[Congressional Record Volume 141, Number 26 (Thursday, February 9, 1995)]
[Extensions of Remarks]
[Page E316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          THE LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS OF 1995

                                 ______


                            HON. BART STUPAK

                              of michigan

                    in the house of representatives

                       Thursday, February 9, 1995
  Mr. STUPAK. Mr. Speaker, today, Congressman Jim Lightfoot and I are 
introducing the Law Enforcement Officers' Bill of Rights.
  It will surprise some to find that the same law enforcement officials 
who lay their lives on the line every day in protecting the rights of 
American citizens are denied many of these same rights in their 
workplace. Further, the absence of a standard for investigating police 
officers for non-criminal activities has, in some cases, subjected law 
enforcement officials to threats and coercion by superiors or internal 
affairs divisions, and to arbitrary and unfair remedies to any charges.
  Mr. Lightfoot's and my bill is very simple: it would set the time and 
location for interviews regarding violations; it would require the 
appointment of counsel to represent the officer under investigation; it 
would mandate that only one interrogator be allowed to question the 
suspect during any single session--to avoid the questioning method 
known as Good Cop/Bad Cop; it would mandate that no questions be asked 
about an officer's family or financial status; it would put forth a 
system for reviews; and it would require that the officer being 
investigated be made aware of the charges he or she is facing, among 
other fundamental due process rights. Again, this legislation would 
only apply to officers being investigation for noncriminal offenses.
  As noncriminal disciplinary procedures vary widely from State to 
State, I believe that this important piece of legislation will go a 
long way to ending these ad hoc approaches to such proceedings and the 
often arbitrary and misplaced remedies that officers face. Under this 
legislation, States will have a guide path for such investigations and 
the rights of an officer, guilty or innocent, will be insured.
  Mr. Speaker, this bill could not have been introduced today without 
the hard work of the Fraternal Order of Police and the National 
Association of Police Organizations, our country's two largest 
organizations representing law enforcement officials. Their hard work 
in this effort reiterates the need and widespread support for such an 
initiative. Furthermore, President Clinton, as Governor of the State of 
Arkansas, signed similar legislation into law to apply to officers in 
Arkansas; and Attorney General Janet Reno testified in the Senate in 
1993 that such a bill is working effectively in her home State of 
Florida and that she has seen no disadvantages to it at all.
  In a bipartisan effort, Senators McConnell, from Kentucky, and Biden, 
from Delaware, have introduced this proposal in the Senate. Congressman 
Lightfoot and I are continuing this bipartisan support in the House of 
Representatives. This is not a partisan issue. This is a constitutional 
issue. Law enforcement officials facing disciplinary actions deserve 
the same fundamental protections granted to every American and I 
believe that the Law Enforcement Officers' Bill of Rights of 1995 will 
go a long way to ensuring that these rights are protected.
                                 H.R.--

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Law Enforcement Officers' 
     Bill of Rights Act of 1995''.

     SEC. 2. RIGHTS OF LAW ENFORCEMENT OFFICERS.

       (a) In General.--Part H of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.) 
     is amended by adding at the end the following new section:


