II

104TH CONGRESS

1ST SESSION S. 334

To amend title I of the Omnibus Crime Control and Safe Streets Act of

1968 to encourage States to enact a Law Enforcement Officers’ Bill

of Rights, to provide standards and protection for the conduct of internal

police investigations, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 2 (legislative day, JANUARY 30), 1995

Mr. MCCONNELL (for himself and Mr. BIDEN) 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 encourage States to enact a

Law Enforcement Officers’ Bill of Rights, to provide

standards and protection for the conduct of internal police investigations, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Law Enforcement Offi5 cers’ Bill of Rights Act of 1995’’.
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1 SEC. 2. RIGHTS OF LAW ENFORCEMENT OFFICERS.

2 (a) IN GENERAL.—Part H of title I of the Omnibus

3 Crime Control and Safe Streets Act of 1968 (42 U.S.C.

4 3781 et seq.) is amended by adding at the end the follow5 ing new section:

6 ‘‘RIGHTS OF LAW ENFORCEMENT OFFICERS

7 ‘‘SEC. 819. (a) DEFINITIONS.—In this section—

8 ‘‘ ‘disciplinary action’ means the suspension,

9 demotion, reduction in pay or other employment

10 benefit, dismissal, transfer, or similar action taken

11 against a law enforcement officer as punishment for

12 misconduct.

13 ‘‘ ‘disciplinary hearing’ means an administra14 tive hearing initiated by a law enforcement agency

15 against a law enforcement officer, based on probable

16 cause to believe that the officer has violated or is

17 violating a rule, regulation, or procedure related to

18 service as an officer and is subject to disciplinary ac19 tion.

20 ‘‘ ‘emergency suspension’ means temporary ac21 tion imposed by the head of the law enforcement

22 agency when that official determines that there is

23 probable cause to believe that a law enforcement of24 ficer—

25 ‘‘(A) has committed a felony; or
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1 ‘‘(B) poses an immediate threat to the

2 safety of the officer or others or the property

3 of others.

4 ‘‘ ‘investigation’—

5 ‘‘(A) means the action of a law enforce6 ment agency, acting alone or in cooperation

7 with another agency, or a division or unit with8 in an agency, or the action of an individual law

9 enforcement officer, taken with regard to an10 other enforcement officer, if such action is

11 based on reasonable suspicion that the law en12 forcement officer has violated, is violating, or

13 will in the future violate a statute or ordinance,

14 or administrative rule, regulation, or procedure

15 relating to service as a law enforcement officer;

16 and

17 ‘‘(B) includes—

18 ‘‘(i) asking questions of other law en19 forcement officers or nonlaw enforcement

20 officers;

21 ‘‘(ii) conducting observations;

22 ‘‘(iii) evaluating reports, records, or

23 other documents; and

24 ‘‘(iv) examining physical evidence.
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1 ‘‘ ‘law enforcement agency’ means a State or

2 local public agency charged by law with the duty to

3 prevent or investigate crimes or apprehend or hold

4 in custody persons charged with or convicted of

5 crimes.

6 ‘‘ ‘law enforcement officer’ and ‘officer’—

7 ‘‘(A) mean a member of a law enforcement

8 agency serving in a law enforcement position,

9 which is usually indicated by formal training

10 (regardless of whether the officer has completed

11 or been assigned to such training) and usually

12 accompanied by the power to make arrests; and

13 ‘‘(B) include—

14 ‘‘(i) a member who serves full time,

15 whether probationary or nonprobationary,

16 commissioned or noncommissioned, career

17 or noncareer, tenured or nontenured, and

18 merit or nonmerit; and

19 ‘‘(ii) the chief law enforcement officer

20 of a law enforcement agency.

21 ‘‘ ‘summary punishment’ means punishment im22 posed for a minor violation of a law enforcement

23 agency’s rules and regulations that does not result

24 in suspension, demotion, reduction in pay or other

25 employment benefit, dismissal, or transfer.
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1 ‘‘(b) APPLICATION OF SECTION.—

2 ‘‘(1) IN GENERAL.—This section sets forth

3 rights that shall be afforded a law enforcement offi4 cer who is the subject of an investigation.

5 ‘‘(2) NONAPPLICABILITY.—This section does

6 not apply in the case of—

7 ‘‘(A) a criminal investigation of a law en8 forcement officer’s conduct; or

9 ‘‘(B) a nondisciplinary action taken in

10 good faith on the basis of a law enforcement of11 ficer’s employment related performance.

12 ‘‘(c) POLITICAL ACTIVITY.—Except when on duty or

13 acting in an official capacity, no law enforcement officer

14 shall be prohibited from engaging in political activity or

15 be denied the right to refrain from engaging in such activ16 ity.

