Declares that an officer shall not be: (1) prohibited from engaging in political activity or be denied the right to refrain from engaging in such activity, except when on duty or acting in an official capacity; and (2) prohibited from being a candidate for an elective office or from serving in such elective office solely because of the officer's status as an officer, with exceptions.
Requires that: (1) each agency adopt and thereafter comply with a written complaint procedure that meets specified requirements; and (2) an investigation based on a complaint from outside the agency commence not later than 15 days after receipt of the complaint by the agency employing the officer against whom the complaint has been made, or any other agency charged with investigating such complaint.
Directs that any officer who is the subject of an investigation be notified of the investigation 24 hours before the commencement of questioning. Establishes rights of officers before and during questioning, including the right to counsel. Requires questioning to be conducted at reasonable hours. Prohibits an officer from being compelled to submit to the use of a lie detector.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 718 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 718
To amend title I of the Omnibus Crime Control and Safe Streets Act of
1968 to provide standards and procedures to guide both State and local
law enforcement agencies and law enforcement officers during internal
investigations, interrogation of law enforcement officers, and
administrative disciplinary hearings, to ensure accountability of law
enforcement officers, to guarantee the due process rights of law
enforcement officers, and to require States to enact law enforcement
discipline, accountability, and due process laws.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 6, 2005
Mr. Biden (for himself, Mr. Specter, Mr. McConnell, Mrs. Murray, Mr.
Dayton, Mr. Chambliss, Mr. Corzine, and Ms. Cantwell) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend title I of the Omnibus Crime Control and Safe Streets Act of
1968 to provide standards and procedures to guide both State and local
law enforcement agencies and law enforcement officers during internal
investigations, interrogation of law enforcement officers, and
administrative disciplinary hearings, to ensure accountability of law
enforcement officers, to guarantee the due process rights of law
enforcement officers, and to require States to enact law enforcement
discipline, accountability, and due process laws.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State and Local Law Enforcement
Discipline, Accountability, and Due Process Act of 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 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 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
``(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.
``(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.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S3283-3284)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S3284-3288)
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