                  ``rights of law enforcement officers

       ``Sec. 819. (a) Definitions.--In this section--
       ```disciplinary action' means the suspension, demotion, 
     reduction in pay or other employment benefit, dismissal, 
     transfer, or similar action taken against a law enforcement 
     officer as punishment for misconduct.
       ```disciplinary hearing' means an administrative hearing 
     initiated by a law enforcement agency against a law 
     enforcement officer, based on probable cause to believe that 
     the officer has violated or is violating a rule, regulation, 
     or procedure related to service as an officer and is subject 
     to disciplinary action.
       ```emergency suspension' means temporary action imposed by 
     the head of the law enforcement agency when that official 
     determines that there is probable cause to believe that a law 
     enforcement officer--
       ``(A) has committed a felony; or
       ``(B) poses an immediate threat to the safety of the 
     officer or others or the property of others.
       ```investigation'--
       ``(A) means the action of a law enforcement agency, acting 
     alone or in cooperation with another agency, or a division or 
     unit within an agency, or the action of an individual law 
     enforcement officer, taken with regard to another enforcement 
     officer, if such action is based on reasonable suspicion that 
     the law enforcement officer has violated, is violating, or 
     will in the future violate a statute or ordinance, or 
     administrative rule, regulation, or procedure relating to 
     service as a law enforcement officer; and
       ``(B) includes--
       ``(i) asking questions of other law enforcement officers or 
     nonlaw enforcement officers;
       ``(ii) conducting observations;
       ``(iii) evaluating reports, records, or other documents; 
     and
       ``(iv) examining physical evidence.
       ```law enforcement agency' means a State or local public 
     agency charged by law with the duty to prevent or investigate 
     crimes or apprehend or hold
      in custody persons charged with or convicted of crimes.
       ```law enforcement officer' and `officer'--
       ``(A) mean a member of a law enforcement agency serving in 
     a law enforcement position, which is usually indicated by 
     formal training (regardless of whether the officer has 
     completed or been assigned to such training) and usually 
     accompanied by the power to make arrests; and
       ``(B) include--
       [[Page E315]] ``(i) a member who serves full time, whether 
     probationary or nonprobationary, commissioned or 
     noncommissioned, career or noncareer, tenured or nontenured, 
     and merit or nonmerit; and
       ``(ii) the chief law enforcement officer of a law 
     enforcement agency.
       ```summary punishment' means punishment imposed for a minor 
     violation of a law enforcement agency's rules and regulations 
     that does not result in suspension, demotion, reduction in 
     pay or other employment benefit, dismissal, or transfer.
       ``(b) Application of Section.--
       ``(1) In general.--This section sets forth rights that 
     shall be afforded a law enforcement officer who is the 
     subject of an investigation.
       ``(2) Nonapplicability.--This section does not apply in the 
     case of--
       ``(A) a criminal investigation of a law enforcement 
     officer's conduct; or
       ``(B) a nondisciplinary action taken in good faith on the 
     basis of a law enforcement officer's employment related 
     performance.
       ``(c) Political Activity.--Except when on duty or acting in 
     an official capacity, no law enforcement officer shall be 
     prohibited from engaging in political activity or be denied 
     the right to refrain from engaging in such activity.
       ``(d) Rights of Law Enforcement Officers While Under 
     Investigation.--When a law enforcement officer is under 
     investigation that could lead to disciplinary action, the 
     following minimum standards shall apply;
       ``(1) Notice of investigation.--A law enforcement officer 
     shall be notified of the investigation prior to being 
     interviewed. Notice shall include the general nature and 
     scope of the investigation and all departmental violations 
     for which reasonable suspicion exists. No investigation based 
     on a complaint from outside the law enforcement agency may 
     commence unless the complainant provides a signed detailed 
     statement. An investigation based on a complaint from outside 
     the agency shall commence within 15 days after receipt of the 
     complaint by the agency.
       ``(2) Notice of proposed findings and recommendation.--At 
     the conclusion of the investigation, the person in charge of 
     the investigation shall inform the law enforcement officer 
     under investigation, in writing, of the investigative 
     findings and any recommendation for disciplinary action that 
     the person intends to make.
       ``(e) Rights of Law Enforcement Officers Prior to and 
     During Questioning.--When a law enforcement officer is 
     subjected to questioning that could lead to disciplinary 
     action, the following minimum standards shall apply:
       ``(1) Reasonable Hours.--Questioning of a law enforcement 
     officer shall be conducted at a reasonable hour, preferably 
     when the law enforcement officer is on duty, unless exigent 
     circumstances otherwise require.
       ``(2) Place of questioning.--Questioning of the law 
     enforcement officer shall take place at the offices of the 
     persons who are conducting the investigation or the place 
     where the law enforcement officer reports for duty, unless 
     the officer consents in writing to being questioned 
     elsewhere.
       ``(3) Identification of questioner.--The law enforcement 
     officer under investigation shall be informed, at the 
     commencement of any questioning, of the name, rank, and 
     command of the officer conducting the questioning.
