
            ``(1) be followed by a hearing in accordance with the 
        requirements of subsection (g); and
            ``(2) not deprive the affected officer of any pay or 
        benefit.
    ``(k) Retaliation for Exercising Rights.--There shall be no 
imposition of, or threat of, disciplinary action or other penalty 
against a law enforcement officer for the exercise of any right 
provided to the officer under this section.
    ``(l) Other Remedies Not Impaired.--Nothing in this section may be 
construed to impair any other right or remedy that a law enforcement 
officer may have under any constitution, statute, ordinance, order, 
rule, regulation, procedure, written policy, collective bargaining 
agreement, or any other source.
    ``(m) Declaratory or Injunctive Relief.--A law enforcement officer 
who is aggrieved by a violation of, or is otherwise denied any right 
afforded by, the Constitution of the United States, a State 
constitution, this section, or any administrative rule or regulation 
promulgated pursuant thereto, may file suit in any Federal or State 
court of competent jurisdiction for declaratory or injunctive relief to 
prohibit the law enforcement agency from violating or otherwise denying 
such right, and such court shall have jurisdiction, for cause shown, to 
restrain such a violation or denial.
    ``(n) 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.
            ``(8) A law enforcement officer shall not have access to 
        information in the personnel records of the officer if the 
        information--
                    ``(A) relates to the investigation of alleged 
                conduct that, if proven, would constitute or have 
                constituted a definite violation of a statute providing 
                for criminal penalties, but as to which no formal 
                charge was brought;
                    ``(B) contains letters of reference for the 
                officer;
                    ``(C) contains any portion of a test document other 
                than the results;
                    ``(i) is of a personal nature about another 
                officer, and if disclosure of that information in 
                nonredacted form would constitute a clearly unwarranted 
                intrusion into the privacy rights of that other 
                officer; or
                    ``(D) is relevant to any pending claim brought by 
                or on behalf of the officer against the employing 
                agency of that officer that may be discovered in any 
                judicial or administrative proceeding between the 
                officer and the employer of that officer.
    ``(o) 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.
    ``(p) 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 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.
    ``(q) 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.
    ``(r) 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 Officer's Procedural Bill of Rights Act of 
        2009, that confers a right or a protection that equals or 
        exceeds the 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 equals or exceeds a 
        right or protection afforded by this section.
    ``(s) Collective Bargaining Agreements.--Nothing in this section 
may 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 Officer's Procedural Bill of 
        Rights Act of 2009, that provides for substantially the same or 
        a greater 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.''.

SEC. 4. PROHIBITION OF FEDERAL CONTROL OVER STATE AND LOCAL CRIMINAL 
              JUSTICE AGENCIES.

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

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall take effect with respect to 
each State on the earlier of--
            (1) the date that is 2 years after the date of enactment of 
        this Act; or
            (2) the last day of the second legislative session of the 
        State that begins on or after the date of enactment of this 
        Act.
                                 <all>