[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1789 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 1789

 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.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 5, 2011

Mr. Paulsen (for himself, Ms. Sutton, Mr. LaTourette, and Mr. Pascrell) 
 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.

    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 ``State and Local Law Enforcement 
Discipline, Accountability, and Due Process Act of 2011''.

SEC. 2. FINDINGS AND DECLARATION OF PURPOSE AND POLICY.

    (a) Findings.--Congress finds that--
            (1) the rights of law enforcement officers to engage in 
        political activity or to refrain from engaging in political 
        activity, except when on duty, or to run as candidates for 
        public office, unless such service is found to be in conflict 
        with their service as officers, are activities protected by the 
        First Amendment of the United States Constitution, as applied 
        to the States through the 14th Amendment of the United States 
        Constitution, but these rights are often violated by the 
        management of State and local law enforcement agencies;
            (2) 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 aggressive enforcement of the laws, demoralizing 
        many rank and file officers in communities and States;
            (3) 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;
            (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 threatens 
        the domestic tranquility of the United States because of a lack 
        of statutory protections to ensure--
                    (A) the due process and political 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
            (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 and political 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 OF OFFICERS.

    The Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
3781 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 OF STATE AND 
                     LOCAL LAW ENFORCEMENT OFFICERS

``SEC. 3031. DISCIPLINE, ACCOUNTABILITY, AND DUE PROCESS OF STATE AND 
              LOCAL LAW ENFORCEMENT OFFICERS.