       ``(4) Single questioner.--During any single period of 
     questioning of the law enforcement officer, all questions 
     shall be asked by or through a single investigator.
       ``(5) Notice of nature of investigation.--The law 
     enforcement officer under investigation shall be informed in 
     writing of the nature of the investigation prior to any 
     questioning.
       ``(6) Reasonable time period.--Any questioning of a law 
     enforcement officer in connection with an investigation shall 
     be for a reasonable period of time and shall allow for 
     reasonable periods for the rest and personal necessities of 
     the law enforcement officer.
       ``(7) No threats or promises.--Threats against, harassment 
     of, or promise of reward shall not be made in connection with 
     an investigation to induce the answering of any question. No 
     statement given by the officer may be used in a subsequent 
     criminal proceeding unless the officer has received a written 
     grant of use and derivative use immunity or transactional 
     immunity.
       ``(8) Recordation.--All questioning of any law enforcement 
     officer in connection with the investigation shall be 
     recorded in full, in writing or by electronic device, and a 
     copy of the transcript shall be made available to the officer 
     under investigation.
       ``(9) Counsel.--The law enforcement officer under 
     investigation shall be entitled to counsel (or any other one 
     person of the officer's choice) at any questioning of the 
     officer, unless the officer consents in writing to being 
     questioned outside the presence of counsel.
       ``(f) Disciplinary Hearing.--
       ``(1) Notice of opportunity for hearing.--Except in a case 
     of summary punishment or emergency suspension discribed in 
     subsection (h) if an investigation of a law enforcement 
     officer results in a recommendation of disciplinary action, 
     the law enforcement agency shall notify the law enforcement 
     officer that the law enforcement officer is entitled to a 
     hearing on the issues by a hearing officer or board prior to 
     the imposition of any disciplinary action.
       ``(2) Requirement of determination of violation.--No 
     disciplinary action may be taken unless a hearing officer or 
     board determines, pursuant to a fairly conducted disciplinary 
     hearing, that the law enforcement officer violated a statute, 
     ordinance, or published administrative rule, regulation, or 
     procedure.
       ``(3) Time limit.--No disciplinary charges may be brought 
     against a law enforcement officer unless filed within 90 days 
     after the commencement of an investigation, except for good 
     cause shown.
       ``(4) Notice of filing of charges.--The law enforcement 
     agency shall provide written, actual notification to the law 
     enforcement officer, not later than 30 days after the filing 
     of disciplinary charges, of the following:
       ``(A) The date, time, and location of the disciplinary 
     hearing, which shall take place not sooner than 30 days and 
     not later than 60 days.
      after notification to the law enforcement officer under 
     investigation unless waived in writing by the officer.
       ``(B) The name and mailing address of the hearing officer.
       ``(C) The name, rank, and command of the prosecutor, if a 
     law enforcement officer, or the name, position, and mailing 
     address of the prosecutor, if not a law enforcement officer.
       ``(5) Representation.--During a disciplinary hearing an 
     officer shall be entitled to be represented by counsel or 
     nonattorney representative.
       ``(6) Hearing board and procedure.--(A) A State shall 
     determine the composition of a disciplinary hearing board and 
     the procedures for a disciplinary hearing.
       ``(B) A disciplinary hearing board that includes employees 
     of the law enforcement agency of which the officer who is the 
     subject of the hearing is a member shall include at least 1 
     law enforcement officer of equal or lesser rank to the 
     officer who is the subject of the hearing.
       ``(7) Access to evidence.--A law enforcement officer who is 
     brought before a disciplinary hearing board shall be provided 
     access to all transcripts, records, written statements, 
     written reports, analyses, and electronically recorded 
     information pertinent to the case that--
       ``(A) contain exculpatory information;
       ``(B) are intended to support any disciplinary action; or
       ``(C) are to be introduced in the disciplinary hearing.
       ``(8) Identification of witnesses.--The disciplinary 
     advocate for the law enforcement agency of which the officer 
     who is the subject of the hearing is a member shall notify 
     the law enforcement officer, or his attorney if he is 
     represented by counsel, not later than 15 days prior to the 
     hearing, of the name and addresses of all witnesses for the 
     law enforcement agency.
       ``(9) Copy of investigative file.--The disciplinary 
     advocate for the law enforcement agency of which the officer 
     who is the subject of the hearing is a member shall provide 
     to the law enforcement officer, at the law enforcement 
     officer's request, not later than 15 days prior to the 
     hearing, a copy of the investigative file, including all 
     exculpatory and inculpatory information but excluding 
     confidential sources.
       ``(10) Examination of physical evidence.--The disciplinary 
     advocate for the law enforcement agency of which the officer 
     who is the subject of the hearing is a member shall notify 
     the law enforcement officer, at the officer's request, not 
     later than 15 days prior to the hearing, of all physical, 
     nondocumentary evidence, and provide reasonable date, time, 
     place, and manner for the officer to examine such evidence at 
     least 10 days prior to the hearing.