17 ‘‘(d) RIGHTS OF LAW ENFORCEMENT OFFICERS

18 WHILE UNDER INVESTIGATION.— When a law enforce19 ment officer is under investigation that could lead to dis20 ciplinary action, the following minimum standards shall

21 apply:

22 ‘‘(1) NOTICE OF INVESTIGATION.—A law en23 forcement officer shall be notified of the investiga24 tion prior to being interviewed. Notice shall include

25 the general nature and scope of the investigation
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1 and all departmental violations for which reasonable

2 suspicion exists. No investigation based on a com3 plaint from outside the law enforcement agency may

4 commence unless the complainant provides a signed

5 detailed statement. An investigation based on a com6 plaint from outside the agency shall commence with7 in 15 days after receipt of the complaint by the

8 agency.

9 ‘‘(2) NOTICE OF PROPOSED FINDINGS AND REC10 OMMENDATION.—At the conclusion of the investiga11 tion, the person in charge of the investigation shall

12 inform the law enforcement officer under investiga13 tion, in writing, of the investigative findings and any

14 recommendation for disciplinary action that the per15 son intends to make.

16 ‘‘(e) RIGHTS OF LAW ENFORCEMENT OFFICERS

17 PRIOR TO AND DURING QUESTIONING.—When a law en18 forcement officer is subjected to questioning that could

19 lead to disciplinary action, the following minimum stand20 ards shall apply:

21 ‘‘(1) REASONABLE HOURS.—Questioning of a

22 law enforcement officer shall be conducted at a rea23 sonable hour, preferably when the law enforcement

24 officer is on duty, unless exigent circumstances oth25 erwise require.
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1 ‘‘(2) PLACE OF QUESTIONING.—Questioning of

2 the law enforcement officer shall take place at the

3 offices of the persons who are conducting the inves4 tigation or the place where the law enforcement offi5 cer reports for duty, unless the officer consents in

6 writing to being questioned elsewhere.

7 ‘‘(3) IDENTIFICATION OF QUESTIONER.—The

8 law enforcement officer under investigation shall be

9 informed, at the commencement of any questioning,

10 of the name, rank, and command of the officer con11 ducting the questioning.

12 ‘‘(4) SINGLE QUESTIONER.—During any single

13 period of questioning of the law enforcement officer,

14 all questions shall be asked by or through a single

15 investigator.

16 ‘‘(5) NOTICE OF NATURE OF INVESTIGATION.—

17 The law enforcement officer under investigation

18 shall be informed in writing of the nature of the in19 vestigation prior to any questioning.

20 ‘‘(6) REASONABLE TIME PERIOD.—Any ques21 tioning of a law enforcement officer in connection

22 with an investigation shall be for a reasonable period

23 of time and shall allow for reasonable periods for the

24 rest and personal necessities of the law enforcement

25 officer.
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1 ‘‘(7) NO THREATS OR PROMISES.—Threats

2 against, harassment of, or promise of reward shall

3 not be made in connection with an investigation to

4 induce the answering of any question. No statement

5 given by the officer may be used in a subsequent

6 criminal proceeding unless the officer has received a

7 written grant of use and derivative use immunity or

8 transactional immunity.

9 ‘‘(8) RECORDATION.—All questioning of any

10 law enforcement officer in connection with the inves11 tigation shall be recorded in full, in writing or by

12 electronic device, and a copy of the transcript shall

13 be made available to the officer under investigation.

14 ‘‘(9) COUNSEL.—The law enforcement officer

15 under investigation shall be entitled to counsel (or

16 any other one person of the officer’s choice) at any

17 questioning of the officer, unless the officer consents

18 in writing to being questioned outside the presence

19 of counsel.

20 ‘‘(f) DISCIPLINARY HEARING.—

21 ‘‘(1) NOTICE OF OPPORTUNITY FOR HEAR22 ING.—Except in a case of summary punishment or

23 emergency suspension described in subsection (h), if

24 an investigation of a law enforcement officer results

25 in a recommendation of disciplinary action, the law
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1 enforcement agency shall notify the law enforcement

2 officer that the law enforcement officer is entitled to

3 a hearing on the issues by a hearing officer or board

4 prior to the imposition of any disciplinary action.

5 ‘‘(2) REQUIREMENT OF DETERMINATION OF

6 VIOLATION.—No disciplinary action may be taken

7 unless a hearing officer or board determines, pursu8 ant to a fairly conducted disciplinary hearing, that

9 the law enforcement officer violated a statute, ordi10 nance, or published administrative rule, regulation,

11 or procedure.

