[Congressional Record Volume 149, Number 90 (Wednesday, June 18, 2003)]
[Senate]
[Pages S8127-S8131]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. BIDEN (for himself, Mr. McConnell, Mr. Bunning, and Mr.
Graham of South Carolina):
S. 1277. 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 discipline, accountability, and due
process laws; to the Committee on the Judiciary.
Mr. BIDEN. Mr. President, I rise to introduce the Law Enforcement
Discipline, Accountability, and Due Process Act of 2003, along with the
Chairman of the Judiciary Subcommittee on Crime, Corrections and
Victims' Rights Senator Graham, Senator McConnell and Senator Bunning.
These are trying times for the men and women on our front lines
providing domestic security, our Nation's law enforcement personnel.
State and local fiscal problems are forcing many communities to cut
their police budgets. Each change in the Nation's homeland security
alert level results in increased overtime and other costs for local law
enforcement. Just yesterday, the FBI reported that the number of
murders and rapes was up across the country in 2002. And this
Administration is determined to dramatically scale back Federal crime-
fighting initiatives like the COPS program, a proven initiative that
has been hailed as one of the keys to the crime-drop of the nineties.
At the same time, the men and women of law enforcement work in
extremely dangerous environments. An average of 165 police officers are
killed in the line of duty every year. And at times, internal police
investigations and administrative hearings do not provide officers with
basic protections. According to the National Association of Police
Organizations, ``[i]n roughly half of the states in this country,
officers enjoy some legal protections against false accusations and
abusive conduct, but hundreds of thousands of officers have very
limited due process rights and confront limitations on their exercise
of other rights, such as the right to engage in political activities.''
The Fraternal Order of Police notes that, ``[i]n a startling number of
jurisdictions throughout this country, law enforcement officers have no
procedural or administrative protections whatsoever; in fact, they can
be, and frequently are, summarily dismissed from their jobs without
explanation. Officers who lose their careers due to administrative or
political expediency almost always find it impossible to find new
employment in public safety. An officer's reputation, once tarnished by
accusation, is almost impossible to restore.''
[[Page S8128]]
This legislation we introduce today seeks to provide officers with
certain basic protections in those jurisdictions where such workplace
protections are not currently provided. This bill allows law
enforcement officials to engage in political activities. It provides
standards and procedures to guide State and local law enforcement
agencies during internal investigations, interrogations, and
administrative disciplinary hearings of law enforcement officers, and
it calls upon States to develop and enforce these disciplinary
procedures. The bill would preempt State laws which confer fewer rights
than those provided for in the legislation, but it would not preempt
any State or local laws that confer rights or protections that are
equal to or exceed the rights and protections afforded in the bill. My
own State of Delaware has its own law enforcement officers' bill of
rights, and as such Delaware would not be impacted by the provisions of
this bill. I am pleased that the bill has earned the endorsement of the
Fraternal Order of Police and of the National Association of Police
Organizations.
Beyond benefiting those on the front lines of local law enforcement,
this bill would enhance the ability of our citizens to hold their local
police accountable if they do transgress while on the job. The
legislation includes provisions that will ensure citizen complaints
against police officers are investigated, and that citizens are
informed of the outcome of these investigations. The bill balances the
rights of police officers with the rights of citizens to raise valid
concerns about the conduct of some of these officers. In addition, I
have consulted with constitutional experts who have opined that the
bill is consistent with Congress' powers under the Commerce Clause and
that it does not run afoul of the Supreme Court's Tenth Amendment
jurisprudence.
While I believe that the bill we introduce today takes the right
approach, I want to note the International Association of Chiefs of
Police's opposition to this measure. In April of this year I met with
Richmond, California Chief of Police Joseph Samuels, the president of
the IACP. Chief Samuels and I acknowledged that we disagreed on this
bill, but I pledged to him that their concerns would be heard and taken
into consideration as the bill we introduce today is debated in
Congress. It is my view that without a meeting of the minds between
police management and union officials on this issue, enactment of a
meaningful law enforcement officers' bill of rights will be difficult.
It is my hope that the newly-constituted Subcommittee on Crime,
Corrections and Victims' Rights, on which I serve as ranking member,
will hold a hearing on this measure. That subcommittee is the proper
forum in which to debate the merits of our approach to guaranteeing
basic procedural safeguards to the men and women of law enforcement.
I urge my colleagues to join Senators Graham, McConnell, Bunning and
me in providing all of the Nation's law enforcement officers with the
basic rights they deserve.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the Bill was ordered to be printed in the
Record, as follows:
S. 1277
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 2003''.
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--
(i) the due process and political rights of law enforcement
officers;
(ii) fair and thorough internal investigations and
interrogations of and disciplinary proceedings against law
enforcement officers; and
(iii) 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.
(a) In General.--Part H of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3781 et seq.)
is amended by adding at the end the following:
``SEC. 820. 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, 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 or others or
the property of others.
``(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 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, 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
[[Page S8129]]
1204, except the terms do not include the United States, or
any department, agency, or instrumentality thereof.
``(8) Summary punishment.--The term `summary punishment'
means punishment imposed--
``(A) for a violation of law that does not result in any
disciplinary action; or
``(B) for a violation of law 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).
[[Page S8130]]
``(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
[[Page S8131]]
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 2001, 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 2001, 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.''.
(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. 3711 et seq.) is amended by inserting after the item
relating to section 819 the following:
``Sec. 820. Discipline, accountability, and due process of State and
local law enforcement officers.''.
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.
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