       ``(11) Summonses.--The hearing board shall have the power 
     to issue summonses to compel testimony of witnesses and 
     production of documentary evidence. If confronted with a 
     failure to comply with a summons, the hearing officer or 
     board may petition a court to issue an order, with failure to 
     comply being subject to contempt of court.
       ``(12) Closed hearing.--A disciplinary hearing shall be 
     closed to the public unless the law enforcement officer who 
     is the subject of the hearing requests, in writing, that the 
     hearing be open to specified individuals or the general 
     public.
       ``(13) Recordation.--All aspects of a disciplinary hearing, 
     including prehearing motions, shall be recorded by audio 
     tape, video tape, or transcription.
       ``(14) Sequestration of witnesses.--Either side in a 
     disciplinary hearing may move for and be entitled to 
     sequestration of witnesses.
       ``(15) Testimony under oath.--The hearing officer or board 
     shall administer an oath or affirmation to each witness, who 
     shall testify subject to the applicable laws of perjury.
       ``(16) Verdict on each charge.--At the conclusion of all 
     the evidence, and after oral argument from both sides, the 
     hearing officer or board shall deliberate and render a 
     verdict on each charge.
       ``(17) Burden of persuasion.--The prosecutor's burden of 
     persuasion shall be by clear and convincing evidence as to 
     each charge involving false representation, fraud, 
     dishonesty, deceit, or criminal behavior and by a 
     preponderance of the evidence as to all other charges.
       ``(18) Finding of not guilty.--If the law enforcement 
     officer is found not guilty of the disciplinary violations, 
     the matter is concluded and no disciplinary action may be 
     taken.
       [[Page E316]] ``(19) Finding of guilty.--If the law 
     enforcement officer is found guilty, the hearing officer or 
     board shall make a written recommendation of a penalty. The 
     sentencing authority may not impose greater than the penalty 
     recommended by the hearing officer or board.
       ``(20) Appeal.--A law enforcement officer may appeal from a 
     final decision of a law enforcement agency to a court to the 
     extent available in any other administrative proceeding, in 
     accordance with the applicable State law.
       ``(g) Waiver of Rights.--A law enforcement officer may 
     waive any of the rights guaranteed by this section subsequent 
     to the time that the officer has been notified that the 
     officer is under investigation. Such a waiver shall be in 
     writing and signed by the officer.
       ``(h) Summary Punishment and Emergency Suspension.--
       ``(1) In general.--This section does not preclude a State 
     from providing for summary punishment or emergency 
     suspension.
       ``(2) Health benefits.--An emergency suspension shall not 
     affect or infringe on the health benefits of a law 
     enforcement officer or the officer's dependents.
       ``(i) Retaliation for Exercising Rights.--There shall be no 
     penalty or threat of penalty against a law enforcement 
     officer for the exercise of the officer's rights under this 
     section.
       ``(j) Other Remedies Not Impaired.--Nothing in this section 
     shall be construed to impair any other legal right or remedy 
     that a law enforcement officer may have as a result of a 
     constitution, statute, ordinance, regulation, collective 
     bargaining agreement or other sources of rights.
       ``(k) Declaratory or Injunctive Relief.--A law enforcement 
     officer who is being denied any right afforded by this 
     section may petition a State court for declaratory or 
     injunctive relief to prohibit the law enforcement agency from 
     violating such right.
       ``(l) Prohibition of Adverse Material in Officer's File.--A 
     law enforcement agency shall not insert any adverse material 
     into the file of any law enforcement officer, or possess or 
     maintain control over any adverse material in any form within 
     the law enforcement agency, unless the officer has had an 
     opportunity to review and comment in writing on the adverse 
     material.
       ``(m) Disclosure of Personal Assets.--A law enforcement 
     officer shall not be required or requested to disclose any 
     item of the officer's personal property, income, assets, 
     sources of income, debts, personal or domestic expenditures 
     (including those of any member of the officer's household), 
     unless--
       ``(1) the information is necessary to the investigation of 
     a violation of any Federal, State or local law, rule, or 
     regulation with respect to the performance of official 
     duties; and
       ``(2) such disclosure is required by Federal, State, or 
     local law.
       ``(n) States' Rights.--This section does not preempt State 
     laws in effect on the date of enactment of this Act that 
     confer rights that equal or exceed the rights and coverage 
     afforded by this section. This section shall not be a bar to 
     the enactment of a police officer's bill of rights, or 
     similar legislation, by any State. A State law which confers 
     fewer rights or provides less protection than this section 
     shall be preempted by this section.
       ``(o) Mutually Agreed Upon Collective Bargaining 
     Agreements.--This section does not preempt existing mutually 
     agreed upon collective bargaining agreements in effect on the 
     date of enactment of this Act that are substantially similar 
     to the rights and coverage afforded under this section.''.
       (b) Technical Amendment.--The table of contents of title I 
     of the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. preceding 3701) is amended by inserting after the item 
     relating to section 818 the following new item:

``Sec. 819. Rights of law enforcement officers.''.
Vol. 141


WASHINGTON, THURSDAY, FEBRUARY 9, 1995

No. 26


House of Representatives