12 ‘‘(3) TIME LIMIT.—No disciplinary charges may

13 be brought against a law enforcement officer unless

14 filed within 90 days after the commencement of an

15 investigation, except for good cause shown.

16 ‘‘(4) NOTICE OF FILING OF CHARGES.—The

17 law enforcement agency shall provide written, actual

18 notification to the law enforcement officer, not later

19 than 30 days after the filing of disciplinary charges,

20 of the following:

21 ‘‘(A) The date, time, and location of the

22 disciplinary hearing, which shall take place not

23 sooner than 30 days and not later than 60 days

24 after notification to the law enforcement officer
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1 under investigation unless waived in writing by

2 the officer.

3 ‘‘(B) The name and mailing address of the

4 hearing officer.

5 ‘‘(C) The name, rank, and command of the

6 prosecutor, if a law enforcement officer, or the

7 name, position, and mailing address of the

8 prosecutor, if not a law enforcement officer.

9 ‘‘(5) REPRESENTATION.—During a disciplinary

10 hearing an officer shall be entitled to be represented

11 by counsel or nonattorney representative.

12 ‘‘(6) HEARING BOARD AND PROCEDURE.—(A)

13 A State shall determine the composition of a discipli14 nary hearing board and the procedures for a discipli15 nary hearing.

16 ‘‘(B) A disciplinary hearing board that includes

17 employees of the law enforcement agency of which

18 the officer who is the subject of the hearing is a

19 member shall include at least 1 law enforcement offi20 cer of equal or lesser rank to the officer who is the

21 subject of the hearing. 

22 ‘‘(7) ACCESS TO EVIDENCE.—A law enforce23 ment officer who is brought before a disciplinary

24 hearing board shall be provided access to all tran25 scripts, records, written statements, written reports,
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1 analyses, and electronically recorded information

2 pertinent to the case that—

3 ‘‘(A) contain exculpatory information;

4 ‘‘(B) are intended to support any discipli5 nary action; or 

6 ‘‘(C) are to be introduced in the discipli7 nary hearing.

8 ‘‘(8) IDENTIFICATION OF WITNESSES.—The

9 disciplinary advocate for the law enforcement agency

10 of which the officer who is the subject of the hearing

11 is a member shall notify the law enforcement officer,

12 or his attorney if he is represented by counsel, not

13 later than 15 days prior to the hearing, of the name

14 and addresses of all witnesses for the law enforce15 ment agency.

16 ‘‘(9) COPY OF INVESTIGATIVE FILE.—The dis17 ciplinary advocate for the law enforcement agency of

18 which the officer who is the subject of the hearing

19 is a member shall provide to the law enforcement of20 ficer, at the law enforcement officer’s request, not

21 later than 15 days prior to the hearing, a copy of

22 the investigative file, including all exculpatory and

23 inculpatory information but excluding confidential

24 sources.
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1 ‘‘(10) EXAMINATION OF PHYSICAL EVI2 DENCE.—The disciplinary advocate for the law en3 forcement agency of which the officer who is the

4 subject of the hearing is a member shall notify the

5 law enforcement officer, at the officer’s request, not

6 later than 15 days prior to the hearing, of all phys7 ical, nondocumentary evidence, and provide reason8 able date, time, place, and manner for the officer to

9 examine such evidence at least 10 days prior to the

10 hearing.

11 ‘‘(11) SUMMONSES.—The hearing board shall

12 have the power to issue summonses to compel testi13 mony of witnesses and production of documentary

14 evidence. If confronted with a failure to comply with

15 a summons, the hearing officer or board may peti16 tion a court to issue an order, with failure to comply

17 being subject to contempt of court. 

18 ‘‘(12) CLOSED HEARING.—A disciplinary hear19 ing shall be closed to the public unless the law en20 forcement officer who is the subject of the hearing

21 requests, in writing, that the hearing be open to

22 specified individuals or the general public.

23 ‘‘(13) RECORDATION.—All aspects of a discipli24 nary hearing, including prehearing motions, shall be

25 recorded by audio tape, video tape, or transcription.
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1 ‘‘(14) SEQUESTRATION OF WITNESSES.—Either

2 side in a disciplinary hearing may move for and be

3 entitled to sequestration of witnesses.

4 ‘‘(15) TESTIMONY UNDER OATH.—The hearing

5 officer or board shall administer an oath or affirma6 tion to each witness, who shall testify subject to the

7 applicable laws of perjury.

8 ‘‘(16) VERDICT ON EACH CHARGE.—At the con9 clusion of all the evidence, and after oral argument

10 from both sides, the hearing officer or board shall

11 deliberate and render a verdict on each charge.

