[Congressional Record Volume 151, Number 38 (Wednesday, April 6, 2005)]
[Senate]
[Pages S3283-S3288]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BIDEN (for himself, Mr. Specter, Mr. McConnell, Mrs. 
        Murray, Mr. Dayton, Mr. Chambliss, Mr. Corzine, and Ms. 
        Cantwell):
  S. 718. 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, and 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; 
to the Committee on the Judiciary.
  Mr. BIDEN. Mr. President, I rise to introduce the State and Local Law 
Enforcement Discipline, Accountability, and Due Process Act of 2005, 
along with Senator Specter, Senator McConnell, Senator Chambliss, 
Senator Dayton, Senator Murray, Senator Corzine, and Senator Cantwell.
  These are trying times for the men and women on our front lines who 
provide our domestic security and public safety--our Nation's law 
enforcement personnel. In fact, our men and women in blue are facing 
what I have called a perfect storm. First, they are being called upon 
to undertake more responsibilities than ever before. They are being 
required to undertake homeland security duties that weren't required 
before September 11, and, at the same time, the FBI is reprogramming 
its field agents from crime to terrorism

[[Page S3284]]

cases. While I don't disagree that this shift in resources is 
appropriate, it undoubtedly leaves a gap in law enforcement efforts to 
combat drugs and crime, and State and local agencies must fill this 
gap. At the same time, budget shortages at the local level are forcing 
personnel lay-offs, an increasing use of overtime to meet demand, and 
the forced elimination of critical crime prevention programs. Local law 
enforcement is struggling to keep up with service calls. To add insult 
to injury, Federal assistance for State and local law enforcement has 
been reduced by billions over the last 2 years--with the proposed 
elimination of the COPS hiring program--a proven initiative that has 
been hailed as one of the keys to the crime-drop of the nineties. Quite 
simply, we are asking law enforcement to do more with less, and I 
believe that public safety is being compromised as a result of 
Congress's unfortunate choices on the Federal budget.
  We may argue about the Federal responsibility to provide financial 
assistance to State and local law enforcement, however, few will 
dispute the sacrifices that our men and women in law enforcement make 
for our nation. Indeed, they face one of the most difficult work 
environments imaginable--an average of 165 police officers are killed 
in the line of duty every year. Our Nation's law enforcement officers 
put themselves in harms way on a daily basis to ensure the safety of 
their fellow citizens and the domestic security of our Nation. 
Nevertheless, many times these brave officers do not receive basic 
rights if they become involved in internal police investigations or 
administrative hearings. 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.'' Similarly, 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.''
  The legislation that we introduce today, which is endorsed by the 
Fraternal Order of Police and of the National Association of Police 
Organizations, seeks to provide officers with certain basic protections 
in those jurisdictions where such workplace protections are not 
currently provided. First, this bill allows law enforcement officials 
to engage in political activities when they are off-duty. Second, it 
provides standards and procedures to guide State and local law 
enforcement agencies during internal investigations, interrogations, 
and administrative disciplinary hearings. Additionally, 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. For example, my own State 
of Delaware has a law enforcement officers' bill of rights, and those 
procedures would not be impacted by the provisions of this bill.

  This bill will also include important provisions that will enhance 
the ability of citizens to hold their local police departments 
accountable. 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.
  I would also like to note that I understand the objections that many 
management groups, including the International Association of Chiefs of 
Police, have to this measure. I have discussed this with them, and I've 
pledged that their views will be heard and considered as this bill is 
debated in Congress. It is my view that we must bridge this gap. 
Without a meeting of the minds between police management and union 
officials, the enactment of a meaningful law enforcement officers' bill 
of rights will be difficult. Law enforcement officials are facing 
unprecedented challenges, and management and labor simply must work 
together on this issue and the numerous other issues facing the law 
enforcement community.
  I urge my colleagues to join Senators Specter, McConnell, Chambliss, 
Dayton, Murray, Corzine, Cantwell, 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. 718

       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 2005''.

     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.

       (a) In General.--Part H of title I of the Omnibus Crime 
     Control and Safe Streets Act

[[Page S3285]]

     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 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 
     of such officer 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 
     paragraph (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

[[Page S3286]]

     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 Hearings.--
       ``(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 law enforcement 
     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

[[Page S3287]]

       ``(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 record 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 generated after the effective date of the State and 
     Local Law Enforcement Discipline, Accountability, and Due 
     Process Act of 2005 to be 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 2005, 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.

[[Page S3288]]

       ``(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 2005, 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 or the amendments made by 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.
                                 ______