    ``(a) Definitions.--In this section:
            ``(1) Disciplinary action.--The term `disciplinary action' 
        means any adverse personnel action, including suspension, 
        reduction in pay, rank, or other employment benefit, dismissal, 
        involuntary transfer, reassignment, unreasonable denial of 
        secondary employment, or similar punitive action taken against 
        a law enforcement officer.
            ``(2) Disciplinary hearing.--The term `disciplinary 
        hearing' means an administrative hearing initiated by a law 
        enforcement agency against a law enforcement officer based on 
        an alleged violation of law that, if proven, would subject the 
        law enforcement officer to disciplinary action.
            ``(3) Emergency suspension.--The term `emergency 
        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, other persons, or the 
        property of other persons.
            ``(4) Investigation.--The term `investigation'--
                    ``(A) means an action taken to determine whether a 
                law enforcement officer violated a law by a public 
                agency or a person employed by a public agency, acting 
                alone or in cooperation with or at the direction of 
                another agency, or a division or unit within another 
                agency, regardless of a denial by such an agency that 
                any such action is not an investigation; and
                    ``(B) includes--
                            ``(i) asking questions of any other law 
                        enforcement officer or non-law enforcement 
                        officer;
                            ``(ii) conducting observations;
                            ``(iii) reviewing and evaluating reports, 
                        records, or other documents; and
                            ``(iv) 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 that such terms do 
        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, 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' have the meaning 
        given the term `public agency' in section 1204, except that 
        such terms do not include the United States, or any department, 
        agency, or instrumentality thereof.
            ``(8) Summary punishment.--The term `summary punishment' 
        means punishment imposed for a violation of law--
                    ``(A) that does not result in any disciplinary 
                action; or
                    ``(B) that 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 (i) 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 a 
                law enforcement officer.
    ``(c) Political Activity.--
            ``(1) Right to engage or not to engage in political 
        activity.--Except when on duty or acting in an official 
        capacity, a law enforcement officer shall not be prohibited 
        from engaging in political activity or be denied the right to 
        refrain from engaging in political activity.
            ``(2) Right to run for elective office.--A law enforcement 
        officer shall not be--
                    ``(A) prohibited from being a candidate for an 
                elective office or from serving in such an elective 
                office, solely because of the status of the officer as 
                a law enforcement officer; or
                    ``(B) required to resign or take an unpaid leave 
                from employment with a law enforcement agency to be a 
                candidate for an elective office or to serve in an 
                elective office, unless such service is determined to 
                be in conflict with or incompatible with service as a 
                law enforcement officer.
            ``(3) Adverse personnel action.--An action by a public 
        agency against a law enforcement officer, including requiring 
        the officer to take unpaid leave from employment, in violation 
        of this subsection shall be considered an adverse personnel 
        action within the meaning of subsection (a)(1).
    ``(d) Effective Procedures for Receipt, Review, and Investigation 
of Complaints Against Law Enforcement Officers.--
            ``(1) Complaint process.--Not later than 1 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 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 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) does 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) Complainant or victim conflict of interest.--The 
        complainant or victim of the alleged violation of law giving 
        rise to an investigation under this subsection may not conduct 
        or supervise the investigation or serve as an investigator.
    ``(e) Notice of Investigation.--
            ``(1) In general.--Any law enforcement officer who is the 
        subject of an investigation shall be notified of the 
        investigation 24 hours before the commencement of questioning 
        or to 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.
    ``(f) 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.--Any questioning of a law 
        enforcement officer under investigation shall be conducted at a 
        reasonable time when the officer is on duty, unless exigent 
        circumstances compel more immediate questioning, or the officer 
        agrees in writing to being questioned at a different time, 
        subject to the requirements of subsections (e) and (f)(1).
            ``(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 questioner.--Before the 
        commencement of any questioning, a law enforcement officer 
        under investigation shall be informed of--
                    ``(A) the name, rank, and command of the officer or 
                other individual who will conduct the questioning; and
                    ``(B) the relationship between the individual 
                conducting the questioning and the law enforcement 
                agency employing the officer under investigation.
            ``(5) Single questioner.--During any single period of 
        questioning of a law enforcement officer under investigation, 
        each question shall be asked by or through 1 individual.
            ``(6) Reasonable time period.--Any questioning of a law 
        enforcement officer under investigation shall be for a 
        reasonable period of time 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), no threat against, false or 
                misleading statement to, harassment of, or promise of 
                reward to a law enforcement officer under investigation 
                shall be made 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) 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 before any subsequent 
                period of questioning or the filing of any charge 
                against that officer.
                    ``(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.
            ``(9) Use of honesty testing devices prohibited.--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).
    ``(g) Notice of Investigative Findings and Disciplinary 
Recommendation and Opportunity To Submit a Written Response.--
            ``(1) Notice.--Not later than 30 days after the conclusion 
        of an investigation under this section, 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 (h), 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.
    ``(h) Disciplinary Hearing.--
            ``(1) Notice of opportunity for hearing.--Except in a case 
        of summary punishment or emergency suspension (subject to 
        subsection (k)), 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 law.
            ``(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 law; 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 
        paragraph (4)(A), 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, non-documentary evidence; 
                and
                    ``(B) not later than 10 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;
                    ``(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 audio tape, 
        video tape, 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 of 
                law, 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, order, or procedure 
                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, order, or procedure 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) No commission of a 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 shall 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, or other premium pay 
                opportunities, and lost promotional opportunities.
            ``(19) Commission 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.--Any officer who has been found to have 
        committed an alleged violation may 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.
    ``(i) 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 
                        (h).
    ``(j) Summary Punishment.--Nothing in this section shall preclude a 
public agency from imposing summary punishment.
    ``(k) Emergency Suspension.--Nothing in this section may be 
construed to preclude a law enforcement agency from imposing an 
emergency 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 (h); and
            ``(2) not deprive the affected officer of any pay or 
        benefit.
    ``(l) 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.
    ``(m) 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.
    ``(n) 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.
    ``(o) Protection of Law Enforcement Officer Personnel Files.--
            ``(1) Restrictions on adverse material maintained in 
        officers' personnel records.--
                    ``(A) In general.--Unless the officer has had an 
                opportunity to review and comment, in writing, on any 
                adverse material included in a personnel record 
                relating to the officer, no law enforcement agency or 
                other governmental entity may--
                            ``(i) include the adverse material in that 
                        personnel record; or
                            ``(ii) possess or maintain control over the 
                        adverse material in any form as a personnel 
                        record within the law enforcement agency or 
                        elsewhere in the control of the employing 
                        governmental entity.
                    ``(B) Responsive material.--Any responsive material 
                provided by an officer to adverse material included in 
                a personnel record pertaining to the officer shall be--
                            ``(i) attached to the adverse material; and
                            ``(ii) released to any person or entity to 
                        whom the adverse material is released in 
                        accordance with law and at the same time as the 
                        adverse material is released.
            ``(2) Right to inspection of, and restrictions on access to 
        information in, the officer's own personnel records.--
                    ``(A) In general.--Subject to subparagraph (B), a 
                law enforcement officer shall have the right to inspect 
                all of the personnel records of the officer not less 
                than annually.
                    ``(B) Restrictions.--A law enforcement officer 
                shall not have access to information in the personnel 
                records of the officer if the information--
                            ``(i) 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;
                            ``(ii) contains letters of reference for 
                        the officer;
                            ``(iii) contains any portion of a test 
                        document other than the results;
                            ``(iv) is of a personal nature about 
                        another officer, and if disclosure of that 
                        information in non-redacted form would 
                        constitute a clearly unwarranted intrusion into 
                        the privacy rights of that other officer; or
                            ``(v) 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.
    ``(p) States' Rights.--
            ``(1) In general.--Nothing in this section may be 
        construed--
                    ``(A) 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 State and Local Law 
                Enforcement Discipline, Accountability, and Due Process 
                Act of 2011, that confers a right or a protection that 
                equals or exceeds the right or protection afforded by 
                this section; or
                    ``(B) 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.
            ``(2) State or local laws preempted.--A State or local law, 
        or any provision of a State or local law, that confers fewer 
        rights or provides less protection for a law enforcement 
        officer than any provision in this section shall be preempted 
        by this section.
    ``(q) 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 State and Local Law Enforcement Discipline, 
        Accountability, and Due Process Act of 2011, 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) 2 years after the date of enactment of this Act; or
            (2) the conclusion of the second legislative session of the 
        State that begins on or after the date of enactment of this 
        Act.
                                 <all>