12 ‘‘(17) BURDEN OF PERSUASION.—The prosecu13 tor’s burden of persuasion shall be by clear and con14 vincing evidence as to each charge involving false

15 representation, fraud, dishonesty, deceit, or criminal

16 behavior and by a preponderance of the evidence as

17 to all other charges.

18 ‘‘(18) FINDING OF NOT GUILTY.—If the law en19 forcement officer is found not guilty of the discipli20 nary violations, the matter is concluded and no dis21 ciplinary action may be taken.

22 ‘‘(19) FINDING OF GUILTY.—If the law enforce23 ment officer is found guilty, the hearing officer or

24 board shall make a written recommendation of a

25 penalty. The sentencing authority may not impose
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1 greater than the penalty recommended by the hear2 ing officer or board.

3 ‘‘(20) APPEAL.—A law enforcement officer may

4 appeal from a final decision of a law enforcement

5 agency to a court to the extent available in any

6 other administrative proceeding, in accordance with

7 the applicable State law.

8 ‘‘(g) WAIVER OF RIGHTS.—A law enforcement officer

9 may waive any of the rights guaranteed by this section

10 subsequent to the time that the officer has been notified

11 that the officer is under investigation. Such a waiver shall

12 be in writing and signed by the officer.

13 ‘‘(h) SUMMARY PUNISHMENT AND EMERGENCY SUS14 PENSION.—

15 ‘‘(1) IN GENERAL.—This section does not pre16 clude a State from providing for summary punish17 ment or emergency suspension.

18 ‘‘(2) HEALTH BENEFITS.—An emergency sus19 pension shall not affect or infringe on the health

20 benefits of a law enforcement officer or the officer’s

21 dependents.

22 ‘‘(i) RETALIATION FOR EXERCISING RIGHTS.—There

23 shall be no penalty or threat of penalty against a law en24 forcement officer for the exercise of the officer’s rights

25 under this section.
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1 ‘‘(j) OTHER REMEDIES NOT IMPAIRED.—Nothing in

2 this section shall be construed to impair any other legal

3 right or remedy that a law enforcement officer may have

4 as a result of a constitution, statute, ordinance, regula5 tion, collective bargaining agreement or other sources of

6 rights.

7 ‘‘(k) DECLARATORY OR INJUNCTIVE RELIEF.—A law

8 enforcement officer who is being denied any right afforded

9 by this section may petition a State court for declaratory

10 or injunctive relief to prohibit the law enforcement agency

11 from violating such right.

12 ‘‘(l) PROHIBITION OF ADVERSE MATERIAL IN OFFI13 CER’S FILE.—A law enforcement agency shall not insert

14 any adverse material into the file of any law enforcement

15 officer, or possess or maintain control over any adverse

16 material in any form within the law enforcement agency,

17 unless the officer has had an opportunity to review and

18 comment in writing on the adverse material.

19 ‘‘(m) DISCLOSURE OF PERSONAL ASSETS.—A law

20 enforcement officer shall not be required or requested to

21 disclose any item of the officer’s personal property, in22 come, assets, sources of income, debts, personal or domes23 tic expenditures (including those of any member of the of24 ficer’s household), unless—
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1 ‘‘(1) the information is necessary to the inves2 tigation of a violation of any Federal, State or local

3 law, rule, or regulation with respect to the perform4 ance of official duties; and

5 ‘‘(2) such disclosure is required by Federal,

6 State, or local law.

7 ‘‘(n) STATES’ RIGHTS.—This section does not pre8 empt State laws in effect on the date of enactment of this

9 Act that confer rights that equal or exceed the rights and

10 coverage afforded by this section. This section shall not

11 be a bar to the enactment of a police officer’s bill of rights,

12 or similar legislation, by any State. A State law which con13 fers fewer rights or provides less protection than this sec14 tion shall be preempted by this section.

15 ‘‘(o) MUTUALLY AGREED UPON COLLECTIVE BAR16 GAINING AGREEMENTS.—This section does not preempt

17 existing mutually agreed upon collective bargaining agree18 ments in effect on the date of enactment of this Act that

19 are substantially similar to the rights and coverage af20 forded under this section.’’.

21 (b) TECHNICAL AMENDMENT.—The table of contents

22 of title I of the Omnibus Crime Control and Safe Streets

23 Act of 1968 (42 U.S.C. preceding 3701) is amended by

24 inserting after the item relating to section 818 the follow25 ing new item:

‘‘Sec. 819. Rights of law enforcement officers.’’.
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Æ